Roberts v. Second Judicial Dist. Court in and for Washoe County, Department 2

• Decision Date: 03 January 1920
• Docket Number: 2413.
• Citation: 185 P. 1067,43 Nev. 332
• Parties: ROBERTS et al. v. SECOND JUDICIAL DIST. COURT IN AND FOR WASHOE COUNTY, DEPARTMENT 2, et al.
• Court: Nevada Supreme Court

185 P. 1067

43 Nev. 332

ROBERTS et al. v. SECOND JUDICIAL DIST. COURT IN AND FOR WASHOE COUNTY, DEPARTMENT 2, et al.

No. 2413.

Supreme Court of Nevada

January 3, 1920

Original mandamus proceedings by C. E. Roberts and others against the Second Judicial District Court of the State of Nevada in and for the County of Washoe, Department 2 thereof, Hon. Thomas F. Moran, Acting Judge therein, and the Scheeline Banking & Trust Company. Writ issued.

M. J Scanlan and James Glynn, both of Reno, for petitioners.

Harlan L. Heward, of Wallace, Idaho, and James T. Boyd, of Reno, for respondents.

DUCKER J.

This is an application for a peremptory writ of mandamus to compel one of the respondents, District Judge Thomas F. Moran, to proceed with the trial of a certain action appealed from the justice court to the district court in which said judge presides.

The petition shows that the respondent Scheeline Banking & Trust Company commenced an action against the petitioners in the justice's court of Reno township for the restitution of certain premises situated in the city of Reno, Nev., let by said company to petitioners. Prior to the commencement of this action the Scheeline Banking & Trust Company served petitioners with a notice, of which the following is a copy:

"Scheeline Banking & Trust Company.

Reno Nevada, Feb. 27, 1919.

Mr. C E. Roberts, No. 116 E. Commercial Row, Reno, Nevada-Dear Sir: Please take notice that on account of noise made by operating room at No. 116 E. Commercial Row as a billiard or pool room interfering with our other tenants in same building, we cannot continue to rent room for occupancy as billiard or pool room after the 31st day of March, 1919. Please be governed accordingly.

Yours very truly, H. Lewers, Cashier."

A verdict and judgment were entered in the action in the justice's court in favor of the respondent company on the 16th day of July, 1919, and thereafter, on the 2d day of August, 1919, a notice of appeal was served by petitioners, and filed in said district court on the 5th day of August, 1919. On motion of the respondent Scheeline Banking & Trust Company, the appeal was dismissed by the district court. The ground of the ruling of the court below in dismissing the appeal was that notice thereof was not filed in the district court with 10 days from the judgment rendered, in accordance with section 5601 of the Revised Laws of Nevada, concerning actions for unlawful detainer.

Petitioners contend that the action was not for unlawful detainer, but for possession and damages, and that, as the appeal was duly perfected within 30 days from the rendition of judgment in the justice's court, as provided by section 5788 of the Revised Laws, the ruling of the district court was error, which can be corrected by mandamus.

Counsel for respondents insist that the action of the district court in dismissing the appeal was a judicial act, within its jurisdiction conferred by the Constitution, and, even if erroneous, cannot be remedied by mandamus. This contention is sustained by several decisions of this court, the latest of which is the case of Ex parte Breckenridge, 34 Nev. 275, 118 P. 687, Ann. Cas. 1914B, 871; but these have all been expressly overruled by the decision in the case of Floyd v. District Court, 36 Nev. 349, 135 P. 922. It was there held that mandamus would lie to compel the district court to proceed with the trial of a case on appeal from the justice's court, where it had acquired jurisdiction, but had erroneously decided that it was without jurisdiction. No question of fact pertaining to jurisdiction was involved in the case of Floyd v. District Court. The lower court based its action on what this court conceived to be a misconstruction of the statute prescribing statutory requirements in taking an appeal from the justice's court, and tantamount to a refusal to take jurisdiction. We are asked to overrule Floyd v. District Court. If the contention were conceded, then the district court has power, by a misconstruction of some statute governing appeals from the justice court, to determine that it has no jurisdiction when the appellant is entitled to a trial on the merits. If it has power to thus divest itself of jurisdiction, then, as a logical consequence, it ought to have discretion by a misconstruction of the law to acquire jurisdiction when it has not. That it has no power to thus invest itself with jurisdiction is a rule of law too well recognized to be paraded in citations.

The proposition is pointedly stated in the dissenting opinion of Justice Paterson, concurred in by Chief Justice Beatty, in the case of Buckley v. Superior Court of Fresno County, 96 Cal. 119, 31 P. 8, decided by the Supreme Court of California:

"If the ruling of the court in the first case was merely erroneous, why was it not merely erroneous in the second case supposed? The court had jurisdiction to hear and decide the motion in the first case, and for that reason it is said its ruling was mere error, although it affirmatively appeared on the record that the court had jurisdiction to hear the appeal. Is it not equally true that in the second case the court had jurisdiction to hear and determine the objection and the motion before it? If its ruling in the one case was merely erroneous, was it not merely erroneous in the other? The error of the court rests in the assumption that, in determining that it has not jurisdiction, although the record affirmatively shows that it has, the superior court may exercise discretion, while it is admitted in determining that it has jurisdiction, when the record shows affirmatively that it has not, there is no discretion in the court, and its order is void. If it be true that a court has no power to say it has jurisdiction when the record shows it has not, the converse of the proposition must be true-that, if the record shows it has jurisdiction, it has no right to say it has not. The question of discretion or error is entirely foreign to the discussion. If the record shows it has jurisdiction, that is the end of it; the court must proceed. It has no power to say that it will not. If the record shows affirmatively that it has not jurisdiction, it has no power to say that it will proceed. In each case the court is bound by the jurisdictional facts appearing of record; it cannot ignore or dispute them. As said in Levy v. Superior Court, 66 Cal. 292, 5 P. 353: 'The case is not like those which are dependent upon the existence of facts aliunde."'

This reasoning seems to us to be entirely sound, and the views expressed were said to be warranted by the authorities in the case of Golden Gate Tile Co. v. Superior Court, 159 Cal. 474, 114 P. 978, which overruled the Buckley Case.

The rule declared in the case of Golden Gate Tile Co. v. Superior Court, supra, that a superior court may not, on an appeal regularly taken from a justice court, divest itself of jurisdiction by dismissing the appeal under a mistaken view of the law, was recognized and approved in the case of Edwards et al. v. Superior Court of Alameda County, 159 Cal. 710, 115 P. 649. In the latter case a dismissal of the appeal under such circumstances was declared to be a refusal to perform a plain statutory duty to decide a cause, the remedy for which is a writ of mandate.

In Griffin Co. v. Howell, 38 Utah, 357, 113 P. 326 also cited in Floyd v. District Court, this doctrine is upheld. While it must be admitted that there is a diversity of opinion among the authorities on the question, we are in accord with the rule declared in Floyd v. District Court, and will adhere to it. It is controlling in this case before us as to the propriety of the writ of mandate, if the lower court has jurisdiction and has sought to renounce it, for here, as there, the record shows affirmatively...