State v. District Court of Seventh Judicial Dist. in and for Mineral County

• Decision Date: 18 January 1929
• Docket Number: 2856. [a1]
• Parties: STATE ex rel. v. DISTRICT COURT OF SEVENTH JUDICIAL DIST. IN AND FOR MINERAL COUNTY et al. NEVADA DOUGLASS GOLD MINES, INC.,
• Court: Nevada Supreme Court

273 P. 659

51 Nev. 206

STATE ex rel. NEVADA DOUGLASS GOLD MINES, INC., v. DISTRICT COURT OF SEVENTH JUDICIAL DIST. IN AND FOR MINERAL COUNTY et al.

No. 2856. ^[a1]

Supreme Court of Nevada

January 18, 1929

Original proceeding in certiorari by the State of Nevada, on the relation of the Nevada Douglass Gold Mines, Incorporated against the District Court of the Seventh Judicial District of the State of Nevada, in and for the County of Mineral, and J. Emmett Walsh, Judge of said court, to inquire into the jurisdiction of the respondent court to render the judgment complained of. Judgment in accordance with opinion.

Cyrus A. Hovey, of Los Angeles, Cal., and Green & Lunsford, of Reno, for petitioner.

C. C Ward, of Mina, and M. A. Diskin, Atty. Gen., for respondents.

COLEMAN J.

This is an original proceeding in certiorari to inquire into the jurisdiction of the respondent court to render the judgment complained of.

The application for the writ alleges that on June 19, 1928 William Royle, as labor commissioner of Nevada, instituted an action in the Seventh judicial district court of Nevada in and for Mineral county against Nevada Douglass Gold Mines, Inc., a Nevada corporation, to recover judgment upon several claims assigned to him for labor alleged to have been performed; that upon filing of the complaint in said action, summons was issued and placed in the hands of the sheriff for service, and that he made purported service thereof by delivering a copy thereof, together with a copy of the complaint, to A. W. Curtis, a director of said defendant company, on June 25, 1928; that on October 1, 1928, the respondent court entered judgment in said action in favor of the plaintiff and against the defendant; and that thereafter execution issued thereon and that the sheriff was proceeding to sell the property of the defendant. The application states that said company had never appeared in said action by demurrer or otherwise; it is verified by one Stephenson, who states on oath that he is the agent of said company and verified the same on its behalf.

The respondent demurred and also moved to quash. We will consider them together.

It is contended that the application for the writ does not state facts sufficient to warrant its issuance; that it is not entitled in the name of any one interested in the proceeding; that it is not signed by an attorney who is a member of the bar of this state; and that it does not show that applicant has no plain, speedy, and adequate remedy by appeal.

The application for the writ is designated a petition and is entitled "State of Nevada, on the Relation of Nevada Douglass Gold Mines, Incorporated, Petitioner, v. The District Court, etc., Respondent." The title is not a very appropriate one, since the state of Nevada has no interest in the matter; but we think that will not justify a dismissal of the proceeding. Section 5684, Rev. Laws, provides the writ of certiorari may be granted "on application," and section 5685 provides that "the application" shall be made on affidavit. The application in this matter, though entitled as above stated, is in the form of an affidavit, and is in substantial compliance with the requirements of the statute. We can perceive no merit in the objection made, since the affidavit states that the affiant is an agent of the company beneficially interested, and against which the alleged judgment was rendered.

We think the application states facts sufficient to justify the issuance of the writ. The applicant is a Nevada corporation. Statutes of 1913, p. 65, names the persons upon whom a summons must be served. None of the persons named in the statute was served...