State v. Murphy

• Decision Date: 02 May 1885
• Citation: 6 P. 840,19 Nev. 89
• Parties: STATE ex rel. KEANE v. MURPHY, Judge, etc.
• Court: Nevada Supreme Court

6 P. 840

19 Nev. 89

STATE ex rel. KEANE v. MURPHY, Judge, etc.

Supreme Court of Nevada

May 2, 1885

Application for mandamus.

Wells & Taylor, for relator.

Crocker Curler & Bowler, for respondent.

LEONARD J.

This is an application for a writ of mandate to compel respondent to settle a statement on motion for new trial in the case of D. D. Murphy v. N. C. Keane et al., wherein judgment was recovered against defendants for the sum of $484.89, besides costs. The action was tried by the court without a jury, and after taking the matter under advisement for several days, the court announced its conclusions orally in open court, and instructed plaintiff's attorneys to prepare findings accordingly. No findings were filed, but on the same day judgment was signed and entered for the sum above stated, besides costs.

At the time of the oral announcement, counsel for defendant, Keane relator herein, were in court and heard the conclusions and orders above referred to. Within half an hour thereafter, one of relator's attorneys requested plaintiff's attorneys "to add no more costs in entering the judgment than they could help," and plaintiff's attorneys consented. No written notice of the rendering of the decision was given or received, as required by section 197 of the practice act, but in 35 days after the entry of judgment relator's attorneys, by other means, learned that such entry had been made, and in 44 days prepared, and caused to be filed and served, a proper statement on motion for a new trial, on the grounds of insufficiency of evidence to justify the decision and judgment of the court, and errors in law occurring at the trial which were duly excepted to by defendant. Counsel for plaintiff proposed amendments which relator refused to accept; but on the same day, and, we shall presume, at the same time, gave notice to relator's attorneys that on a subsequent day stated they would move the court to disregard and decline to consider plaintiff's notice of intention to move for a new trial and the statement thereon, because they had not been made in time. Thereupon relator, by his attorneys, notified plaintiff's attorneys that on a subsequent day named the statement and amendments would be submitted to respondent at his chambers for settlement. On the day named counsel for plaintiff protested against any settlement of the statement on the ground that no notice of motion for a new trial had been given within the time required by the statute.

Upon the facts stated above, respondent held that no written notice of the rendering of the decision was required, and consequently that the notice of intention to move for a new trial was not given in time. He therefore denied the application to settle the statement.

1. It is argued by counsel for respondent that relator is not entitled to the remedy sought-- First, because, upon contested issues of fact and law, respondent arrived at a judicial determination, and that the office of mandamus is not to correct errors; and, second, because relator has another plain, speedy, and adequate remedy at law, to-wit: the right of appeal from respondent's order denying his application for a settlement of the statement. It is firmly established that " mandamus will not issue to control discretion or to revise judicial action. Where the act to be done is judicial in its character, the writ will not direct in what manner the inferior court shall act, but only direct it to act." People v. Weston, 28 Cal. 640; Hoole v. Kinkead, 16 Nev. 218; State v. Wright, 4 Nev. 119. But there is a limitation to the above rule, which is stated by Mr. Hayne as follows:

"The rule above stated applies only to the act to be commanded by the writ, and not to the determination of purely preliminary questions. In every case in which an officer is to take any action,--as for example, the auditing of a claim by a comptroller, its payment by a treasurer, the levying of a tax by municipal authorities, the execution of a deed by a sheriff, the settlement of a statement or bill of exceptions by a judge, and the like,--the officer must first make up his mind as to whether the conditions upon which he is to act exist. In arriving at his conclusion he may have to ascertain the meaning of a law, or satisfy himself as to the existence of facts, or both. Such questions may be of extreme difficulty. The law governing the case may be obscure and ambiguous, and the facts may depend upon conflicting evidence. But they have to be determined by the officer in every case, whatever may be the nature of the act to be performed. In determining them he must, as a matter of course, exercise his judgment, and in one sense may be said to act judicially. Such questions, however, are distinct from the act to be performed. They are not what the writ commands, if issued. The writ does not command the officer to make up his mind as to whether the act is proper to be performed. The court determines that question before issuing the writ. *** The question must be determined, in the first instance, by the officer, before he performs, or refuses to perform, the act, and afterwards by the court, before the writ can issue. As they must be determined before the act can be commanded, they are clearly distinct from and preliminary to the act.

Now the rule above stated does not apply to such preliminary questions. If it did, no writ of mandamus could ever issue, and the machinery provided by the Code for trying such questions would be useless. The distinction above stated applies, not only where the act to be performed is purely ministerial,--such as the signature of a warrant, the payment of a claim, or the like,--but also where it is judicial in its nature. Thus the settlement of a statement or bill of exceptions by a judge is a judicial act; but before it is done, the judge must pass upon the preliminary questions whether the party has a right to have a statement or bill, and if he has, whether the one presented is in proper form and regularly presented,--questions often calling for the exercise of nice discrimination, and certainly as much 'judicial' as any other questions. But it is well settled that if the judge erroneously refuse to settle the statement or bill, a writ of mandamus will be awarded to compel the settlement, not in any particular way, but one way or the other." Hayne, N. T. § 323.

In State v. Laughlin, 75 Mo. 358, where the inferior court had determined that it had no jurisdiction, and that another tribunal had exclusive jurisdiction, and for that reason had declined to proceed to a final disposition of a criminal case, and had ordered it transferred to the other tribunal for that purpose, upon an application for a mandamus to compel the inferior court to proceed, the supreme court held that it would inquire into the question of jurisdiction, and if it existed, would issue the writ. The writ was issued. And see State v. Twenty-sixth District Judge, 34 La. Ann. 1177; Floral Springs Water Co. v. Rives, 14 Nev. 433; Beguhl v. Swan, 39 Cal. 411; In re Milner v. Rhoden, 6 Eng. Law & Eq. 373.

The questions passed on by respondent were merely preliminary to the settlement of the statement, and the general rule invoked by his attorneys does not apply to them. Unless there are other grounds for a denial of the writ, it will be our duty to re-examine the questions passed on by respondent.

2. Had relator another plain, speedy, and adequate remedy in the ordinary course of law? It is said that he had, because the order denying the application for a settlement of the statement is appealable. We shall not stop to decide this question. Until the decision in Calderwood v. Peyser, 42 Cal. 111, wherein it was held that an order striking out a statement was appealable, the supreme court of California uniformly held that such an order was not appealable. In Clark v. Crane, 57 Cal. 634, where the judge below denied an application to settle a statement, the supreme court seems to have held that such an order is appealable. But the court added:

"It may be said that where the remedy by appeal is not a speedy and adequate remedy, the writ of mandate should issue. This was so held in Merced M. Co. v. Fremont, 7 Cal. 130. Then, admitting, for the argument, that the remedy by mandamus is the proper one, by reason of the fact that the remedy by appeal is not plain, speedy, and adequate, does it follow that the writ must go in such a case as this?" The court then examined the facts, and upon them decided that, in any event, the order of the court below must be affirmed. Therefore the writ was denied.

It is evident that the supreme court of California does not regard the right of appeal from an order refusing to settle a statement as necessarily fatal to an application for a writ of mandate; because, in People v. Crane, 60 Cal. 279, decided two years after Clark v. Crane, the same court issued a peremptory writ commanding the settlement of a bill of exceptions, saying that there was no substantial difference between a statement and bill of exceptions, save as to the time of settlement. Mandamus has been and we judge, is regarded as the proper remedy in California to compel the settlement of statements on motion for new trial. People v. Lee, 14 Cal. 510; People v. Rosborough, 29 Cal. 416; People v. Ke...