Waite v. Burgess

• Decision Date: 03 July 1952
• Docket Number: No. 3707,3707
• Parties: WAITE v. BURGESS.
• Court: Nevada Supreme Court

Page 994

245 P.2d 994

69 Nev. 230

WAITE v. BURGESS.

No. 3707.

Supreme Court of Nevada.

July 3, 1952.

Geo. E. Franklin, Jr., Las Vegas, for appellant.

Hawkins, Cannon & Coulthard, Las Vegas, for respondent.

MERRILL, Justice.

This is a motion to dismiss this appeal for lack of undertaking. The record discloses that after the taking of the appeal by the serving and filing of notice and undertaking, (with two individuals serving as sureties), respondent on March 4, 1952 duly served and filed notice of motion for justification of sureties. The following day counsel for appellant appeared before the trial judge and requested that a time be fixed for such justification. The trial judge directed that the matter be brought up on the law and motion calendar. On March 7, 1952 the matter was brought up on law and motion calendar and was set by the trial judge for March 14, 1952, 'said date being the first available date on the calendar of said Department 2 of the Eighth Judicial District Court.' On March 14, 1952 the sureties appeared and gave testimony and were held justified by the trial judge. Respondent contends that justification was not accomplished within the five-day period specified by law and that the result is as though no undertaking at all had been given.

Sec. 9385.74, N.C.L.1929, Supp. 1931-1941, provides in part as follows: 'The adverse party may, however, except to the sufficiency of the sureties within five days after filing of the undertaking, and, unless they or other sureties justify before the judge of the court below, or clerk, within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal shall be regarded as if no such undertaking had been given; * * *.'

Sec. 9032, N.C.L.1929, provides: 'In all cases not otherwise provided for in this act, where sureties are required to justify, they shall appear before the officer or person authorized to take the justification, and may be examined under oath by such officer or person and the adverse party, touching their qualifications as sureties, which examination shall be reduced to writing and subscribed by the sureties if required. If, upon such examination, it shall appear to such officer or person that said sureties, or either of them, have the necessary qualifications of such, he shall so indorse upon the statement, and cause the same to be filed, and thereupon the justification shall be complete.'

The statutes contemplate that justification shall be accomplished by a combination of individual and judicial action: action of the sureties in presenting themselves to the judge or officer for examination; action of the judge or officer in determining that such examination showed them to suffice as sureties. From a reading of the statutes it may be argued that justification must be completed and the certificate thereof endorsed, all prior to the expiration of the five-day period.

We cannot, however, regard this as the proper construction. As the facts in this case themselves suggest, from such a construction it would follow that compliance with the statutory provisions might well require a judge to set aside the presentation and consideration of pending matters deemed by him more urgent in nature; to refuse through lack of time to investigate evidence deemed pertinent; to fail to give to the determination of justification itself the extent of consideration he might feel it warranted. In the light of our constitutional division of the powers of government, § 51, N.C.L.1929, Const. art. 3, § 1, it is our view that such an invasion of the sphere of the judicial department could not have been contemplated by the legislature.

It is recognized that legislation undertaking to require judicial action within fixed periods of time is an unconstitutional legislative interference with judicial functions. State ex rel. Kostas v. Johnson, 224 Ind. 540, 69 N.E.2d 592, 168 A.L.R. 1118; Atchison, Topeka & Santa Fe Ry. Co. v. Long, 122 Okl. 86, 251 P. 486; Schario v. State, 105 Ohio St. 535, 138 N.E. 63, 64. In Schario v. State, supra, it was stated: 'Whether or not justice is administered without 'denial or delay' is a matter for which the judges are answerable to the people,...