Wilmurth v. First Judicial Dist. Court, 4752

• Decision Date: 22 June 1964
• Docket Number: No. 4752,4752
• Citation: 393 P.2d 302,80 Nev. 337
• Parties: Bennie WILMURTH and Mary Ann Wilmurth, Petitioners, v. The FIRST JUDICIAL DISTRICT COURT of the State of Nevada, The Honorable Richard L. Waters, Jr., District Judge, Respondent.
• Court: Nevada Supreme Court

Page 302

393 P.2d 302

80 Nev. 337

Bennie WILMURTH and Mary Ann Wilmurth, Petitioners, v. The FIRST JUDICIAL DISTRICT COURT of the State of Nevada,

The Honorable Richard L. Waters, Jr., District

Judge, Respondent.

No. 4752.

Supreme Court of Nevada.

June 22, 1964.

Bradley & Drendel, Reno, for petitioners.

Harvey Dickerson, Atty. Gen., and Gabe Hoffenberg, Chief Deputy Atty. Gen., Carson City, for respondent.

BADT, Chief Justice.

The petition for a writ of mandate now before the court raises ¹ the following question: Will the remedy of mandamus lie to compel the respondent court to vacate a pre-trial order made by it, on the ground that petitioners had not participated in the pre-trial conference--such failure to participate being the willful absence of petitioners from the pre-trial conference after due notice thereof. (Counsel for petitioners herein, as counsel for plaintiffs in the main action then pending in the respondent court, had willfully absented themselves from the pre-trial conference for the sole reason that they considered the respondent court to have been divested of jurisdiction by reason of a pending appeal to this court from the lower court's order dismissing the action as to the State of Nevada, named as a defendant therein.)

The action below was commenced by the Wilmurths against the state and Jules Magnette, director of the Nevada State Hospital, for the wrongful death of the Wilmurths' child. On June 10, 1963, pursuant to motion, the court dismissed the action as to the State of Nevada under the doctrine of soverign immunity, and the action continued with Magnette as the primary party defendant. ²

On November 7, 1963, the plaintiffs filed a notice of appeal from the order of the court dismissing the state as a party defendant and notified the trial court thereof.

On December 9, 1963, the date set for pre-trial conference, counsel for plaintiffs failed to appear, nor did they notify the trial court or counsel for defendants that they would make no appearance. Pursuant to direction of the trial court, counsel for defendants prepared a pre-trial order and submitted it to the trial court. On December 18, 1963, the trial court signed the pre-trial order. The order provided that counsel could file objections or propose modifications within five days. ³

On December 13, 1963, subsequent to the pre-trial conference but prior to entry of the pre-trial order, this court dismissed the plaintiffs' appeal from the order dismissing the State of Nevada as a party defendant, on the ground that the order dismissing the State of Nevada was not a final judgment and therefore was not appealable. Wilmurth v. State, 79 Nev. 490, 387 P.2d 251 (1963).

On December 27, 1963, plaintiffs moved to vacate the pre-trial order on the ground that the trial court had no jurisdiction over any of the matters in the case during the period the appeal in Wilmurth v. State, supra, was pending.

On February 21, 1964, the trial court denied plaintiffs' motion to set aside the pre-trial order.

On March 16, 1964, the plaintiffs filed objections to the pre-trial order. The trial court rejected the objections on April 20, 1964.

Plaintiffs then filed their petition for a writ of mandamus to command the trial court to vacate, alter or amend its pre-trial order in conformity with plaintiffs' motions and objections. This court issued its order to show cause why the writ should not issue. The respondent then moved to dismiss plaintiffs' petition for writ of mandamus.

(1) It has long been the law in this state that mandamus will not lie to review discretionary acts of the trial court. Pinana v. District Court, 75 Nev. 74, 334 P.2d 843; State ex rel. Weber v. McFadden, 46 Nev. 1, 205 P. 594; State v. Ninth Judicial District Court, 40 Nev. 163, 161 P. 510; State ex rel. Office Specialty Mfg. Co. v. Curler, 26 Nev. 347, 67 P. 1075; Hoole v. Kinkead, 16 Nev. 217; State ex rel. Hetzel v. Board of Commissioners of Eureka County, 8 Nev. 309; State ex rel. Combination Silver Min. Co. v. Curler, 4 Nev. 445.

In State v. McFadden, supra, this court distinguished such cases as State v. Murphy, 19 Nev. 89, 6 P. 840, and Floyd v. District Court, 36 Nev. 349, 135 P. 922, 4 A.L.R. 646, and Roberts v. Second Judicial District Court, 43 Nev. 332, 185 P. 1067. ⁴

(2) But petitioners contend that their pending appeal from the order dismissing the State of Nevada divested the trial court of jurisdiction. This may ordinarily be so (cf. Miller v. United States, 7 Cir., 114 F.2d 267), but is not so in the case of an attempted appeal from a non-appealable order. Resnik v. La Paz Guest Ranch, 9th Cir. 1961, 289 F.2d 814; Smith v. Insurance Company of North America, M.D.Tenn.1963, 213 F.Supp. 675.

(3) Petitioners contend that the pre-trial conference and the pre-trial order emanating therefrom were void, because the pre-trial conference 'was held in the absence of counsel for petitioners.' For this they rely on Rule 16. It is conceded by petitioners that their absence from the pre-trial conference was willful and was based upon the contention above disposed of that their appeal from the order dismissing the State of Nevada as a party had divested the court of jurisdiction to take any further steps in the action. This contention, as we have seen, is without merit. Petitioners contend that Rule 16 contemplates a pre-trial conference only in the case of the presence of the attorneys for all the parties. But where a pre-trial conference has been called and counsel have due notice thereof and counsel for one of the parties willfully and deliberately abstains from attending, it does not lie in his mouth to say that the conference was held ex parte or that Rule 16 may be read as permitting counsel for any party to prevent the holding of a pre-trial conference and to prevent a pre-trial order, merely be absenting himself.

(4) Petitioners claim that they have no other remedy. However, it is to be noted that by the terms of the pre-trial order counsel for all parties were given five days to file objections or to propose modifications thereof, and that in the absence of written objection or request for modification, 'this order shall govern the course of the trial unless modified ⁵ by the court to prevent manifest injustice.' This followed the wording of Rule 16. So there still remained to petitioners their right to apply to the court at the trial for an order modifying the pre-trial order. In addition to this, it has not been suggested that the pre-trial conference order or any proceedings to correct or modify the order might not be reviewed...