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(36 Nev, 349, 135 Pac. 922.) Appeal

from justice of the peace twice the amount of the judgment and deposit - sufficiency.

costs if a stay is desired, but provid3. Deposit of the amount of judg. ing that “a deposit of the amount of ment and costs in the justice's court judgment appealed from, including all is sufficient to support an appeal from costs, shall be equivalent to the filing the judgment under a statute requir- of the undertaking." ing an undertaking for costs, or of [See 16 R. C. L. 404, 405.]

PETITION for a writ of mandate to compel respondents to proceed with the hearing of an appeal from a justice of the peace, which was alleged to have been erroneously dismissed by them. Writ issued.

The facts are stated in the opinion of the court.
Mr. R. Gilray, for petitioners:

McCarran, J., delivered the opin“Controversies should be tried on ion of the court: their merits,” especially those coming In this case judgment was renbefore justices' courts.

dered against the petitioners in the Cronise v. Carghill, 4 Cal. 121;

justice's court of Union township, O'Callaghan v. Booth, 6 Cal. 63; Liening v. Gould, 13 Cal. 598; Stuart v.

Humboldt county, Nevada, for the Landers, 16 Cal. 372, 76 Am. Dec. 538;

sum of $300, and for the further Watson v. Whitney, 23 Cal. 375; sum of $105.75, assessed as costs. Lataillade v. Santa Barbara Gas Co. Within the time prescribed by stat58 Cal. 4; 24 Cyc. 501, 502, 555, 557; ute the petitioners filed and served Martin v. District Ct. 13 Nev. 88; Pratt notice of appeal to the district court v. Stone, 25 Nev. 371, 60 Pac. 514; Har

of the sixth judicial district, in and rington v. Holler (Crawford v. Holler)

for Humboldt county, and on the 111 U. S. 796, 28 L. ed. 602, 4 Sup. Ct.

same day, and after the filing and Rep. 697. Mr. W. H. Dial also for petitioners. titioners deposited with the justice

service of said notice of appeal, peMessrs. Salter & Robins, for respondents:

of the peace the sum of $405.75 in Assuming that the action of the re- gold coin. This fact is evidenced by spondent judge was error, still it was the minutes of the justice's court within the exercise of jurisdiction, and as follows: "That heretofore, on mandamus will not lie to review its the 11th day of September, 1911, action.

defendants appeared herein by their State ex rel. Treadway v. Wright, 4 attorney R. Gilray, Esq., and filed Nev. 119; Andrews v. Cook, 28 Nev. 269, 81 Pac. 303; Re Breckenridge, 34

herein notice of appeal in writing, Nev.275, 118 Pac. 687, Ann. Cas.

and deposited with the justice of 1914B, 871.

said court the sum of $405.75, the If the money deposited with a jus

amount of the judgment appealed tice equals the amount of the judg- from, including costs. J. T. Dunn, ment, and is given for the purpose of Justice of the Peace.” Following staying the execution, it is not suffi- this is the further entry of the juscient for security on appeal.

tice of the peace, as follows: "Sept. Pacific Window Glass Co. v. Smith, 11th, Oastler v. Floyd. Notice of 8 Cal. App. 762, 97 Pac. 898; Thomas v. Hawkins, 12 Cal. App. 327, 107 Pac.

appeal filed by deft. and $405.75 578; McConky_v. Suprior Ct. 56 Cal. paid into court in lieu of appeal 84; Wilson v. Doyle, 12 Idaho, 295, 85

bond. $2 appeal fees paid." SubsePac. 928; Jones v. Superior Ct. 151

quent to this the justice of the peace Cal. 589, 91 Pac. 505; Bergevin v. deposited with the clerk of the disWood, 11 Cal. App. 643, 105 Pac. 935. trict court a certified copy of his

In any event, a bond or a deposit, in docket and the papers filed in the a sum of not less than $100, must be

case, and also the sum of $405.75, furnished to secure the costs on ap- deposited with him as hereinabove peal. Laws v. Troutt, 147 Cal. 172, 81 Pac.

set forth. The plaintiffs in the jus401; Swem v. Monroe, 148 Cal. 741, 83

tice's court moved the district court Pac. 1074; State ex rel. Jones v.

to dismiss the appeal on the ground Brown, 30 Nev. 495, 98 Pac. 873. that more than thirty days had

elapsed since the judgment was that respect is final and will not be made and rendered in the justice disturbed. As early as 4 Nevada court, and that no undertaking had this court laid down the rule that been filed in said justice's court in where, in matters of this kind, the the sum of $100 for the payment of district court made an order discosts on appeal. The motion to dis posing of a cause, no matter how miss was granted, and an order dis- erroneous it may have been, it could missing the appeal was entered. not be reviewed in this court. This Petitioners ask that a writ of man- principle has been followed in all date issue out of this court, direct- of the cases in which the matter has ing the district court to take cog- been presented, and in a recent denizance and jurisdiction of the said cision (Andrews v. Cook, 28 Nev. case and try and determine the same 269, 81 Pac. 303) this court apon its merits.

provingly quoted the language of To the petition filed herein a de- Lewis, J., in the Treadway Case, murrer is interposed on the ground supra, and also the language of that the petition does not state facts Hawley, J., in the case of Floral sufficient to authorize a writ of man- Springs Water Co. v. Rives, 14 Nev. date, for the reason that it appears 431. In the case of Re Breckenfrom the petition that respondent ridge, supra, this court again gave Judge French proceeded with the sanction to the rule in a statement case, and decided that a certain sum to the effect that the action of the of money deposited with the justice district court in dismissing a matter of the peace was made in lieu of the appealed from the justice's court, undertaking to stay proceedings, even though erroneous, was final and that there was no undertaking and not subject to review. The rule or deposit on appeal. Respondents laid down by this court in the severin their demurrer rely on former al cases heretofore referred to was decisions of this court, and say:

concurred in by courts of last resort "Assuming that the action of the re- of other jurisdictions, and the suspondent judge was error, still it preme court of California, in the was within the exercise of jurisdic- case of Buckley v. Superior Ct. 96 tion, and mandamus will not lie to Cal. 119, 31 Pac. 8, expressly overreview its action.” In support of

In support of ruled their former decisions relative their contention, they cite: State ex to this matter, and by a divided rel. Treadway v. Wright, 4 Nev. court laid down the new rule to the 119; Andrews v. Cook, 28 Nev. 269, effect that where the superior court 81 Pac. 303; Re Breckenridge, 34

had dismissed an appeal from a jusNev, 275, 118 Pac. 687, Ann. Cas. tice's court, though erroneous, it 1914B, 871.

was nevertheless final, and a writ of The primary question to be de- review would not lie. This doctrine, termined in this proceeding is, Will however, as annunciated in the mandamus lie to review the action Buckley Case, supra, was overruled of the district court, and to compel in the case of Golden Gate Tile Co. the district court to proceed in a V. Superior Ct. 159 Cal. 474, 114 case in which that court has de

Pac. 978, and in the case of Edvested itself of jurisdiction by wards v. Superior Ct. 159 Cal. 710. erroneously dismissing an appeal? 115 Pac. 649, and the rule set forth There is no controversy in this case in the former decisions again anrespecting the facts, as set forth in nunciated. the petition, and respondents in this In the case at bar the dismissal matter rely entirely upon the doc- of the appeal was a refusal on the trine, as previously announced by part of the court to give appellant a this court, that where the district hearing in the case. In a case where court erroneously devests itself of the district court takes jurisdiction jurisdiction to try a cause appealed and acts, its acts will not be subject from a justice's court, its action in to review by a writ of mandate, but

erroneous dis

(36 Nev. 349, 135 Pac. 922.) where such tribunal refuses to take the purpose of requiring the court jurisdiction at all, when by law it to proceed. Brown v. Pontiac Min. ought to do so, or where, having ob- Co. 105 Mich. 653, 63 N. W. 1000; tained jurisdiction, it refuses to pro- Castello v. St. Louis Circuit Ct.

ceed in its exercise, 28 Mo. 259. Mandamus-to compel erercise mandamus is the of jurisdiction, proper remedy. Er- Law of Special Remedies, dwelling

Mr. Bailey in his treatise on the missal of cause. rors committed in

upon the subject of mandamus and the exercise of ju- referring to the rule as stated above, dicial discretion cannot be made the subject of review, nor can they be

says: “I observe that it has been corrected by a writ of mandamus,

contended by some judges and law but where a district court erro

writers that this rule (if it be a neously decides that it has no juris- rule) extends to embrace erroneous diction, the writ of mandamus is the

construction of some question of law proper remedy to compel that tri

or of practice which is preliminary bunal to do that which the law pre

to the whole case. If it were conscribes it should do,—assume juris- fined to questions relating to the diction and proceed with the cause.

power or jurisdiction of the court, Re Parker, 131 U. S. 221, 33 L. ed. then there is abundant authority for 123, 9 Sup. Ct. Rep. 708. The dis- the position assumed. If, on the missal of a case is a refusal on the other hand, it is intended to assert part of the dismissing court to hear that the rule embraces all cases and determine the cause, and the where the court refuses to proceed party aggrieved in such a proceed- to the merits, then I should very ing may properly invoke a writ of much doubt the application of any mandamus to compel the court to set such rule. Courts often err in dethe case and proceed to its deter- termining questions of law or pracmination. Harrington v. Holler, 111 tice upon demurrer or motion, U. S. 796, 28 L. ed. 602, 4 Sup. Ct. whereby the merits of an action are Rep. 697. The right of a party not reached, and the party has an litigant to a judgment of a court adequate remedy by appeal or writ upon the merits of the matter liti- of error.

of error. If mandamus would lie, gated is the fundamental aim of the it certainly would transform that law. The object of courts primarily writ into a writ of error.” 2 Bailey, is that they should assume the func- Habeas Corpus, p. 883. tion of legal and equitable arbiters,

It has been well stated, in suband decide controversies upon their stance, that although a writ of manmerits.

damus is not a means by which the While it may be said that in cases

manner of conducting proceedings, of this character the lower court

the rulings of a court upon queshad jurisdiction to grant or deny a

tions of evidence, or jurisdictional motion to dismiss, nevertheless that

matters involving the merits can be court could not refuse to hear a

reviewed, its scope, however, emmatter upon its merits when it was

braces the right of the reviewing regularly before it for that purpose,

court to compel an inferior tribunal nor could it devest itself of jurisdic

to proceed in a case where, by an tion by an erroneous order any more

erroneous ruling, it has devested itthan it could assume jurisdiction by

self of jurisdiction. Golden Gate arbitrarily saying that it had the

Tile Co. v. Superior Ct. 159 Cal. 474, right to proceed. The rule has been

114 Pac. 978. approvingly stated to the effect that,

The jurisdiction of the district where an inferior court refuses to courts of the state of Nevada is entertain jurisdiction on a matter prescribed by § 6, article 6, of the

preliminary to Constitution of the state, which is -compelling hearing on the mer- in part as follows: "They shall also court to proceed.

its, the writ of have final appellate jurisdiction in mandamus may be resorted to for cases arising in justices' courts and

a

such other inferior tribunals as may eral decisions by this court, is, o be established by law.” This con- say the least, a harsh one, and tu stitutional grant of jurisdiction is our mind fails to carry out the also a prescription that the district spirit of the law. Summed down court must assume final appellate to a nicety, it means that the action jurisdiction in cases arising in a of the district court in dismissing justice's court, and hence it is the an appeal from the justice's court, duty which the district court cannot regardless of how glaring the error either refuse or devest itself of, and may be, is without the scope of rewhen the record in a case discloses view and beyond the power of rethat the cause should be heard on lief by a higher tribunal. its merits, the dismissal of the ap- It is in the justice's court that peal is a refusal on the part of the the small controversies of the busicourt to entertain the cause, and ness world are litigated. It has such refusal is properly the subject been termed with more or less profor the issuance of a writ of man- priety, “the poor man's court," and damus. Levy v. Superior Ct. 66 our legislature, in enacting its earCal. 292, 5 Pac. 353; State ex rel. lier laws, recognized this as being Kellogg v. District Ct. 13 Mont. 370, generally true, and made the forms 34 Pac. 298; 2 Bailey, Habeas Cor- of pleadings and rules of practice pus, p. 893.

much more simple than in other As was said by Judge Beatty, courts. speaking for the supreme court of To say that a justice's court litiCalifornia in the case of Edwards gant, desirous of presenting his v. Superior Ct. 159 Cal. 710, 115 cause to the district court and being Pac. 650, when, according to the un- denied that privilege by a ruling of controverted facts, it appears that that court, which ruling is manian appeal to the district court has festly and palpably erroneous, canbeen duly perfected and diligently not be relieved of the effects of that prosecuted, a dismissal of such ap- error by the mandate of this court, peal is in fact nothing more nor less is to our mind so harsh as to be than an attempted abdication of the without the pale of the true intendjurisdiction which the court is ment of the law. It is our judgbound in every proper case to exer

ment that the better rule is that as cise. In other words, it is a refusal stated by the supreme court of Calito decide a cause which is a plain fornia in the case of Golden Gate statutory duty of the court to de- Tile Co. v. Superior Ct. supra, and cide, the remedy for which derelic- approved in the case of Edwards v. tion is the writ of mandate.

Superior Ct. 159 Cal. 710, 115 Pac. The supreme court of Utah, in 649; the same rule being followed touching upon the subject, annun- in the cases of State ex rel. Kelciated the doctrine in substance logg v. District Ct. 13 Mont. 370, that, where an appeal was properly 34 Pac. 298, and Hansen v. Andertaken and the requirements of the son, supra. statute complied with, and the court It follows from the foregoing reafailed to exercise the jurisdiction soning that the rule heretofore anconferred upon it by virtue of the nounced by this court, having its appeal and refused to proceed with inception in the case of State ex the trial, the plaintiff's remedy was rel. Treadway v. Wright, and adby mandamus. Hansen v. Ander- hered to in all cases down to and son, 21 Utah, 286, 61 Pac. 219.

including Re Breckenridge, 34 Nev. The rule applicable to the issu- 275, 118 Pac. 687, Ann. Cas. 1914B, ance of a writ of mandamus, in mat- 871, should be, and they are hereby, ters of this character, as first expressly overruled. asserted in the case of State ex rel. Having determined that this Treadway V. Wright, 4 Nev. 119, court is invested with jurisdiction and subsequently adhered to in sev- to compel, by writ of mandamus,

a

(36 Nev. 349, 135 Pac. 922.) the district court to proceed in a alent to the filing of an undertak. case where it has refused to take ing, mentioned in the first part of jurisdiction, or where, by an errone- the section. ous ruling, it has devested itself of The learned judge of the lower jurisdiction, we now come to the court in dismissing the appeal took remaining question for our consid- the position that the deposit could eration in this case, viz., Did the dis- only serve the purpose to take the trict court erroneously devest itself place of an undertaking to stay proof jurisdiction by sustaining the ceedings, and that the deposit could motion to dismiss the appeal? not be taken in lieu of an undertak

Section 3679 of the Statutes of ing for costs on appeal. It is our Nevada, applicable at the time at judgment that the section referred which this appeal was taken (Cut to will not admit ting's Compilation), is as follows: of the construction justice of the

Appeal-from “An appeal from a justice's court placed upon it_by peace deposit shall not be effectual for any pur- respondent.

-sufficiency.

The pose unless an undertaking be filed, language of the statute is plain and within five days after filing the no- obvious; moreover, in our judgtice of appeal, with two or more ment, it is free from ambiguity. sureties, in the sum of $100, in gold By this statute one undertaking, coin of the United States, for the and only one, is contemplated to payment of the costs on the appeal, make an appeal effectual to the exor, if a stay of proceedings bé tent of giving the district court claimed, in a sum equal to twice the jurisdiction, and a deposit, as proamount of the judgment, including vided for in the latter part of the costs, when the judgment is for the section, may be made in lieu of such payment of money, or twice the undertaking; i. e., it is optional with value of the property, including the appellant, in taking his appeal, costs, when the judgment is for the to either file an undertaking, as prorecovery of specific personal prop- vided for by the first part of $ 3679, erty, and shall be to the effect, when or make a deposit, as provided for the action is for the recovery of by the latter part of the same secmoney, that the appellant will pay tion. When a litigant, with the view the amount of the judgment ap- of perfecting an appeal from the pealed from, and all costs, if the justice's court, deposits with the appeal be withdrawn or dismissed, justice of the peace a sum of money or the amount of any judgment, equal to the amount of the judgment and all costs that may be recovered appealed from, including all costs, against him in said action in the

this act on his part is equivalent to district court.

A deposit the filing of the undertaking, menof the amount of judgment appealed

tioned in the first part of the secfrom, including all costs, or of the tion, to make the appeal effectual. value of the property, and all costs,

The docket entry and minutes of in actions for the recovery of spe

the justice of the peace recite that cific personal property, with the

the deposit was made “in lieu of justice, shall be equivalent to the file appeal bond.” In the case of State ing of the undertaking in this sec

ex rel. Jones v. Brown, 30 Nev. 500, tion mentioned." It will be observed

98 Pac. 873, this court, in passing that in this case counsel for peti- upon the sufficiency of an undertaktioners sought to avail themselves ing, said: “Whether or not it was of the latter part of $ 3679, set forth the intention of the defendant, by above, and under the provisions of this undertaking, to procure a stay that section they deposited, as ap- of proceedings, is immaterial so far pears from the record, a

as the proceeding in this court is amounting to the judgment ap- concerned. If it is good as an unpealed from, including all costs. dertaking to pay the costs on the This, the statute provides, is equiv- appeal, it is sufficient to clothe the

sum

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