Bancroft v. Pike ex rel. Washoe County , 33 Nev. 53 ( 1910 )

By the Court,

NORCROSS, C. J.:

This is an original proceeding in certiorari to review an order of the Second Judicial District Court in and for Washoe County, W. H. A. Pike, district judge, made on the 27th day of April, 1910, remanding to the justice court of Reno Township a certain case appealed to said district court from said justice court, entitled W. H. Bancroft, Plaintiff, v. G. S. Phenix and C. S. Stanley, Copartners, doing business under the firm name and style of Phenix & Stanley, Defendants, and further directing that all the files in the case be returned to said justice’s court.

The return upon the writ, after setting out a copy of the order above mentioned, recited that all the records and files in the case were on the 28th day of April, 1910, in pursuance of said order, returned to Lee J. Davis, Esq., justice of the peace of Reno Township, in whose possession they have since remained.

As the allegation in the petition in reference to these files is not questioned by respondent, we may consider that a full return upon the writ would not disclose a different state of facts than that alleged in the petition.

From the petition we quote the following statement of the case:

"That on the 6th day of January, 1910, affiant brought suit in the justice’s court of Reno Township, in and for Washoe County, State of Nevada, against G. S. Phenix and W. C. Stanley, copartners, doing business under the firm name and style of Phenix & Stanley, defendants, for the sum of forty-four dollars ($44) due affiant for services rendered to defendants as a miner. * * * That affiant prayed for judgment againt defendants for the sum of forty-four dollars ($44), together with the sum not less than fifty dollars ($50) as reasonable attorney’s fee, and costs of suit. The said complaint was duly verified by affiant. That thereupon a summons was issued by the justice of said court, and served upon one of the defendants, namely, G. S. Phenix, in Reno Township, Washoe County, Nevada; that thereafter, on the 11th day of January, 1910, said defendant, G. S. Phenix, appeared in said court and filed an answer in the words following, to wit (after entitlement): 'Now comes G. S. Phenix, one of the above-named defendants, and objects that no copy of the complaint wa's served upon him at the time of the service of the summons herein, or at any other time; and asks that the service of said summons be set aside and disallowed as irregular and void. And the said defendant, G. S. Phenix, without waiving his objection to want of service of copy of complaint or his right to have such service set aside, for answer to the complaint of the plaintiff filed herein, denies each and every allegation, item, and particular in said complaint contended. J. B. Dixon, attorney for defendant G. S. Phenix. ’

"That thereafter the justice of the peace overruled the objection of the defendant and trial was then had before a jury on the complaint of affiant and answer of said defendant G. S. Phenix, and a verdict for the sum of forty-four dollars ($44) was rendered in favor of affiant against said defendant, and a cost bill was thereafter filed, and the said justice’s court entered judgment in favor of affiant on said verdict, and against said defendant, for the sum of forty-four dollars ($44), costs of suit and attorney’s fees; that thereafter, on' or about the 26th day of January, 1910, said defendant G. S. Phenix appealed said case to the district court of the Second Judicial District of the State of Nevada, Washoe County, by filing a notice of appeal, and also an undertaking on appeal; that thereafter said case was assigned for hearing before W. H. A. Pike, one of the duly elected, qualified, and acting judges of the said Second Judicial District Court, Washoe County; that thereafter said case was set down for trial before said W. H. A. Pike for Monday morning, the 25th day of April, 1910, at 10 o’clock a. m., and at said time and place affiant and defendants appeared in said court ready for trial, with their witnesses in attendance; that the defendant then objected to the court hearing said case on the ground that the court had no jurisdiction of the person of the defendant, or the cause of action stated in the complaint, for the reason that a copy of the complaint had not been served on the defendants at the time the summons was served on said G. S. Phenix, defendant; that the court thereupon continued the matter under advisement, and held it under advisement until Wednesday, the 27th day of April, 1910, at the hour of 10 o’clock a. m., when the court held it had no jurisdiction to hear said case, and remanded said case to the justice’s court for further proceedings in that court against the objections of affiant to said remanding order. ”

If the district court had entered an order dismissing the appeal, we would have no difficulty in determining this proceeding. The case would then be within the rule laid down in Andrews v. Cook, 28 Nev. 265, 81 Pac. 303, and authorities therein cited. Such an order of dismissal, whether erroneously made or not, would be within the jurisdiction of the court and not subject to review by this court. It would be a final determination of the appeal.

It is not contended by either party in this proceeding that the order to remand had the force and effect of a dismissal, and for the purposes of this case we will not consider it as having such effect. If, as a matter of fact, the justice’s court obtained jurisdiction over the defendant, its judgment regularly entered and an appeal taken, an erroneous dismissal of the appeal would have left the justice’s court with jurisdiction to proceed by execution to enforce the judgment. Also, if, as a matter of fact, the justice’s court had jurisdiction to enter the judgment which it did, the district court had no power, by remanding the case after appeal taken, to compel it to again assume a jurisdiction it had already exercised.

The constitution gives to district courts final appellate jurisdiction over cases arising in justices, courts. The district court may dismiss an appeal, or it may proceed and try it de novo. But it cannot refuse to do one thing or the other. It may be that the district court would have power to remand in cases where a justice of the peace had erroneously certified a case to the district court upon the mistaken theory that a question involving title to real estate, or the legality of a tax, impost, assessment, toll, or municipal fine was involved. (Comp. Laws, 3684; Const, art. 4, sec. 8.)

See, also, N. P. Terminal Co. v. Lowenberg (C. C.), 18 Fed. 339.

There may be other cases, also, where an order to remand would be appropriate. However, the present clearly is not such a case. If the justice’s court had not acquired jurisdiction, an appeal would not invest the district court with jurisdiction, and an order to dismiss would be the proper order in the premises. The justice’s court would then be in the same situation it was before the appeal was taken, for the effect of dismissing an appeal is to nullify the appeal for all purposes. If the district court dismissed the appeal when the justice’s court had jurisdiction upon the erroneous theory that it had not acquired jurisdiction, and hence, the district court had none, the judgment of the justice’s court would nevertheless still remain valid.

In our judgment, the justice’s court had acquired jurisdiction over the defendant Phenix, and the appeal was properly before the lower court. (Golden v. Murphy, 31 Nev. 395, and authorities therein cited; Security Co. v. Boston Co., 126 Cal. 418, 58 Pac. 941, 59Pac. 296.)

In a case like that presented to the district court and involved in this proceeding, we think the district court was without power to remand, but was limited either to a dismissal of the appeal or to a trial of the case anew.

The orders under review are annulled.