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

Appeal - from justice of the peace deposit sufficiency.

3. Deposit of the amount of judgment and costs in the justice's court is sufficient to support an appeal from the judgment under a statute requiring an undertaking for costs, or of

twice the amount of the judgment and costs if a stay is desired, but providing that "a deposit of the amount of judgment appealed from, including all costs, shall be equivalent to the filing of the undertaking."

[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: "Controversies should be tried on their merits," especially those coming before justices' courts.

Cronise v. Carghill, 4 Cal. 121; O'Callaghan v. Booth, 6 Cal. 63; Liening v. Gould, 13 Cal. 598; Stuart v. Landers, 16 Cal. 372, 76 Am. Dec. 538; Watson v. Whitney, 23 Cal. 375; Lataillade v. Santa Barbara Gas Co. 58 Cal. 4; 24 Cyc. 501, 502, 555, 557; Martin v. District Ct. 13 Nev. 88; Pratt v. Stone, 25 Nev. 371, 60 Pac. 514; Harrington v. Holler (Crawford v. Holler) 111 U. S. 796, 28 L. ed. 602, 4 Sup. Ct. Rep. 697.

Mr. W. H. Dial also for petitioners. Messrs. Salter & Robins, for respondents:

Assuming that the action of the respondent judge was error, still it was within the exercise of jurisdiction, and mandamus will not lie to review its action.

State ex rel. Treadway v. Wright, 4 Nev. 119; Andrews v. Cook, 28 Nev. 269, 81 Pac. 303; Re Breckenridge, 34 Nev. 275, 118 Pac. 687, Ann. Cas. 1914B, 871.

If the money deposited with a justice equals the amount of the judgment, and is given for the purpose of staying the execution, it is not sufficient for security on appeal.

Pacific Window Glass Co. v. Smith, 8 Cal. App. 762, 97 Pac. 898; Thomas v. Hawkins, 12 Cal. App. 327, 107 Pac. 578; McConky v. Suprior Ct. 56 Cal. 84; Wilson v. Doyle, 12 Idaho, 295, 85 Pac. 928; Jones v. Superior Ct. 151 Cal. 589, 91 Pac. 505; Bergevin v. Wood, 11 Cal. App. 643, 105 Pac. 935.

In any event, a bond or a deposit, in a sum of not less than $100, must be furnished to secure the costs on appeal.

Laws v. Troutt, 147 Cal. 172, 81 Pac. 401; Swem v. Monroe, 148 Cal. 741, 83 Pac. 1074; State ex rel. Jones v. Brown, 30 Nev. 495, 98 Pac. 873.

McCarran, J., delivered the opinion of the court:

In this case judgment was rendered against the petitioners in the justice's court of Union township, Humboldt county, Nevada, for the sum of $300, and for the further sum of $105.75, assessed as costs. Within the time prescribed by statute the petitioners filed and served. notice of appeal to the district court of the sixth judicial district, in and for Humboldt county, and on the same day, and after the filing and service of said notice of appeal, petitioners deposited with the justice of the peace the sum of $405.75 in gold coin. This fact is evidenced by the minutes of the justice's court as follows: "That heretofore, on the 11th day of September, 1911, defendants appeared herein by their attorney R. Gilray, Esq., and filed herein notice of appeal in writing, and deposited with the justice of said court the sum of $405.75, the amount of the judgment appealed from, including costs. J. T. Dunn, Justice of the Peace." Following this is the further entry of the justice of the peace, as follows: "Sept. 11th, Oastler v. Floyd. Notice of appeal filed by deft. and $405.75 paid into court in lieu of appeal bond. $2 appeal fees paid." Subsequent to this the justice of the peace deposited with the clerk of the district court a certified copy of his docket and the papers filed in the case, and also the sum of $405.75, deposited with him as hereinabove set forth. The plaintiffs in the justice's court moved the district court to dismiss the appeal on the ground that more than thirty days had

elapsed since the judgment was made and rendered in the justice court, and that no undertaking had been filed in said justice's court in the sum of $100 for the payment of costs on appeal. The motion to dismiss was granted, and an order dismissing the appeal was entered. Petitioners ask that a writ of mandate issue out of this court, directing the district court to take cognizance and jurisdiction of the said case and try and determine the same on its merits.

To the petition filed herein a demurrer is interposed on the ground that the petition does not state facts sufficient to authorize a writ of mandate, for the reason that it appears from the petition that respondent Judge French proceeded with the case, and decided that a certain sum of money deposited with the justice. of the peace was made in lieu of the undertaking to stay proceedings, and that there was no undertaking or deposit on appeal. Respondents in their demurrer rely on former decisions of this court, and say: "Assuming that the action of the respondent judge was error, still it was within the exercise of jurisdiction, and mandamus will not lie to review its action." In support of their contention, they cite: State ex rel. Treadway v. Wright, 4 Nev. 119; Andrews v. Cook, 28 Nev. 269, 81 Pac. 303; Re Breckenridge, 34 Nev. 275, 118 Pac. 687, Ann. Cas. 1914B, 871.

The primary question to be determined in this proceeding is, Will mandamus lie to review the action of the district court, and to compel the district court to proceed in a case in which that court has devested itself of jurisdiction by erroneously dismissing an appeal? There is no controversy in this case respecting the facts, as set forth in the petition, and respondents in this matter rely entirely upon the doctrine, as previously announced by this court, that where the district court erroneously devests itself of jurisdiction to try a cause appealed from a justice's court, its action in

that respect is final and will not be disturbed. As early as 4 Nevada this court laid down the rule that where, in matters of this kind, the district court made an order disposing of a cause, no matter how erroneous it may have been, it could not be reviewed in this court. This principle has been followed in all of the cases in which the matter has been presented, and in a recent decision (Andrews v. Cook, 28 Nev. 269, 81 Pac. 303) this court approvingly quoted the language of Lewis, J., in the Treadway Case, supra, and also the language of Hawley, J., in the case of Floral Springs Water Co. v. Rives, 14 Nev. 431. In the case of Re Breckenridge, supra, this court again gave sanction to the rule in a statement to the effect that the action of the district court in dismissing a matter appealed from the justice's court, even though erroneous, was final and not subject to review. The rule laid down by this court in the several cases heretofore referred to was concurred in by courts of last resort of other jurisdictions, and the supreme court of California, in the case of Buckley v. Superior Ct. 96 Cal. 119, 31 Pac. 8, expressly overruled their former decisions relative to this matter, and by a divided court laid down the new rule to the effect that where the superior court had dismissed an appeal from a justice's court, though erroneous, it was nevertheless final, and a writ of review would not lie. This doctrine, however, as annunciated in the Buckley Case, supra, was overruled in the case of Golden Gate Tile Co. v. Superior Ct. 159 Cal. 474, 114 Pac. 978, and in the case of Edwards v. Superior Ct. 159 Cal. 710. 115 Pac. 649, and the rule set forth in the former decisions again annunciated.

In the case at bar the dismissal of the appeal was a refusal on the part of the court to give appellant a hearing in the case. In a case where the district court takes jurisdiction and acts, its acts will not be subject to review by a writ of mandate, but

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

where such tribunal refuses to take jurisdiction at all, when by law it ought to do so, or where, having obtained jurisdiction, it refuses to proceed in its exercise, mandamus is the

Mandamus-to compel exercise

of jurisdiction- proper remedy. Errors committed in

erroneous dismissal of cause.

the exercise of ju

dicial discretion cannot be made the subject of review, nor can they be corrected by a writ of mandamus, but where a district court erro

neously decides that it has no jurisdiction, the writ of mandamus is the proper remedy to compel that tribunal to do that which the law prescribes it should do,-assume jurisdiction and proceed with the cause. Re Parker, 131 U. S. 221, 33 L. ed. 123, 9 Sup. Ct. Rep. 708. The dismissal of a case is a refusal on the part of the dismissing court to hear and determine the cause, and the party aggrieved in such a proceed ing may properly invoke a writ of mandamus to compel the court to set the case and proceed to its determination. Harrington v. Holler, 111 U. S. 796, 28 L. ed. 602, 4 Sup. Ct. Rep. 697. The right of a party litigant to a judgment of a court upon the merits of the matter litigated is the fundamental aim of the law. The object of courts primarily is that they should assume the function of legal and equitable arbiters, and decide controversies upon their merits.

While it may be said that in cases of this character the lower court had jurisdiction to grant or deny a motion to dismiss, nevertheless that court could not refuse to hear a matter upon its merits when it was regularly before it for that purpose, nor could it devest itself of jurisdiction by an erroneous order any more than it could assume jurisdiction by arbitrarily saying that it had the right to proceed. The rule has been approvingly stated to the effect that, where an inferior court refuses to entertain jurisdiction on a matter preliminary to a hearing on the merits, the writ of mandamus may be resorted to for

-compelling court to proceed.

the purpose of requiring the court to proceed. Brown v. Pontiac Min. Co. 105 Mich. 653, 63 N. W. 1000; Castello v. St. Louis Circuit Ct. 28 Mo. 259.

Mr. Bailey in his treatise on the Law of Special Remedies, dwelling upon the subject of mandamus and referring to the rule as stated above, says: "I observe that it has been contended by some judges and law writers that this rule (if it be a construction of some question of law rule) extends to embrace erroneous or of practice which is preliminary to the whole case. If it were confined to questions relating to the power or jurisdiction of the court, then there is abundant authority for the position assumed. If, on the other hand, it is intended to assert that the rule embraces all cases where the court refuses to proceed to the merits, then I should very much doubt the application of any such rule. Courts often err in determining questions of law or practice upon demurrer or motion, whereby the merits of an action are not reached, and the party has an adequate remedy by appeal or writ of error. If mandamus would lie, it certainly would transform that writ into a writ of error." 2 Bailey, Habeas Corpus, p. 883.

It has been well stated, in substance, that although a writ of mandamus is not a means by which the manner of conducting proceedings, the rulings of a court upon questions of evidence, or jurisdictional matters involving the merits can be reviewed, its scope, however, embraces the right of the reviewing court to compel an inferior tribunal to proceed in a case where, by an erroneous ruling, it has devested itself of jurisdiction. Golden Gate Tile Co. v. Superior Ct. 159 Cal. 474, 114 Pac. 978.

The jurisdiction of the district courts of the state of Nevada is prescribed by § 6, article 6, of the Constitution of the state, which is in part as follows: "They shall also have final appellate jurisdiction in cases arising in justices' courts and

such other inferior tribunals as may be established by law." This constitutional grant of jurisdiction is also a prescription that the district court must assume final appellate jurisdiction in cases arising in a justice's court, and hence it is the duty which the district court cannot either refuse or devest itself of, and when the record in a case discloses that the cause should be heard on its merits, the dismissal of the appeal is a refusal on the part of the court to entertain the cause, and such refusal is properly the subject for the issuance of a writ of mandamus. Levy v. Superior Ct. 66 Cal. 292, 5 Pac. 353; State ex rel. Kellogg v. District Ct. 13 Mont. 370, 34 Pac. 298; 2 Bailey, Habeas Corpus, p. 893.

As was said by Judge Beatty, speaking for the supreme court of California in the case of Edwards v. Superior Ct. 159 Cal. 710, 115 Pac. 650, when, according to the uncontroverted facts, it appears that an appeal to the district court has been duly perfected and diligently prosecuted, a dismissal of such appeal is in fact nothing more nor less than an attempted abdication of the jurisdiction which the court is bound in every proper case to exercise. In other words, it is a refusal to decide a cause which is a plain statutory duty of the court to decide, the remedy for which dereliction is the writ of mandate.

The supreme court of Utah, in touching upon the subject, annunciated the doctrine in substance that, where an appeal was properly taken and the requirements of the statute complied with, and the court. failed to exercise the jurisdiction conferred upon it by virtue of the appeal and refused to proceed with the trial, the plaintiff's remedy was by mandamus. Hansen v. Anderson, 21 Utah, 286, 61 Pac. 219.

The rule applicable to the issuance of a writ of mandamus, in matters of this character, as first asserted in the case of State ex rel. Treadway v. Wright, 4 Nev. 119, and subsequently adhered to in sev

eral decisions by this court, is, t say the least, a harsh one, and to our mind fails to carry out the spirit of the law. Summed down to a nicety, it means that the action of the district court in dismissing an appeal from the justice's court, regardless of how glaring the error may be, is without the scope of review and beyond the power of relief by a higher tribunal.

It is in the justice's court that the small controversies of the business world are litigated. It has been termed with more or less propriety, "the poor man's court," and our legislature, in enacting its earlier laws, recognized this as being generally true, and made the forms of pleadings and rules of practice much more simple than in other courts.

To say that a justice's court liti gant, desirous of presenting his cause to the district court and being denied that privilege by a ruling of that court, which ruling is manifestly and palpably erroneous, cannot be relieved of the effects of that error by the mandate of this court, is to our mind so harsh as to be without the pale of the true intendment of the law. It is our judgment that the better rule is that as stated by the supreme court of California in the case of Golden Gate Tile Co. v. Superior Ct. supra, and approved in the case of Edwards v. Superior Ct. 159 Cal. 710, 115 Pac. 649; the same rule being followed in the cases of State ex rel. Kellogg v. District Ct. 13 Mont. 370, 34 Pac. 298, and Hansen v. Anderson, supra.

It follows from the foregoing reasoning that the rule heretofore announced by this court, having its inception in the case of State ex rel. Treadway v. Wright, and adhered to in all cases down to and including Re Breckenridge, 34 Nev. 275, 118 Pac. 687, Ann. Cas. 1914B, 871, should be, and they are hereby, expressly overruled.

Having determined that this court is invested with jurisdiction to compel, by writ of mandamus,

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

the district court to proceed in a case where it has refused to take jurisdiction, or where, by an erroneous ruling, it has devested itself of jurisdiction, we now come to the remaining question for our consideration in this case, viz., Did the district court erroneously devest itself of jurisdiction by sustaining the motion to dismiss the appeal?

Section 3679 of the Statutes of Nevada, applicable at the time at which this appeal was taken (Cutting's Compilation), is as follows: "An appeal from a justice's court shall not be effectual for any purpose unless an undertaking be filed, within five days after filing the notice of appeal, with two or more sureties, in the sum of $100, in gold coin of the United States, for the payment of the costs on the appeal, or, if a stay of proceedings be claimed, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money, or twice the value of the property, including costs, when the judgment is for the recovery of specific personal property, and shall be to the effect, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment, and all costs that may be recovered against him in said action in the district court. A deposit of the amount of judgment appealed from, including all costs, or of the value of the property, and all costs, in actions for the recovery of specific personal property, with the justice, shall be equivalent to the filing of the undertaking in this section mentioned." It will be observed that in this case counsel for petitioners sought to avail themselves of the latter part of § 3679, set forth above, and under the provisions of that section they deposited, as appears from the record, a sum amounting to the judgment appealed from, including all costs. This, the statute provides, is equiv

alent to the filing of an undertaking, mentioned in the first part of the section.

Appeal-from

-sufficiency.

The learned judge of the lower court in dismissing the appeal took the position that the deposit could only serve the purpose to take the place of an undertaking to stay proceedings, and that the deposit could not be taken in lieu of an undertaking for costs on appeal. It is our judgment that the section referred to will not admit of the construction justice of the placed upon it by peace-deposit respondent. The language of the statute is plain and obvious; moreover, in our judgment, it is free from ambiguity. By this statute one undertaking, and only one, is contemplated to make an appeal effectual to the extent of giving the district court jurisdiction, and a deposit, as provided for in the latter part of the section, may be made in lieu of such undertaking; i. e., it is optional with the appellant, in taking his appeal, to either file an undertaking, as provided for by the first part of § 3679, or make a deposit, as provided for by the latter part of the same section. When a litigant, with the view of perfecting an appeal from the justice's court, deposits with the justice of the peace a sum of money equal to the amount of the judgment appealed from, including all costs, this act on his part is equivalent to the filing of the undertaking, mentioned in the first part of the section, to make the appeal effectual.

The docket entry and minutes of the justice of the peace recite that the deposit was made "in lieu of appeal bond." In the case of State ex rel. Jones v. Brown, 30 Nev. 500, 98 Pac. 873, this court, in passing upon the sufficiency of an undertaking, said: "Whether or not it was the intention of the defendant, by this undertaking, to procure a stay of proceedings, is immaterial so far as the proceeding in this court is concerned. If it is good as an undertaking to pay the costs on the appeal, it is sufficient to clothe the

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