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and therefore, tn view of section 9 of article 8 of the Constitution of this state, no appeal from the action of the district court to this court was permissible in this case. The petitioner therefore availed himself of what he conceived to be his only remedy, namely, a writ of certiorari to review the action of the district court in dismissing said appeal.

The writ of certiorari may be granted by this court, as provided in section 3630, Rev. St. 1898, "when an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer and there is no appeal, nor, in the judgment of the court or judge, any plain, speedy and adequate remedy." By section 3636, Rev. St. 1898, it is provided: "The review upon this writ [certiorari] cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer." In view of the facts as stated above, and the parts of the several sections quoted, the petitioner filed his petition for a writ, reciting therein substantially the foregoing facts, and thereby invokes the aid of this court, which, by the then Chief Justice, issued a writ of certiorari, commanding the respondent to file a certified transcript of the record and proceedings had before him as judge of the district court of said Salt Lake county, that the same may be reviewed by this court. The respondent complied with the commands of said writ in all respects.

The particular point upon which it is claimed that this court should consider this case upon certiorari is that the respondent, as judge of said district court, exceeded his jurisdiction because the appeal had not yet reached said court; in other words, it is contended that the act of said judge in dismissing said appeal was premature. This claim is based upon the ground that it is made a ground by statute for dismissing an appeal from a justice's court to the district court in case the papers are not filed in the district court and the advance fee paid within 30 days after the transcript is received by the clerk. As we have shown above, the transcript in this case was filed with the clerk of the district court on the 14th day of July, and the appeal was dismissed on the 21st. The appeal was, however, dismissed upon the ground that an undertaking, as required by law, had not been filed in the justice's court, and that, in view of the law, none such could in any event be filed. If, however, the district court exceeded its jurisdiction or power in dismissing the appeal, then this court, upon proceedings on certiorari, could review and correct the action of said court. If the court merely erred, however gross such error may appear to us, this court cannot, in such a proceeding, review the error. We think it is manifest from What has been said above that the district

court did not exceed its jurisdiction or power in acting upon the motion of Earl in dismissing the appeal.

It may be conceded that the court did not have jurisdiction of the case, so as to try it upon its merits and enter a judgment therein, for the reason that, in legal effect, no appeal had been perfected. But the district court had jurisdiction over the subject-matter of appeals from justices' courts, and hence had power to dispose of the same at any stage after the transcript of the justice's court was filed in the district court. If this be not so, then an imperfect appeal would suspend all action both in justices' courts and in district courts. Neither is it essential that the party objecting to the appeal should wait the full 30 days after the transcript is filed before attacking the same. If he desires to attack it upon the ground alone that the papers are not filed and the advance fee paid within 30 days, then he must, of course, wait the time specified in the statute, because the cause or ground for a dismissal cannot exist until the time has elapsed. This, however, is a case where an appeal has not been taken as the law requires; hence there is, in legal effect, no appeal, although one has been attempted in fact. In such a case a party may act whenever the transcript is filed in the district court, when such action is based upon a ground which strikes at the appeal for want of some act which would make the appeal effective if taken, and where the time to take such act has passed, and cannot, under the law, be made effective thereafter. The court in this case, however, did not act prematurely, and however erroneous and prejudicial it is or may be as regards the petitioner, the court, having jurisdiction over the subject-matter of appeals, then had the power or authority to act, and hence we cannot, in a proceeding on certiorari, under our statutes, review the action of the court. This would end this case, and, when this view was suggested at the hearing, the parties to this action requested this court to disregard mere form, and determine the questions involved in this proceeding as if the same were instituted for a writ of mandate requiring the district court to vacate its order of dismissal and reinstate the appeal, and proceed to a hearing of the cause, if it were found that the appeal had been wrongfully dismissed. In deference to the foregoing request, and in view that all the facts are before us the same as if the pleadings had been framed for a writ of mandate, we have concluded to treat this case as above suggested; and we have further concluded that, although the district court may dismiss an appeal in its general power over appeals from justices' courts, and that it may do this for a sufficient or insufficient reason, still the party is not without remedy if that court wrongfully or without some legal cause dismisses an appeal. In such a case we think the remedy is by the

writ of mandate, under sections 3640 and 3641, Rev. St. 1898, to require the district court to vacate the order of dismissal, reinstate the appeal, and proceed to hear the cause on its merits.

As we have already attempted to show, the mere fact that the court misconceives the law and acts contrary thereto in a matter where it has jurisdiction of the subject-matter does not carry such act beyond the jurisdiction of the court. If this were so, every judicial act contrary to law in some form would carry the tribunal making it beyond its jurisdiction.

We have likewise pointed out that in such cases this court cannot review such acts in a proceeding upon a writ of certiorari. If this were done, the provision in the Constitution making the action of the district courts final on appeals from justices' courts would, in effect, be abrogated. We would thus do by indirection what the law forbids us from doing directly. What we would thus not be permitted to review on appeal we would, in effect, review on a writ of certiorari.

But we conceive the writ of mandate, as the same is defined by the sections of the statute above referred to, to be designed for the purpose of compelling action where the law enjoins it and the person or tribunal refuses to act in accordance therewith. The dismissal of an appeal, while it may be within the jurisdiction and power of a court, may yet be unlawfully done. If the court has jurrisdiction to dismiss an appeal from a justice's court for imperfections, it may likewise dismiss one that is perfect in both form and substance, and it may do so arbitrarily and contrary to law. Does it exceed its jurisdiction by doing this? Clearly not. But since its action in dismissing an appeal is final and cannot be reviewed on appeal to this court, and likewise not on a writ of certiorari, is there, therefore, no remedy? We think in such a case a dismissal of an appeal is, in substance and effect, a refusal to proceed further in the matter, and, if clearly contrary to law, the court so refusing may be required to proceed in accordance with law. The distinction that we seek to enforce here must be kept in mind between jurisdiction of the subject-matter and jurisdiction to try the particular case on its merits. If the court should proceed to the trial of an appeal case where no appeal had been taken as required by law, the court would exceed its jurisdiction or power in doing so, and its act in doing so, being in excess of jurisdiction, would be reviewable on a writ of certiorari, upon the ground that the court presumes to act where the law withholds the right to do so. But if the court refuses to proceed when It has jurisdiction and lawful authority to do so, the remedy is not by certiorari, but by a writ of mandate. The views here entertained, as we view it, are, in effect, expressed by this court in the case of O. S. L. R. Co. v. District Court, 85 Pac. 300, and we reaffirm

the views stated in that case, so far as applicable here. But even in a case of mandate the legal right to require the person or court to proceed and the legal duty to do so must be free from doubt; otherwise even this remedy must be denied.

In view of the foregoing, we will now proceed to examine into the petitioner's rights under the law giving appeals from justices' courts. Such appeals are purely statutory, and the statutes granting them must in all respects be at least substantially complied with. The appeal in this case was dismissed upon the ground that the sureties did not justify respecting their qualifications, as required by law. Section 3747, Rev. St. 1898, so far as material here, provides: "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." Section 3748 provides that the party filing the undertaking must serve notice of the filing thereof on the adverse party, and such adverse party may then within two days thereafter object to the sufficiency of the sureties named in the undertaking, "and unless they, or other sureties, justify before the justice from whose court the appeal is taken within two days thereafter, upon notice to the adverse party the appeal shall be regarded as if no undertaking had been given.” From the foregoing provisions it is as clear as language is capable of expressing it that without an undertaking there is no appeal, and a failure to have the sureties justify within two days after excepting to their sufficiency nullifies the undertaking given, and leaves the whole matter as though no undertaking had ever been made or filed. In this case, however, petitioner seeks to avoid the consequences of the foregoing provisions upon the ground that the appeal in this case is from a judgment entered in pursuance, of chapter 64, Rev. St. 1898, entitled "Forcible Entry and Detainer." It is contended that appeals under said chapter 64 are governed by the provisions of section 3586, Rev. St. 1898. It is there provided, in substance, that an appeal may be taken from a judgment under that chapter within 10 days, but that such an appeal shall not stay execution unless the appellant shall within 10 days file with the justice his undertaking, with two or more sureties, in an amount fixed by the justice, but not less than twice the amount of the judgment appealed from, including costs, and that such undertaking shall be conditioned that in case the judgment is affirmed or the appeal dismissed the appellant will pay the judgment and costs and the value of the use of the property pending the appeal. Section 3587, however, provides: "The provisions of this Code relative to civil actions, appeals, and new trials, * * apply to

the proceedings mentioned in this chapter." It will be observed that section 3586 is silent upon the point respecting the justification

of sureties, or the effect in case of a failure to do so, but section 3587 makes all other provisions relative to appeals, when not inconsistent with section 3586, applicable, and thus makes the provisions found in sections 3747 and 3748 operative, and unless complied with the appeal is not effective for any purpose. Indeed, as provided in section 3748, if the sureties fail to justify within the two days after exceptions filed and notice given, the appeal shall be regarded as if no appeal had been taken.

The petitioner lays great stress on the concluding portion of section 3586, where it is said: "Upon taking the appeal and filing the undertaking, all further proceedings in the case shall be stayed." This must, however, be read and construed in connection with the other provisions relative to the perfecting of an appeal. The appeal and undertaking referred to in the foregoing quotation refers to a perfect appeal, and to an undertaking perfected as required by the provisions relative to appeals, and not only to those found in section 3586. If this is not done, then we must ignore all that is said in section 3587. It is the duty of courts to give effect to all the provisions of statutes relative to one subject-matter, although found in different sections. This is so as a rule of construction, but in this case the legislative power has enforced the rule by an express statute. The district court has no more right to disregard one part of the law governing appeals from justices' courts than it has another. It is bound to obey all the provisions, and so are

we.

The petitioner, however, contends that the statute providing for the dismissal of appeals from justices' courts does not make the failure to give an undertaking a ground for dismissal; that in this case the respondent claims that the failure of the sureties to justify is, in effect, the same as if no undertaking had been given. This may be conceded, and it may also be admitted that the statute does not specifically make the failure to give the undertaking a ground for dismissal. The statute, however, does provide that no appeal shall be effectual for any purpose unless an undertaking is filed. This seems to require an undertaking in form at least. The next section makes the failure to justify tantamount to an entire failure to give an undertaking. Can it be contended, upon any reasonable ground, that an appeal may be dismissed where there is an insufficient undertaking and cannot be where there is none at all? In the latter case the court proceeds, if necessary, independent of statute, and upon the broad ground that the court may always and at any stage of a proceeding refuse to go further when it appears that it has not jurisdiction of the proceeding, although it has jurisdiction of the subject-matter generally. To dismiss a case is not the exercise of jurisdiction of the matters involved on the

merits, but it often is, and always may be, a refusal to do so. It is precisely upon this ground that we have proceeded to determine the matters involved in this application. The court in this case had full power to dismiss the appeal, because the petitioner invoked its judicial powers in a matter in which it had no power to proceed on the merits, for the reason that the law did not confer the right to do so unless and until the petitioner had conferred that power by a compliance with the law. If the petitioner had so com plied, and the court had then dismissed his appeal, and refused to proceed to hear and determine the case on its merits, this court, in a proper proceeding, would compel it to do so in accordance with law.

The petitioner concedes that, if this case were an ordinary case of appeal from a money judgment, then the contention of respondent might be right. We can see no distinction between appeals in this class of cases and any other. There are numerous authorities that hold that under statutes like ours where sureties fail to justify when required to do so renders the appeal ineffectual. Our statute says so in express terms. Pratt v. Jarvis, 8 Utah, 5, 28 Pac. 869; Bennett v. Superior Court, 113 Cal. 440, 45 Pac. 808; McCracken v. Superior Court, 86 Cal. 74, 24 Pac. 845; Wood v. Superior Court, 67 Cal. 115, 7 Pac. 200; Roush v. Van Hagen, 17 Cal. 122; Donovan v. Woodcock (S. D.) 99 N. W. 82; Barber v. Johnson (S. D.) 57 N. W. 225. In the case in 67 Cal. 115, above cited, is, in part at least, explained what we mean when we say the court acquired no jurisdiction of the case to try it on its merits, but had jurisdiction over the subject-matter of appeals generally, and therefore over the matters involved in the appeal as such. Further, the case in 113 Cal. 440 is an authority upon the proposition that if the court had entertained the appeal in this case, then the writ of certiorari would have been the proper remedy to review its acts, because such acts would have been in excess of jurisdiction in proceeding to hear the case on its merits.

From the foregoing views of the law applicable to this case, it is manifest that the petitioner is not in a situation to require the court to reinstate his appeal and to proceed with the case, and hence a writ of mandate must be, and the same is, denied, with costs against petitioner.

MCCARTY, C. J., and STRAUP, J., concur.

(29 Nev. 228) HIRSHISER et al. v. WARD et al. (No. 1,699.)

(Supreme Court of Nevada. Oct. 24, 1906.) 1. ABSTRACTS OF TITLE-ACTION AGAINST ABSTRACTERS - PLEADING RELIANCE ON ABSTRACT.

The complaint against abstracters employed by plaintiff to examine and furnish an abstract

of title of a lot, for purchase of which plain-
tiffs had contracted with II., alleging that in re-
liance on the pretended abstract of title fur-
nished, showing title in H. without incumbrance,
and depending solely thereon, plaintiffs were in-
duced to and did purchase the land of H. and
pay him therefor, is sufficient as against a gen-
eral demurrer, without an allegation that the
purchase depended on the abstract defendants
were employed to furnish, or that it in any way
depended on what the abstract might disclose.
[Ed. Note. For cases in point, see vol. 1,
Cent. Dig. Abstracts of Title, § 5.]

2. SAME-NATURE OF CONTRACT.

A complaint against abstracters for furnishing a defective abstract, alleging a hiring to furnish a full and complete abstract, is suflicient without an allegation that the abstract was to be made from any particular date.

3. PLEADING ASSERTION OF FACT.

The allegation in a complaint against abstracters for furnishing a defective abstract, that when plaintiff purchased the land of II., N. was the owner in fee thereof, is an assertion, not an assumption, that N. was the owner in fee.

[Ed. Note.--For cases in point, see vol. 39, Cent. Dig. Pleading, § 23.]

4. SAME.

The allegation in a complaint against abstracters for furnishing a defective abstract. that plaintiffs were ousted and dispossessed of the land by due course of law, by N., is not objectionable on general demurrer, as stating a conclusion of law, instead of facts.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 12, 23.]

5. ABSTRACTS OF TITLE-ACTION AGAINST ABSTRACTERS--PLEADING EXHAUSTING REMEDY AGAINST GRANTOR.

The complaint against abstracters for negligently furnishing a defective abstract, by reason of which plaintiffs lost the property bought by them, need not show an exhaustion of remedy against their grantor, or his insolvency; the contrary state of facts being a matter of aflirmative defense.

6. SAME-DEMAND ON GRANTOR FOR RETURN OF PRICE.

The allegation in the complaint against abstracters for furnishing a defective abstract, in reliance on which they bought the property of II. for $1,100, and lost the property because he had no title, that H. has refused and still refuses to pay plaintiffs the $1,100, or any part of it, impliedly shows a demand on II. for the return of the money.

7. PLEADING-ALLEGATION OF FACT.

The complaint against abstracters for furnishing a defective abstract, alleging that in 1eliance thereon plaintiffs bought the land of II. and paid him $1,100 therefor, taking a deed. without warranty or covenant; that II. did not have title, and they were ousted by the owner; that H. has failed and refused, and still does fail and refuse, to pay to plaintiffs the $1,100, or any part thereof, sufficiently alleges as an ultimate fact, as against a general demurrer, that plaintiffs have suffered loss of $1,100. 8. ABSTRACTS OF TITLE-ACTION AGAINST ABSTRACTERS PLEADING SHOWING IN ABSTRACT.

The complaint against abstracters for furnishing a defective title, alleging that they furnished one showing that II. was the owner of the land "without any incumbrances," is a sufficient allegation that the abstract showed that there were no incumbrances.

ty.

ment for defendants. Plaintiffs appeal. Reversed and remanded.

Cooke & Ayers, for appellants. Curler & King, for respondents.

FITZGERALD, C. J. On the 1st day of May, 1904, the appellants here, as plaintiffs in the court below, filed therein their second amended complaint; the matters alleged therein and pertinent to this appeal are stated as follows: "That on or about the 24th day of June, 1902, the plaintiffs employed said defendants, as such copartners, as aforesaid, for fees and reward to them by plaintiffs paid, to examine and furnish to plaintiffs a true, accurate, full, and correct abstract of the title to that certain lot, piece, or parcel of land situate, lying, and being in the then town [now city] of Reno, in the county of Washoe, and state of Nevada, bounded and particularly described as follows, to wit: That parcel of land situate in Conner's addition to said Reno, bounded on the west by Ralston strect, on the south by Oak street, on the east by Nevada street, and on the the north by the section line between sections 2 and 11, in township 19 north, range 19 east, M. D. D. B. & M., for the purchase of which, in fee simple, and without incumbrances, the plaintiffs had theretofore contracted with one W. H. Hancock, who claimed to be the owner thereof. (4) That defendants, in the performance of the duties of such employment, did thereafter, and on or about the 25th day of June, 1902, furnish to plaintiffs a pretended abstract of title to the said land, and did report and represent to plaintiffs that the same was a full, true, accurate, and correct abstract of title to said land; by which pretended abstract of title, it appeared and was shown that the said W. H. Hancock was the owner of said land and premises in fee simple without any incumbrances; in reliance on said pretended abstract of title, and depending solely thereon, plaintiffs were induced to and did, on or about the 28th day of June, 1902, purchase said land and premises from said Hancock, and did pay him therefor the sum of $1,100, in lawful money of the United States, and, as evidence thereof, plaintiffs did then and there take and receive from said Hancock a certain deed or instrument in writing, executed by said IIancock, and duly acknowledged, purporting to convey from said Hancock to plaintiffs the said land and premises in fee; that said deed or instrument in writing contains the words 'grant, bargain, and sell,' but does not contain any other warranty or covenant whatsoever, and that plaintiffs have not, nor has either of them, ever, at any time, received any other war

Appeal from District Court, Washoe Coun- ranty or covenant from said Hancock, or at

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all, relating to or concerning said lands or premises or the title thereto. (5) That said Hancock was not the owner of said lands

or premises, or of any interest therein whatever except a mere equitable interest as mortgagee under and by virtue of a certain indenture of mortgage, and that the Bank of Nevada, a corporation,. was the owner in fee thereof, and that the same appeared of record on the public records of said Washoe county, of which plaintiffs were ignorant, and which defendants could, by the exercise of proper diligence and skill have discovered, and which they failed to discover by omitting to exercise due care and skill; and defendants were guilty of neglect and want of due care in examining into, and in the investigation of, the title of said land. (6) That the said mortgage by and through which said Hancock held said equitable interest, as aforesaid, was given to secure, and did secure, the payment of a certain promissory note, dated and executed November 1, 1897, and, by its terms, payable on demand. That the first plaintiffs, or either of them, discovered or learned that said Hancock was not the owner in fee of said lands and premises, but was the holder only of said equitable interest, as aforesaid, was on or about the day of February, 1904, and more than six years after the date and execution of said promissory note, and after any action to foreclose the said mortgage or collect the said note was barred by section 3718 of the Compiled Laws of Nevada of 1900, and when the said equitable interest which said Hancock held in and to said lands and premises, as aforesaid, had, without the fault of these plaintiffs, or either of them, become of no value whatever. (7) That said Hancock has failed and refused, and still does fail and refuse, to pay to plaintiffs, and said plaintiffs have not received from said Hancock, or at all, the said sum of $1,100, or any part thereof. (8) That by reason of the said Hancock's want of title, and the fact that plaintiffs took no title by said deed from Hancock, and the fact that said Bank of Nevada was the owner of said lands and premises, as aforesaid, the plaintiffs were ousted and dispossessed of said land and premises by due course of law. Wherefore plaintiffs pray judgment against said defendants jointly and severally, in the sum of. $1,100, together with interest thereon at the legal rate from the 28th day of June, 1902, and for costs and disbursements of suit." To this complaint defendants filed a general demurrer, the court sustained the demurrer, and, on plaintiffs declining to amend, gave judgment for the defendants. From said judgment, this appeal is taken.

To sustain the judgment respondent's counsel make, if we correctly gather them from their brief, many points of objection to the complaint.

1. That the plaintiffs "do not allege that said purchase depended upon the abstract that was to be afterwards furnished to them by said defendants, or that said purchase

in any way depended upon what said abstract might disclose." Without going into an elaborate analysis of the allegation on this point, we deem it sufficient to meet the assault of a general demurrer; and whether it was sufficient to repel a special demurrer on the ground stated is not before us for determination.

2. Counsel's second point is that: "Said complaint does not allege that said abstract was to be made from the time of the issuing of the patent by the United States, nor from any particular date, time, or conveyance." We think this allegation is sufficient. It required defendants to furnish a "full and complete" abstract. We can see no reason why respondents should arbitrarily take any particular date, and say that, prior to that date, they were not required to make search and report of the title.

3. As a third point, counsel say: "In section 5 of page 3 of said amended complaint, the plaintiffs allege that, at the time of the purchase of said described land the Bank of Nevada was the owner in fee thereof, and that the same appeared of record on the public records of Washoe county; but they allege nothing to show that said mortgage was not due and paid prior to the furnishing of the abstract by defendants, and plaintiffs simply assume that said title was in the Bank of Nevada." On the contrary, the allegation is an "assertion" not an "assumption" that the "Bank of Nevada was the owner in fee," etc.

4. Under the fourth point counsel say "plaintiffs allege that they were ousted and dispossessed of said land and premises by due course of law, by the Bank of Nevada, but they fail to show when or how they were ousted and dispossessed of said land and premises by said Bank of Nevada. They don't show when they went into possession or that they ever had possession of said land and premises. They don't show by what due course of law the Bank of Nevada ousted and dispossessed the plaintiffs of said land and premises. land and premises. They simply state a conclusion of law, and all the authorities hold that you must state facts, and from those facts the conclusions are drawn." This allegation, too, we think, good under the general demurrer.

5. Fifth, counsel claim that the complaint does not "show that the plaintiffs, on discovering the defect in the abstract, took proper measures to avert the loss; and, if they fail to do so, cannot hold the abstracters liable." This claim is, we think, untenable. Plaintiffs were not required to show this. If the facts were otherwise, it was a matter of affirmative defense to be set up by defend

ants.

6. The sixth point states that there was "nothing to show that there ever was a demand made of said Hancock for the return of said $1,100, or any part of the same, and, without a demand on said Hancock for

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