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and therefore, to view of section 9 of article court did not exceed its jurisdiction or power 8 of the Constitution of this state, no ap- in acting upon the motion of Earl in dismisspeal from the action of the district court to ing the appeal. this court was permissible in this case. The It may be conceded that the court did not petitioner therefore availed himself of what have jurisdiction of the case, so as to try it he couceived to be his only remedy, namely, upon its merits and enter a judgment there a writ of certiorari to review the action of in, for the reason that, in legal effect, no apthe district court in dismissing said appeal. peal had been perfected. But the district

The writ of certiorari may be granted by court had jurisdiction over the subject-matter this court, as provided in section 3630, Rev. of appeals from justices' courts, and hence St. 1898, "when an inferior tribunal, board, had power to dispose of the same at any or officer exercising judicial functions has stage after the transcript of the justice's exceeded the jurisdiction of such tribunal, court was filed in the district court. If this board, or officer and there is no appeal, nor, be not so, then an imperfect appeal would in the judgment of the court or judge, any suspend all action both in justices' courts plain, speedy and adequate remedy.” By and in district courts. Neither is it essential section 3636, Rev. St. 1898, it is provided: that the party objecting to the appeal should “The review upon this writ (certiorari] can- wait the full 30 days after the transcript not be extended further than to determine

is filed before attacking the same. If he dewhether the inferior tribunal, board, or of- sires to attack it upon the ground alone that ficer has regularly pursued the authority of the papers are not filed and the advance fee such tribunal, board, or officer.” In view of paid within 30 days, then he must, of course, the facts as stated above, and the parts of wait the time specified in the statute, because the several sections quoted, the petitioner filed the cause or ground for a dismissal cannot his petition for a writ, reciting therein sub- exist until the time has elapsed. This, howstantially the foregoing facts, and thereby ever, is a case where an appeal has not been invokes the aid of this court, which, by the taken as the law requires; hence there is, in then Chief Justice, issued a writ of certio- legal effect, no appeal, although one has been rari, commanding the respondent to file a attempted in fact. In such a case a party certified transcript of the record and pro- may act whenever the transcript is filed ceedings had before him as judge of the dis- in the district court, when such action is trict court of said Salt Lake county, that based upon a ground which strikes at the the same may be reviewed by this court. appeal for want of some act which would The respondent complied with the commands make the appeal effective if taken, and where of said writ in all respects.

the time to take such act has passed, and The particular point upon which it is cannot, under the law, be made effective thereclaimed that this court should consider this after. The court in this case, however, did case upon certiorari is that the respondent, not act prematurely, and however erroneous as judge of said district court, exceeded his and prejudicial it is or may be as regards the jurisdiction because the appeal had not yet petitioner, the court, having jurisdiction over reached said court; in other words, it is

the subject-matter of appeals, then had the contended that the act of said judge in dis- power or authority to act, and hence we canmissing said appeal was premature. This not, in a proceeding on certiorari, under our claim is based upon the ground that it is statutes, review the action of the court. This made a ground by statute for dismissing an

would end this case, and, when this view appeal from a justice's court to the district

was suggested at the hearing, the parties to court in case the papers are not filed in the this action requested this court to disregard district court and the advance fee paid with- mere form, and determine the questions inin 30 days after the transcript is received volved in this proceeding as if the same were by the clerk. As we have shown above, the instituted for a writ of mandate requiring the transcript in this case was filed with the district court to vacate its order of dismissal clerk of the district court on the 14th day and reinstate the appeal, and proceed to a of July, and the appeal was dismissed on the hearing of the cause, if it were found that the 21st. The appeal was, however, dismissed

appeal had been wrongfully dismissed. In upon the ground that an undertaking, as re- deference to the foregoing request, and in quired by law, had not been filed in the jus- view that all the facts are before us the same tice's court, and that, in view of the law, as if the pleadings had been framed for a writ none such could in any event be filed. If, of mandate, we have concluded to treat this however, the district court exceeded its ju- case as above suggested; and we have furrisdiction or power in dismissing the appeal, ther concluded that, although the district then this court, upon proceedings on certio- court may dismiss an appeal in its general rari, could review and correct the action of power over appeals from justices' courts, said court. If the court merely erred, how- and that it may do this for a sufficient or ever gross such error may appear to us, this Insufficient reason, still the party is not withcourt cannot, in such a proceeding, review out remedy if that court wrongfully or withthe error. We think it is manifest from out some legal cause dismisses an appeal. wbut has been said above that the district | In such a case we think the remedy is by the

writ of mandate, under sections 3640 and the views stated in that case so far as ap3641, Rev. St. 1898, to require the district plicable here. But even in a case of mancourt to vacate the order of dismissal, rein- date the legal right to require the person or state the appeal, and proceed to hear the court to proceed and the legal duty to do so cause on its merits.

must be free from doubt; otherwise even As we have already attempted to show, the this remedy must be denied. mere fact that the court misconceives the law In view of the foregoing, we will now proand acts contrary thereto in a matter where ceed to examine into the petitioner's rights it has jurisdiction of the subject-matter does under the law giving appeals from justices' not carry such act beyond the jurisdiction of courts. Such appeals are purely statutory, the court. If this were so, every judicial act and the statutes granting them must in all contrary to law in some form would carry the respects be at least substantially complied tribunal making it beyond its jurisdiction. with. The appeal in this case was dismissed

We have likewise pointed out that in such upon the ground that the sureties did not cases this court cannot review such acts in a justify respecting their qualifications, as reproceeding upon a writ of certiorari. If this quired by law. Section 3747, Rev. St. 1898, were done, the provision in the Constitution so far as material here, provides: "An appeal making the action of the district courts final from a justice's court shall not be effectual on appeals from justices' courts would, in for any purpose unless an undertaking be effect, be abrogated. We would thus do by in- filed within five days after filing the notice of direction what the law forbids us from doing appeal.” Section 3748 provides that the pardirectly. What we would thus not be per- ty filing the undertaking must serve notice mitted to review on appeal we would, in ef- of the filing thereof on the adverse party, fect, review on a writ of certiorari.

and such adverse party may then within two But we conceive the writ of mandate, as days thereafter object to the sufficiency of the same is defined by the sections of the stat- the sureties named in the undertaking, "and ute above referred to, to be designed for the unless they, or other sureties, justify before purpose of compelling action where the law the justice from whose court the appeal is enjoins it and the person or tribunal refuses taken within two days thereafter, upon notice to act in accordance therewith. The dismissal to the adverse party the appeal shall be reof an appeal, while it may be within the garded as if no undertaking had been given.” jurisdiction and power of a court, may yet From the foregoing provisions it is as clear as be unlawfully done. If the court has jur- language is capable of expressing it that risdiction to dismiss an appeal from a justice's without an undertaking there is no appeal, court for imperfections, it may likewise dis- and a failure to have the sureties justify miss one that is perfect in both form and within two days after excepting to their sufsubstance, and it may do so arbitrarily and ficiency nullifies the undertaking given, and contrary to law. Does it exceed its jurisdic- leaves the whole matter as though no undertion by doing this? Clearly not. But since taking had ever been made or filed. In this its action in disinissing an appeal is final and case, however, petitioner seeks to avoid the cannot be reviewed on appeal to this court, consequences of the foregoing provisions upon and likewise not on a writ of certiorari, is the ground that the appeal in this case is there, therefore, no remedy? We think in from a judgment entered in pursuance, of such a case a dismissal of an appeal is, in chapter 64, Rev. St. 1898, entitled “Forcible substance and effect, a refusal to proceed Entry and Detainer." It is contended that further in the matter, and, if clearly con- appeals under said chapter 64 are governed trary to law, the court so refusing may be by the provisions of section 3586, Rev. St. required to proceed in accordance with law. 1898. It is there provided, in substance, The distinction that we seek to enforce here that an appeal may be taken from a judgmust be kept in mind between jurisdiction ment under that chapter within 10 days, but of the subject matter and jurisdiction to try that such an appeal shall not stay execution the particular case on its merits. If the unless the appellant shall within 10 days file court should proceed to the trial of an appeal with the justice bis undertaking, with two case where no appeal had been taken as re- or more sureties, in an amount fixed by the quired by law, the court would exceed its justice, but not less than twice the amount of jurisdiction or power in doing so, and its act the judgment appealed from, including costs, in doing so, being in excess of jurisdiction, and that such undertaking shall be conditionwould be reviewable on a writ of certiorari, ed that in case the judgment is affirmed or upon the ground that the court presumes to the appeal dismissed the appellant will pay act where the law withholds the right to do the judgment and costs and the value of the

But if the court refuses to proceed when use of the property pending the appeal. Secit has jurisdiction and lawful authority to tion 3587, however, provides: "The prodo so, the remedy is not by certiorari, but visions of this Code relative to civil actions, by a writ of mandate. The views here enter- appeals, and new trials, • apply to tained, as we view it, are, in effect, expressed the proceedings mentioned in this chapter." by this court in the case of 0. S. L. R. Co. v. It will be observed that section 3586 is silent District Court, 85 Pac, 300, and we reaffirm 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 tbat 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 AB


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

of title of a lot, for purchase of which plain- , ment for defendants. Plaintiffs appeal. Retiffs had contracted with lI., alleging that In re

versed and remanded. liance on the pretended abstract of title furnished, slowing title in H. without incumbrance,

Cooke & Ayers, for appellants. Curler & and depending solely thereon, plaintiffs were in

King, for respondents. duced to and did purchase the land of H. and pay him therefor, is sufficient as against a general demurrer, without an allegation that the purchase depended on the abstract defendants FITZGERALD, C. J. On the 1st day of were employed to furnish, or that it in any way May, 1904, the appellants here, as plaintiffs depended on what the abstract might disclose.

in the court below, filed therein their second Ed. Note.--For cases in point, see vol. 1,

amended complaint; the matters alleged Cent. Dig. Abstracts of Title, $ 5.]

therein and pertinent to this appeal are 2. SAJIE-NATURE OF COXTRACT.

stated as follows: “That on or about the A complaint against abstracters for furnishing a defective abstract, alleging a hiring to fur

24th day of June, 1902, the plaintiffs emnish a full and complete abstract, is suflicient ployed said defendants, as such copartners, without an allegation that the abstract was to as aforesaid, for fees and reward to them be made from any particular date.

by plaintiffs paid, to examine and furnish 3. PLEADING-ASSERTION OF FACT.

to plaintiffs a true, accurate, full, and corThe allegation in a complaint against abstracters for furnishing a defer live abstract, that

rect abstract of the title to that certain lot, when plaintiff purchased the land of II., X. was piece, or parcel of land situate, lying, and the owner in fec thereof, is an assertion, not an being in the then town (now city] of Reno, assumption, that N. was the owner in fee.

in the county of Washoe, and state of [El. Note.--For cases in point, sce vol. 39,

Nevada, bounded and particularly described C'ent. Dig. Pleading, $ 2:).]

as follows to wit: That parcel of land 4. SAME. The allegation in a complaint against ab

situate in Conner's addition to said Reno, stracters for furnishing a defective abstract.

bounded on the west by Ralston strect, on that plaintiffs were ousted and dispossessed of the south by Oak street, on the east the land by due course of law, by X., is not ob

by Nevada street, and on the north by jectionable on general ciemurroi, as stating a conclusion of law, instead of facts.

the section line between sections 2 and [Ed. Note.-For cases in point, see vol. 39,

11, in township 19 north, range 19 east, Cent. Dir. Pleading, $$ 12, 2:3.]

M. D.

D. B. & M., for the purchase of 5. ABSTRACTS OF TITLE-Action AGAINST AB

which, in fee simple, and without incumSTRACTERS--PLEADING-EXIAUSTING REME- brances, the plaintiff's had theretofore conDY AGAIXST GRAXTOR.

tracted with one W. H. Hancock, who claimThe complaint against abstracters for negligently furnishing a derective abstract, by rea

er to be the owner thereof. (4) That deson of which plaintiif's lost the property bought

fendants, in the performance of the duties by them, need not show an exhaustion of remedy of such employment, did thereafter, and on against their grantor, or his insolvency; the con

or about the 25th day of June, 1902, furnish trary state of facts being a matter of affirmative defense.

to plaintiffs a pretended abstract of title to

the said land, and did report and represent 6. SAME-DEMAND ON GRAXTOR FOR RETURN OF PRICE.

to plaintiffs that the same was a full, true, The allegation in the complaint against ab- accurate, and correct abstract of title to stracters for furnishing a defective abstract, in

said land; by which pretended abstract of reliance on which they bought the property of II. for $1,100, and lost the property because he

title, it appeared and was shown that the had no title, that II. has refused and still re- sail W. H. Ilancock was the owner of said fuses to pay plaintiffs the $1,100, or any part land and premises in fee simple without any of it, impliedly shows a demand on II. for the return of the money.

incumbrances; in reliance on said pretended

abstract of title, and depending solely there. 7. PLEADING-ALLEGATION OF FACT. The complaint against abstracters for fur

on, plaintiffs were induced to and did, on nishing a defective abstract, alleging that in ie- or about the 28th day of June, 1902, purchase liance thereon plaintiff's bought the land of II. said land and premises from said Hancock, and paid him $1,100 therefor, taking a deed

and did pay him therefor the sum of $1,100, without warranty or covenant; that II. did not have title, and they were ousted by the owner;

in lawful money of the United States, and, that H. has failed and refused, and still dous as evidence thereof, plaintiffs did then and fail and refuse, to pay to plaintiffs the $1,100, there take and receive from said Hancock a or any part thereof, sufficiently alleges as an

certain deed or instrument in writing, exultimate fact, as against a general demurrer, that plaintiffs have suffered loss of $1,100. ecuted by said IIancock, and duly acknowl8. ABSTRACTS OF TITLE-ACTION AGAINST AB

edged, purporting to convey from said HanSTRACTERS — PLEADING – SHOWING IN AB- cock to plaintiffs the said land and premises STRACT.

in fee; that said deed or instrument in The complaint against abstracters for furnishing a defective title, alleging that they fur

writing contains the words 'grant, bargain, nished one showing that II. was the owner of

and sell,' but does not contain any other the land "without any incumbrances," is a sufli- Warranty or covenant whatsoever, and that cient allegation that the abstract showed that

plaintiffs have not, nor has either of them, there were no incumbrances.

ever, at any time, received any other warAppeal from District Court, Washoe Coun- ranty or covenant from said Hancock, or at ty.

all, relating to or concerning said lands or Action by A. E. Ilirshiser and others premises or the title thereto. (5) That said against B, W. Ward and another. Judy- Ilancock was not the owner of said lands or premises, or of any interest therein what- in any way depended upon what said abever except a mere equitable interest as stract night disclose." Without going inmortgagee under and by virtue of a certain to an elaborate analysis of the allegation indenture of mortgage, and that the Bank on this point, we dcem it sufficient to meet of Nevada, a corporation, was the owner in the assault of a general demurrer; and fee thereof, and that the same appeared of whether it was sufficient to repel a special record on the public records of said Washoe demurrer on the ground stated is not be county, of which plaintiffs were ignorant, fore us for determination. and which defendants could, by the exercise 2. Counsel's second point is that: “Said of proper diligence and skill have discovered, complaint does not allege that said abstract and which they failed to discover by omitting was to be made from the time of the issuing to exercise due care and skill; and defend- of the patent by the United States, nor ants were guilty of neglect and want of due from any particular date, time, or conveycare in examining into, and in the investiga- ance.” We think this allegation is sufficient. tion of, the title of said land. (6) That

(6) That It required defendants to furnish a “full and the said mortgage by and through which complete". abstract. We can see no reason said IIancock held said equitable interest, why respondents should arbitrarily take any as aforesaid, was given to secure, and did | particular date, and say that, prior to that secure, the payment of a certain promissory date, they were not required to make search note, dated and executed November 1, 1897, and report of the title. and, by its terms, payable on demand. That 3. As a third point, counsel say: "In the first plaintiffs, or either of them, dis- section 5 of page 3 of said amended comcovered or learned that said llancock was plaint, the plaintiffs allege that, at the not the owner in fee of said lands and time of the purchase of said described land premises, but was the holder only of said the Bank of Nevada was the owner in fee equitable interest, as aforesaid, was on or thereof, and that the same appeared of recabout the day of February, 1904, and ord on the public records of Washoe county ; more than six years after the date and but they allege nothing to show that said execution of said promissory note, and aft- mortgage was not due and paid prior to the er any action to foreclose the said mortgage furnishing of the abstract by defendants, and or collect the said note was barred by sec- plaintiffs simply assume that said title was tion 3718 of the Compiled Laws of Nevada in the Bank of Nevada.” On the contrary, of 1900, and when the said equitable inter- | the allegation is an “assertion” not an "asest which said Hancock held in and to said sumption" that the "Bank of Nevada was lands and premises, as aforesaid, had, with the owner in fee,” etc. out the fault of these plaintiffs, or either

4. Under the fourth point counsel say of them, become of no value whatever. (7) "plaintiffs allege that they were ousted and That said Hancock has failed and refused, dispossessed of said land and premises by and still does fail and refuse, to pay to due course of law, by the Bank of Nevada, plaintiffs, and said plaintiffs have not re- but they fail to show when or how they ceived from said Hancock, or at all, the were ousted and dispossessed of said land said sum of $1,100, or any part thereof. (8) and premises by said Bank of Nevada. They That by reason of the said Hancock's want don't show when they went into possession of title, and the fact that plaintiffs took no or that they ever had possession of said title by said deed from Hancock, and the land and premises. They don't show by fact that said Bank of Nevada was the own- what due course of law the Bank of Nevada er of said lands and premises, as aforesaid, ousted and dispossessed the plaintiffs of said the plaintiffs were ousted and dispossessed | land and premises. They simply state a conof said land and premises by due course of clusion of law, and all the authorities hold law. Wherefore plaintiffs pray judgment that you must state facts, and from those against said defendants jointly and severally, facts the conclusions are drawn.” This alin the sum of. $1,100, together with inter- legation, too, we think, good under the genest thereon at the legal rate from the 28th eral demurrer. day of June, 1902, and for costs and disburse- 5. Fifth, counsel claim that the complaint ments of suit.” To this complaint defend. does not "show that the plaintiffs, on disants filed a general demurrer, the court sus- covering the defect in the abstract, took tained the demurrer, and, on plaintiffs de proper measures to avert the loss; and, if clining to amend, gave judgment for the de- they fail to do so, cannot hold the abstracters fendants. From said judgment, this ap

this ap- liable.” This claim is, we think, untenable. peal is taken.

Plaintiffs were not required to show this. To sustain the judgment respondent's coun- If the facts were otherwise, it was a matter sel make, if we correctly gather them from of affirmative defense to be set up by defendtheir brief, many points of objection to the ants. complaint.

6. The sixth point states that there was 1. That the plaintiffs "do not allege that "nothing to show that there ever was a said purchase depended upon the abstract demand made of said Hancock for the re that was to be afterwards furnished to them | turn of said $1,100, or any part of the same, by said defendants, or that said purchase and, without a demand on said Hancock for

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