REHEARINGS DENIED

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

Anders v. Atchison, T. & S. F. R. Co. (Kan.) | Holt v. Wilson (Kan.) 108 P. 87. 109 P. 773.

THE

PACIFIC REPORTER

VOLUME 110

(43 Nev. 53)

BANCROFT v. PIKE, District Judge. (No. 1,902.)

(Supreme Court of Nevada. Aug. 5, 1910.) 1. APPEAL AND ERROR (§ 32*) — JUDGMENTS REVIEWABLE-ORDER OF DISMISSALAPPEAL FROM JUSTICE'S COURT.

Mack & Green, for petitioner. J. B. Dixon, for respondent.

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 Since an order dismissing an appeal from a justice's court, whether erroneous or not, judge, made on the 27th day of April, 1910, would be within the jurisdiction of the district | remanding to the justice court of Reno towncourt, it could not be reviewed by the Supreme Court by certiorari; being a final determination of the appeal.

ship 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

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 107-109; Dec. Dig. § 32.*] 2. JUSTICES OF THE PEACE (§ 190*)-APPEAL-firm name and style of Phenix & Stanley, DeDISPOSITION. fendants, 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.,

The district court may either dismiss an appeal from a justice's court, or may try the case de novo, but cannot refuse to do either, so that if the justice's court had jurisdiction to enter its judgment, the district court could not on appeal to it remand the case and compel the justice's court to again assume jurisdiction. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. § 734; Dec. Dig. § 190.*] 3. JUSTICES OF THE PEACE (§ 141*)-APPEAL-justice of the peace of Reno township, in DISMISSAL-WANT OF JURISDICTION OF TRIAL COURT.

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 peti§tion.

If a justice's court did not acquire jurisdiction of defendant's person, the district court would not have jurisdiction of an appeal from its judgment, and should dismiss the appeal. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 472-474; Dec. Dig. 141.*]

4. JUSTICES OF THE PEACE (§ 84*)-GENERAL APPEARANCE.

The answer of a defendant in an action before a justice's court stated that defendant objected that no copy of the complaint was served upon him, and prayed that service of summons be set aside as void, and further stated that defendant, without waiving his objection to want of service of a copy of the complaint, for answer thereto denied each allegation thereof. Held, that the justice's court acquired jurisdiction of defendant's person.

[Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 266-278; Dec. Dig. 84.*]

Certiorari proceedings by W. H. Bancroft against W. H. A. Pike, District Judge of the Second Judicial District of the State of Nevada, Washoe County, to review an order made by such court remanding a cause to a justice's court. Order annulled.

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 pray8ed for judgment against 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,

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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.

in Reno township, Washoe county, Nevada; | case would then be within the rule laid down that thereafter on the 11th day of January, in Andrews v. Cook, 28 Nev. 265, 81 Pac. 303, 1910, said defendant G. S. Phenix, appeared and authorities therein cited. Such an order 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 was 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 afliant 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 ten 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 ten 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

The Constitution gives to district courts final appellate jurisdiction over cases arising in justice's 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, § 3634; Const. art. 4, § 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, 419, 103 Pac. 394, 105 Pac. 99, and authorities therein cited; Security Co. v. Boston Co., 126 Cal. 418, 58 Pac. 941, 59 Pac. 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