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State v. Ducker

December 31, 1912

THE STATE OF NEVADA, EX REL. PACIFIC RECLAMATION COMPANY AND GEO. M. BACON, RELATOR, V. EDWARD A. DUCKER, JUDGE OF THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF HUMBOLDT, RESPONDENT.


Platt & Gibbons and Geo. S. Brown, for Relators.

Cheney, Downer, Price & Hawkins, for Respondent.

By the Court, Norcross, J.:

This is an original proceeding in mandamus to require the respondent to fix the amount of an undertaking to stay the execution, operation, and effect of an order

[35 Nev. 214, Page 218]

granting an injunction pendente lite in an action which involves the right to certain of the waters of Humboldt River, instituted by the Union Canal Ditch Company and others against the above-named relators, pending an appeal from such order. The motion of the defendants below, relators herein, for an order fixing the amount of a stay bond pending the appeal was denied “upon the grounds that a proper case does not appear requiring the fixing of a stay bond, and that no appeal lies from the order of the court granting a temporary injunction.”

Two questions are presented in this proceeding:

(1) Does an appeal lie from an order granting an injunction?

(2) Was the refusing of a stay bond pending an appeal from the order a matter within the discretion of the trial judge?

[1] Section 387 of the practice act, which went into effect January 1, 1912 (Rev. Laws, 5329), provides: “An appeal may be taken: (1) * * * (2) From an order granting or refusing a new trial, or refusing to grant or dissolve an injunction, or appointing or refusing to appoint a receiver, or dissolving or refusing to dissolve an attachment, or changing or refusing to change the place of trial, and from any special order made after final judgment, within sixty days after the order is made and entered in the minutes of the court. (3) * * *”

Section 330 of the former practice act adopted in 1869 (Stats. 1869, p. 248), provided that : “An appeal may be taken: * * * From an order granting or refusing a new trial, from an order granting or dissolving an injunction, and from an order refusing to grant or dissolve an injunction. * * *”

Section 6 of “An act concerning courts of justice of this state, and judicial officers,” approved January 26, 1865 (Rev. Laws, 4833), provides: “The supreme court shall have jurisdiction to review upon appeal: First, a judgment in an action or proceeding, commenced in a district court, when the matter in dispute is embraced

[35 Nev. 214, Page 219]

in the general jurisdiction of the supreme court, and to review upon appeal from such judgment any intermediate order or decision involving the merits and necessarily affecting the judgment; second, an order granting or refusing a new trial in such cases; an order granting or refusing to change the place of trial of an action or proceeding after motion is made therefor in the cases in which that court has appellate jurisdiction, and from an order granting or refusing to grant an injunction or mandamus in the cases provided for by law.”

It is the contention of counsel for respondent that, as no provision is contained in section 387, supra, of the present practice act authorizing an appeal from an order granting an injunction, no appeal lies therefrom. It is the contention of counsel for relators that the right of appeal exists under the provisions of section 4833, Rev. Laws, supra. The original practice act, adopted by the territorial legislature in 1861, provided for an appeal from an order “refusing to change the place of trial.” (Stats. 1861, pp. 361, 363, secs. 274, 285.) The statute of 1865, relative to courts of justice and judicial officers, referred to, supra, was adopted at the first legislative session following the organization of the state government. This act was designed largely to meet the situation occasioned by the changes made in the courts by the constitution. The practice act of 1861 remained in force after the state organization and until specifically repealed by the practice act of 1869, which in turn was specifically repealed by the practice act of 1912. The practice act of 1869 (section 330) did not contain a provision for an appeal from an order changing or refusing to change the place of trial. Both the practice acts of 1861 and 1869 contained provisions for an appeal “from an order granting or dissolving an injunction, and from an order refusing to grant or dissolve an injunction.”

With these preliminary observations we come to a consideration of the decisions of this court in the cases of Peters v. Jones, 26 Nev. 259, and State v. Shaw, 21 Nev. ...


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