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Radovich v. W. U. Tel. Co.

December 31, 1913

J. L. RADOVICH, PETITIONER, V. WESTERN UNION TELEGRAPH COMPANY AND L. N. FRENCH, DISTRICT JUDGE, PRESIDING IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, RESPONDENTS.


Mack & Green, for Petitioner.

Lewers & Henderson and Walter M. Kennedy, for Respondent.

By the Court, Norcross, J.:

This is an original proceeding in certiorari, to review an order of the Second Judicial District Court, L. N. French, judge, presiding, striking from the files a cost bill filed on behalf of the plaintiff in an action on appeal from the justice's court in and for Reno township in which the petitioner, J. L. Radovich, is plaintiff and the Western Union Telegraph Company is defendant. The motion to strike the cost bill was granted by the judge of the lower court, upon the ground that there was no service thereof as required by law.

1, 2. Unquestionably, a court has jurisdiction to strike out a cost bill not filed within the time allowed by law, but whether an order, made upon motion duly noticed, striking out a cost bill duly filed, is in excess of jurisdiction so that the same may be annulled on certiorari is not so clear. We think the rights of parties will better be preserved by holding that an erroneous order, striking out papers properly filed, is an excess of jurisdiction. In cases in which a remedy by appeal does not lie, there is no way in which such an erroneous order could be corrected if it were not deemed to be jurisdictional. Of course, such an order should not be deemed jurisdictional simply because by so doing a remedy can be provided for correcting the error. Important rights may depend upon papers filed. If they have been filed in accordance with law, the power ought not to be held to lie in any court to

[36 Nev. 341, Page 344]

strike them from the files and thus destroy the basis of a right. The record in this proceeding, certified upon from the court below shows that the case was tried by a jury on the 21st day of November, 1912, and verdict for the plaintiff returned, and that upon the same day judgment in pursuance of the verdict was entered. On the next day, November 22, plaintiff filed his cost bill, and on the same day served a copy thereof “personally upon George L. Morgan, the manager and agent for the service of papers of [on] the defendant in the State of Nevada”; that there was no service of a copy of such cost bill upon the attorneys who appeared in the action for the defendant; that on the 27th day of November following, defendant, through its attorneys, filed and served a motion to retax the costs by striking out certain items and reducing the amount of certain other items; that on the 4th day of December following, plaintiff, through his counsel, filed a notice of motion to strike the motion to retax upon the ground that the same was not filed in time, a copy of which was served the preceding 30th of November; that on the 7th day of December, defendant, through its counsel, filed and served a motion to strike out the cost bill upon the ground that the “said alleged cost bill was never served upon the defendant as required by the statute”; that on the 26th day of December defendant, by leave of court, filed an amendment to its motion to retax so as to include a motion to strike out the several items because of failure to serve the defendant with a copy of the bill as required by law; that on April 1, 1913, the order striking out the cost bill was entered and filed.

The affidavit of service attached to the original cost bill sets forth that C. E. Mack, one of the counsel for the plaintiff, “served the annexed cost bill * * * personally upon George L. Morgan, the manager and agent for the service of papers of [on] the defendant in the State of Nevada; * * * that the attorneys for the defendant, Messrs. Lewers & Henderson, are absent from Washoe County, Nevada, and have no office or residence in Washoe

[36 Nev. 341, Page 345]

County, Nevada, and for that reason the cost bill could not be served upon the attorneys for the defendant.”

3. Section 445 of the civil practice act (Rev. Laws, 5387) provides: “The party in whose favor judgment is rendered, and who claims his costs, must deliver to the clerk, and serve a copy upon the adverse party, within five days after the verdict or notice of decision * * * a memorandum of the items of his costs. * * * Within three days after service of the memorandum, the adverse party may move the court, upon two days' notice, to retax and settle the costs, a copy of which motion shall be filed and served on the prevailing party claiming costs.”

Section 433 of the civil practice act (Rev. Laws, 5375) provides that: “In all cases where a party has an attorney in the action or proceeding, the service of papers, when required, shall be upon the attorney instead of upon the party, except subpenas, or writs, and other processes issued in the suit, and of papers to bring him into contempt.”

It is the contention of counsel for the petitioner that service of the cost bill could not be properly made upon the attorneys for the party against whom judgment is entered, for the reason that the entry of judgment terminated the authority of the attorneys to act. We may concede, for the purposes of this case, that when a judgment reaches such a finality that it cannot thereafter be affected, except by appeal, the authority of the attorneys for the losing party in the case may be deemed to be terminated; but as long as the judgment may be affected by a motion for new trial, motion to modify or to vacate, or the amount of costs to be inserted therein remains a matter open for settlement, we think the authority of counsel has not terminated. The affidavit of service attached to the cost bill contains a paragraph explanatory of the reason why the cost bill was not served upon the attorneys for the defendant in the action. It is manifest from this that counsel for the plaintiff considered counsel for defendant the proper

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persons to serve if they had been residing or had an office in the county where the suit was tried. The resident agent of the foreign corporation, defendant, of course, is not the adverse party any more than its attorneys. Only such papers may be served upon such resident agent as are authorized by the statute. The only papers which may be served upon the resident agent are such as are in the nature of process. (Rev. Laws, 5024, 5375.) A ...


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