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Wong Kee v. Lillis

January 1914

WONG KEE, APPELLANT, V. H. M. LILLIS, AS JUSTICE OF THE PEACE OF LAS VEGAS TOWNSHIP, RESPONDENT.


Appeal from the Fourth Judicial District Court, Clark County; E. J. L. Taber, Judge.

Richard Busteed, for Appellant.

Stevens & Van Pelt, for Respondent.

By the Court, McCarran, J.:

This is an appeal from an order of the district court of the Fourth judicial district denying petitioner's application for a writ of certiorari to review a judgment entered by respondent as justice of the peace of Las Vegas township against petitioner and in favor of Antonio Mendez, plaintiff in the justice court, in the case of Mendez v.

[37 Nev. 5, Page 6]

Wong Kee. In the court below petitioner prayed that a writ of certiorari be issued and directed to the justice of the peace commanding him to transfer to the clerk of the district court a transcript of the proceedings had in that court whereby judgment was rendered against petitioner, and in this respect it is the contention of petitioner that the justice court had no jurisdiction to proceed with the cause or render judgment in the case for the reason that there was a defect in the service of summons. Petitioner's Exhibit A is a copy of the summons served upon petitioner as defendant in the justice court, and it is admitted that the copy of the summons as set forth in the transcript is true and correct. In that copy no signature of the justice of the peace appears as having issued the summons. In the transcript of the docket of the justice court the following entry appears: “March 20th, Attorney Van Pelt came into court and made a return on summons as by law provided.”

[1] A motion to dismiss this appeal has been filed by respondent, and in suport of his contention we are referred to the case of Bienenfeld v. Fresno Milling Co., 82 Cal. 425, 22 Pac. 1113, wherein the Supreme Court of California held that an appeal from a judgment and order of the superior court, dismissing a writ of certiorari and affirming a judgment of the district court, could not be reviewed on appeal for the reason that appellate jurisdiction of the supreme court did not extend to such a case. But in this respect it must be observed that the Supreme Court of California, in the case of Heinlen v. Phillips, 88 Cal. 557, 26 Pac. 366, in a similar proceeding expressly overruled its decisions in the Bienenfeld case, and said: “A motion is made to dismiss the appeal upon the ground that, since the amount involved is less than $300, the court is without jurisdiction. And the case of Bienenfeld v. Fresno Milling Co., 82 Cal. 425, 22 Pac. 1113, decided by department 2 of this court, sustains the position. But that case is in conflict with the prior decisions, which in the pressure of business were overlooked, and we think

[37 Nev. 5, Page 7]

it is best to return to the settled rule. The point was decided in Winter v. Fitzpatrick, 35 Cal. 269, which overruled a prior case. * * * This case was approved and followed in Morley v. Elkins, 37 Cal. 456, and Palache v. Hunt, 64 Cal. 474, 2 Pac. 245. This would seem to be sufficient to establish the rule; and, as the department did not have before it the case mentioned, we think that Bienenfeld v. Fresno Milling Co., 82 Cal. 425, 22 Pac. 1113, must be overruled. The motion to dismiss is therefore denied.”

Counsel for respondent refer us to the case of Andrews v. Cook, 28 Nev. 265, 81 Pac. 303, and also to the case of Treadway v. Wright, 4 Nev. 119, and Floral Springs Water Co. v. Rives, 14 Nev. 435. In the case of Floyd & Guthrie v. Sixth Judicial District Court, 36 Nev. 349, 135 Pac. 922, this court expressly overruled the doctrine as annunciated in the case of Treadway v. Wright, 4 Nev. 119, and Andrews v. Cook, 28 Nev. 265, 81 Pac. 303.

It is our judgment that the doctrine annunciated in the case of Heinlen v. Phillips, supra, establishes the better rule in a case of this kind, and this court will entertain an appeal from an order and judgment of the lower court in certiorari from the justice court. The motion to dismiss is therefore denied.

[2-3] On the merits of the case it must be observed that our civil practice act, applicable to the manner of commencing actions in this justice court, prescribes that an action in the justice court is commenced by filing a complaint and the issuance of summons thereon. The summons must be directed to the defendant and signed by the justice. (Sections 5722 and 5727, Revised Laws of Nevada.)

The record discloses that the only matter relative to the service of summons upon the defendant was the docket entry made on March 20, as follows: “Attorney Van Pelt came into court ...


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