Chas. H. Burritt and A. Grant Miller, for Relator.
James Glynn, A. A. Heer, and George S. Brown, for Respondent.
By the Court, McCarran, J.:
In this proceeding relator, A. L. Martha Howe, prays for a writ of mandamus to issue against the respondent,
as district court judge of the Second judicial district court of the State of Nevada, to the end that case No. 10001, entitled Edward C. Howe v. A. L. Martha Howe, be reinstated, and that respondent be required to hear and determine the same. The original action sought to be reinstated is one in divorce, in which the plaintiff, Edward C. Howe, filed his complaint and obtained service of summons pursuant thereto upon defendant A. L. Martha Howe, under the provisions of our statute for substituted service by publication, and also by personal service upon the defendant in the city of Washington, D. C., said service being made on the 30th day of September, 1913. The defendant, petitioner herein, on the 27th day of January, 1914, filed in the district court a duly verified answer and cross-complaint in said action, in which cross-complaint petitioner, as defendant, prayed for affirmative relief; by way of absolute divorce and for an injunction against plaintiff. Thereafter, pursuant to motion on the part of the defendant, the court made an order directing payment, on the part of the plaintiff, of certain sums of money as attorney's fees, court costs, and for the taking of depositions.
On the 30th day of January, 1914, the plaintiff filed a verified replication to the answer of petitioner. Thereafter, on the 7th day of May, 1914, the plaintiff having failed to comply with the orders of the district court relative to payment of counsel fees and court costs, defendant, through her attorneys, moved the court for an order directing the said plaintiff to show cause why he should not be punished for contempt of court for failing therein. Thereafter, on the 18th day of May, 1914, the court made an order directing that proceedings in the action be stayed until such time as the plaintiff should comply with the orders of the court theretofore made, or until such time as plaintiff could satisfy the court that he was unable to comply with said order. Certain showing by way of affidavit was made to the district court by plaintiff, tending to establish his inability to comply with the order of the court. On the 20th
day of June, 1914, the defendant appeared in the district court and waived all contempt proceedings in said action against plaintiff. The case was set for trial by order of the court for the 25th day of June, 1914, and on that date the following proceedings took place, as appears from the reporter's notes:
This being the time fixed for the trial of the above-entitled action, the plaintiff, by his attorney, Jerome L. Van Derwerker, Esq., and the defendant and her attorney, Chas. H. Burritt, Esq., being present in court in response, to the question of the court, Are you ready to proceed?' plaintiff's attorney made a statement to the court regarding the whereabouts of the plaintiff. Defendant moved the court to proceed to trial upon defendant's cross-complaint, offering to prove plaintiff's residence by the testimony of other witnesses. Motion denied.
In denying defendant's motion to proceed to trial on her cross-complaint, the court filed a written decision, which is in part as follows.
It appearing to the satisfaction of the court that the plaintiff is without the jurisdiction of the court, and that this case has been set for trial some six weeks prior to this date, and that the plaintiff, according to the statement of his counsel, was repeatedly informed of that fact, whereupon the defendant requested the court to hear her counterclaim offering to prove the residence of the plaintiff by other witnesses than the plaintiff, and, the court examining the record and finding that the plaintiff was in contempt of court for not complying with the orders of the court made heretofore, and not appearing in the proper manner to purge himself of such contempt, and not appearing personally to establish his residence, the court thereupon, notwithstanding the counterclaim of the defendant and the offer of the defendant, ordered the case dismissed on the merits, for the reason that the court was of the opinion that the plaintiff had no standing in court, and the defendant could not, under such circumstances, prove his residence, and the defendant being a nonresident of this state. Whereupon, of the court's own motion, the case is hereby dismissed.
 It is the contention of respondent that mandamus will not lie in this case. This court, however, has settled that question to the effect that where the district court wrongfully or erroneously divests itself of jurisdiction, or refuses to assume jurisdiction, mandamus is the proper remedy. (Floyd and Gutherie v. Sixth Judicial District Court, 36 Nev. 349.)  Section 252 of the civil practice act, being section 5194 of the Revised Laws, provides:
When the defendant interposes a counterclaim, and thereupon demands an affirmative judgment against the plaintiff, his right to a provisional remedy is the same as in an action brought by him against the plaintiff, for the cause of action stated in the counterclaim, and demanding the same judgment; and for the purpose of applying to such a case the provisions of this act relating to provisional remedies, the defendant is deemed the plaintiff, ...