Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
H. R. Cooke, for Appellants.
H. H. Atkinson, for Respondents.
By the Court, Norcross, C. J.:
After two trials in the justice court and a trial de novo in the district court on appeal from the judgment of the justice's court, the question of the jurisdiction of the justice's court to try the case originally, and of the district court to try the case as on appeal, is raised for the first time on appeal to this court. The question, however, is one of great importance, not only to the parties to the present action, but because it goes to a matter of procedure based on the organic law of the state.
1. Section 8 of article 6 of the state constitution, in part, reads:
The legislature shall determine the number of justices of the peace to be elected in each city and township of the state, and shall fix by law, their powers, duties and responsibilities; provided, that such justices' courts shall not have jurisdiction of the following cases, viz.: * * * Of cases that in any manner shall conflict with the jurisdiction of the several courts of record in this state; and provided further, * * * the legislature may confer upon said courts, jurisdiction concurrent with the district courts, of actions to enforce mechanics' liens, wherein the amount (exclusive of interest) does not exceed three hundred dollars. * * *
By the statute it is provided that the justices' courts shall have concurrent jurisdiction with the district courts of actions for the enforcement of mechanics' liens, where the amount of the lien sought to be enforced, exclusive of interest, does not exceed three hundred dollars. (Rev. Laws, 5714, subd. 11.)
There is some slight difference in the wording of the constitution and the wording of the statute cited supra; but, as the legislature cannot by statute confer a broader jurisdiction upon justices' courts than that authorized by the constitution, we need only consider the language of the constitution.
It is the contention of counsel for appellant that the language of the constitution, cited, supra, does not contemplate the conferring of jurisdiction upon justices' courts of an action to foreclose two or more mechanics' liens where the aggregate amount of the liens exceed $300, notwithstanding each of the several liens sought to be foreclosed in an action is for an amount less than $300. We agree with this contention of counsel. Our attention has not been called to a similar provision appearing in the constitution of any other state which has been construed. At the time this provision was under consideration by the constitutional convention, it was contended by Mr. Brosnan (afterwards a justice of this court) that none of the state constitutions distinctly defined the jurisdiction of justices of the peace, but that such jurisdiction was a matter which the legislature was empowered to fix, citing American Constitutions. (Nevada Constitutional Debates, p. 691.)
Examining the history of this provision of our constitution, we find that the original proposed draft of the section recommended by the committee did not contain such provision. In this connection we find the following resolution offered by Mr. Banks:
Resolved, That article 6 be referred to the judiciary committee, with instructions to amend the same so as to give to justices of the peace jurisdiction in all cases of forcible entry and unlawful detainer, and mechanics' liens, where the amount involved does not exceed three hundred dollars. (Nev. Const. Debates, p. 688.)
Discussing this proposed amendment, Mr. De Long is reported (page 688) as saying:
Suppose we confer jurisdiction, as he proposes, to the extent of $300, in cases of mechanics' liens. There may
be one mechanic who claims a lien of only $300, and he brings his suit before a justice of the peace. But the law requires that all other parties holding liens on that property, when he commences to foreclose, shall come forward and present their claims, and it is a principle of equity that the first claimant shall be estopped from proceeding until all the other claims are united with his. Consequently, there are several men having liens, to the amount of $10,000, perhaps, on the same building. They cannot present that case in a justice's court, because the court cannot render a judgment for such an amount; and what are you going to do? It is evident that you cannot settle it by one suit, and consequently you must permit a multiplicity of suits. Suppose we engraft in the article the provision which the gentleman suggests, what is to be done in a case where there is one lien of $10,000 and another of $300? Both liens must be paid, and the proper way is to have them all come in together, that the chancellor may make his decree in such manner that full and fair equity may be done to all; but under this provision the $300 man would be obliged to go off and commence suit on his own hook. It would certainly increase the difficulties in the way of obtaining justice for the poor man.
To these remarks Mr. Banks is reported (page 689) as replying as follows:
I wish to reply to that portion of the speech of the gentleman from Storey (Mr. De Long), in which he refers to mechanics' liens, and what would be the course of proceeding in such a case as the one to which he has referred. Now suppose, for instance, that this amendment be adopted, and one man brings his suit under the mechanic's lien law, claiming that he is entitled to receive some amount less than $300; then others come in with their claims, amounting in the aggregate to a sum which exceeds $300. At the very worst, all that is then required is to transfer the case to a court of competent jurisdiction. Such has been the practice in California, and no doubt it will be in this state, if we shall adopt this proposition.
The form of the provision as finally adopted was drafted by Judge Brosnan. (Debates, pp. 700-702.) Relative to the final draft, the following colloquy is reported (page 702) as occurring between Delegates Banks and Brosnan:
Mr. BanksThen I understand from the gentleman from Storey that, in case of the foreclosing of mechanics' liens, suit may be brought, within the amount of $300, in a justice's court. That is, it may be brought either in a justice's court, or the district court, provided the amount involved is less than $300.
Mr. BrosnanThe mechanic having a lien to that amount has his choice of courts.
2. Relative to the consideration to be given expressions made in debate by delegates to the constitutional conventions, this court in State ex rel. Lewis v. Doron, 5 Nev. 409, said:
It is not improper in this connection to examine the debates upon the subject, though of course they are not authoritative, nor is any binding effect to be given them, as it is the text of the constitution which the people adopted.
See, also, Moore v. Orr, 30 Nev. 470, 98 Pac. 398.
It is the amount which cannot exceed $300 according to the language of the section. What amount? The amount of one particular lien, or the amount of several liens which the action may be instituted to foreclose? The law in force in the territory of Nevada at the time of the adoption of our constitution, as the law of the state now provides, made provision for the foreclosing of all liens in one action. (Stats. 1861, p. 37.) Referring to the lien law of California, the supreme court of that state in Mars v. McKay, 14 Cal. 128 (decided in 1859), said:
The idea of a multiplicity of suits in cases like the present is expressly excluded. The statute requires that every lien on the same property shall be litigated and enforced in the same action, and every suit brought to enforce a particular lien must be regarded ...