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Jensen v. District Court

December 31, 1916

CLAUS P. JENSEN, PETITIONER, V. THE DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF ESMERALDA, AND HON. J. EMMETT WALSH, JUDGE OF SAID COURT.


Adams F. Brown, for Petitioner.

M. A. Diskin, District Attorney, for Respondent.

By the Court, Norcross, C. J.:

This is an original proceeding in mandamus. Upon a trial before the justice of the peace of Goldfield township, petitioner, on the 11th day of March, was convicted upon a misdemeanor charge, and ordered to appear for

[40 Nev. 135, Page 137]

sentence on the 13th day of March following. On the day appointed, sentence was imposed to the effect that petitioner be fined in the sum of $100, and that he pay the costs accrued. On the 15th day of March following, petitioner filed and served a notice of appeal in words and figures following:

“In the Justice's Court of Goldfield Township, in the county of Esmeralda and State of Nevada. State of Nevada, Plaintiff, v. Claus P. Jensen, Defendant. Notice of Appeal. To the State of Nevada, Plaintiff Above Named, and to Its Attorney, M. A. Diskin, District Attorney of Said Esmeralda County, and to Alfred French, Acting Justice of the Peace of Goldfield Township Aforesaid, in the County of Esmeralda and State of Nevada: You and each of you will please take notice that Claus P. Jensen, the defendant in the above-entitled action, intends to appeal, and that he does hereby appeal, to the district court of the Seventh judicial district of the State of Nevada, in and for the county of Esmeralda, from the judgment of said justice's court made on the eleventh day of March A. D. 1916, finding this defendant guilty of the offense of receiving and buying certain personal property from persons who were in an intoxicated condition, and from the judgment and sentence of said court passed upon this defendant on the thirteenth day of March, A.D. 1916, under which it was ordered, adjudged, and decreed by the court that for said offense the defendant be fined in the sum of one hundred dollars and all costs, and if any part of said fine and costs be not forthwith paid, then he be imprisoned in the county jail of Esmeralda County, State of Nevada, one day for each two ($2.00) dollars of the fine not paid.

“This appeal is taken on questions of both law and fact.

“Dated at Goldfield, Nevada, this fifteenth day of March, A. D. 1916. “Adams F. Brown, Attorney for Defendant.”

Upon motion of the district attorney, the appeal was

[40 Nev. 135, Page 138]

dismissed for want of jurisdiction to entertain the appeal. This proceeding is to compel the respondent court to reinstate the appeal and try the case. It was the contention of counsel for respondent in the court below, and now in this court, that the appeal was not duly perfected because of alleged defects in the notice and undertaking. As the sufficiency of the undertaking only goes to the question of the right of the petitioner to be released from custody or to a stay of proceedings under the judgment pending the appeal (Rev. Laws, 7513), we are of the opinion that it is unnecessary to refer to that document. The jurisdiction of the district court to entertain the appeal is governed by the filing and service of the notice of appeal. By Rev. Laws, 7516, it is provided that:

“An appeal duly perfected * * * may be dismissed on either of the following grounds:

“1. For failure to take the same in time.

“2. For failure to appear in the district court ...


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