William W. Griffin, for Relator.
John M. Chartz, for Respondent.
By the Court, McCarran, J.:
This is an original proceeding in certiorari. Upon the petition of relator, an order was issued, directing the respondent to show cause why a writ of certiorari should not issue. By stipulation, the entire matter may be considered as though the writ had issued in the first instance.
An action was commenced in the justice court of Carson township by Ford, McLaughlin, and Kitzmeyer against the relator, James Regan. The complaint was filed in that court on the 16th day of February, 1916; and on the 18th of the same month petitioner here, who was defendant in the action, appeared specially and filed a motion to dismiss the complaint, upon the ground that the court had no jurisdiction of the subject-matter of the action.
On the 19th of February, an order was made in the justice court setting the hearing on said motion for the 23d day of February at 10:30 a.m.
On the 24th day of February, the matter being considered by the court, an order was issued denying Regan's
motion to dismiss. On the same day, to wit, the 24th day of February, attorney for plaintiffs Ford, McLaughlin, and Kitzmeyer asked that judgment be entered against the defendant, Regan, on the ground that he had failed to appear within the time limit of five days contained in the summons, as prescribed by law. Attorney for defendant, relator herein, being present in court, asked time in which to answer. The matter being submitted, the court on the 24th day of February rendered judgment denying the defendant time to answer, on the ground that the time as prescribed by law had expired, and at the same time granted plaintiff's motion for a judgment.
On the 29th day of February, the court heard evidence in behalf of the plaintiff and entered judgment in their behalf for the sum of $210, the same being triple damages, for $25 attorney's fees, and costs of court, and for a writ of restitution covering certain property described in the complaint.
1, 2. It is the contention of petitioner here that the respondent, as justice of the peace, exceeded his jurisdiction when, on the 28th day of February, he refused to allow petitioner to answer the complaint and make defense to the merits. He asserts that the special appearance made for the purpose of testing the jurisdiction of the court constituted an answer, and in this respect respondent refers to the several provisions of our civil practice act. Section 294 of that act (Rev. Laws, 5236) is as follows:
Judgment may be had, if the defendant fail to answer the complaint, as follows:
1. In an action arising upon contract for the recovery of money or damages only, if no answer has been filed with the clerk of the court within the time specified in the summons, or such further time as may have been granted, the clerk, upon the application of the plaintiff, shall enter the default of the defendant, and immediately thereafter enter judgment for the amount specified in the summons. * * *
2. In other actions, if no answer has been filed with the clerk of the court within ...