Milton B. Badt, for Petitioner.
C. B. Henderson and Carey Van Fleet, for Respondent.
By the Court, McCarran, J.:
This is a proceeding in certiorari. Petitioner herein obtained a judgment in the justice court of Metropolis township, in Elko County, for the sum of $100, together with costs in the sum of $31 and attorney's fees. A notice of appeal was filed in the justice court by the defendant in the action, the party against whom the judgment was rendered, and an undertaking on appeal, with two sureties, was filed. Petitioner filed and served a notice of exception to the sufficiency of the sureties on the appeal bond. It appears from the record that the sureties on said appeal bond filed in the justice court an instrument over their signatures, entitled Certification of Justification of Sureties. This, however, was filed without notice to petitioner, who had excepted to the sufficiency of the sureties. No further proceedings appear to have been had in the justice court on petitioner's notice of exception to the sufficiency of the sureties, and the record was certified to the district court. The matter coming up in the district court, petitioner moved to dismiss upon the ground that the court had no jurisdiction, for the reason that, the sureties upon the appeal bond having failed to justify upon notice, the appeal from the justice court had not been perfected. The motion to dismiss the appeal having been overruled, the writ of certiorari is invoked to review the action of the lower court in this respect.
1. The respondents herein contend that certiorari will not lie to review the action of the trial court in this proceeding, for the reason that the question passed upon by the district court was one in which that court might properly exercise jurisdiction; and, having passed upon the same, its action in that respect is not reviewable.
In the case of Floyd and Guthrie v. Sixth Judicial District Court, 36 Nev. 349, 135 Pac. 922, we had occasion to review this question, as it might be affected by a writ of mandamus. In that case we held that where an inferior court erroneously refuses to entertain jurisdiction on a matter preliminary to a hearing on the merits, it may be required to proceed by mandamus. We think the reasoning set forth there may apply with equal force where certiorari is relied upon to review the action of an inferior court in erroneously assuming jurisdiction. If mandamus is the proper remedy to require an inferior tribunal to proceed where it has erroneously divested itself of jurisdiction, manifestly certiorari is the proper remedy to review the action of an inferior tribunal, where it has erroneously assumed jurisdiction.
The vital question here is: Did the district court entertain a matter of which it had no jurisdiction?
It was said by this court in the case of Andrews v. Cook, 28 Nev. 270, 81 Pac. 304:
When an appeal is regularly taken, the court not only has jurisdiction to try the cause upon its merits, but it has entire and complete jurisdiction of the cause for any and all purposes.
But where the appeal is not regularly taken, as where some statutory step in the proceedings has been omitted in the court of first instance, then the converse of the rule asserted in Andrews v. Cook, supra, is true, and if the district court assumes jurisdiction, its act in that respect is, in our judgment, in excess of jurisdiction, and hence reviewable on certiorari.
2. A very thorough and comprehensive analysis of the question at bar is presented in the case of Hoffman v. Lewis, 31 Utah, 179, 87 Pac. 167. In that case the Supreme Court of Utah was dealing with the identical question
presented here, and the statute of the State of Utah is similar to ours. The court there passed upon the propriety of the writ of certiorari to review the action of the district court in matters of this kind. In this respect the court said:
If the court should proceed to the trial of an appeal case where no appeal had been taken as required by law, the court would exceed its jurisdiction or power in doing so, and its act in doing so, being in excess of jurisdiction, would be reviewable on a writ of certiorari, upon the ground ...