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Lawson v. Dunseath

January 1918

J. W. LAWSON, APPELLANT, V. HARRY DUNSEATH, AS JUSTICE OF THE PEACE OF THE TOWNSHIP OF TONOPAH, COUNTY OF NYE, AND GEORGE L. BAILEY, RESPONDENTS.


Appeal from Fifth Judicial District Court, Nye County, Mark R. Averill, Judge.

H. R. Cooke, for Appellant.

H. H. Atkinson, for Respondents.

By the Court, McCarran, C. J.:

This is an appeal from a judgment and order dismissing a petition for a writ of certiorari.

On petition of the appellant, the district court issued

[41 Nev. 321, Page 323]

an order to show cause, addressed to Harry Dunseath, justice of the peace of Tonopah township, by which order that officer was required to appear and show cause, if any he had, why the proceedings mentioned and described in the petition for the order should not be quashed, vacated, and set aside, and that the justice of the peace produce before the district court on said hearing the entire original documents, papers, and files pertaining to the proceedings mentioned in the petition or a transcript or true copy thereof, without changes, additions, or corrections, etc. The appeal is based upon three assignments of error. We need determine but one, i.e.:

“I. The holding of the lower court that the complaint in the case of Bailey v. Lawson was actually filed, and said action duly commenced, there being no endorsement upon said complaint as required by law.”

It appears that one Bailey had attempted to commence an action in the justice's court of Tonopah township against the appellant, Lawson. The steps taken to commence the action in the justice's court, as disclosed by the return of the justice in response to the order to show cause, appear as follows: An instrument entitled a complaint, on which no file marks or endorsement of any kind appear. The instrument is entitled:

“In the Justice's Court of Tonopah Township, Nye County, Nevada. George L. Bailey, Plaintiff, v. J. W. Lawson, Defendant. Complaint.”

The certified copy of the justice's docket filed in the lower court pursuant to the order to show cause, after an entitlement of the case in the same caption as that of the complaint, shows among other things, the following entries:

“Date, 8-23-15. Demand, $271. Date, 8-23-15. Complaint filed. Case docketed. Summons issued.”

It is the contention of appellant here under his first assignment of error that, inasmuch as no endorsement appears upon the complaint filed in the justice's court setting forth the date upon which complaint was filed,

[41 Nev. 321, Page 324]

no action was commenced in that court as contemplated by the provisions of our civil practice act.

The manner in which an action is commenced in a justice's court is governed, controlled, and prescribed, as we view it, by two ...


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