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Mazade v. Justice Court

December 31, 1918

LOUIS MAZADE, APPELLANT, V. JUSTICE'S COURT OF GOLDFIELD TOWNSHIP, AND MARVIN ARNOLD, JUSTICE OF THE PEACE THEREOF, RESPONDENTS.


Certiorari by Louis Mazade to review a judgment of the Justice's Court of Goldfield Township, Esmeralda County, in an action by M. C. Peterman against Louis Mazade. From the judgment of the district court dismissing the writ of certiorari and order on motion for new trial adhering to the former ruling, Mazade appeals, and defendant moves to dismiss the appeal. Appeal dismissed.

E. Carter Edwards, for Appellant.

M. A. Diskin, for Respondent.

By the Court, McCarran, C. J.:

An action was commenced in the justice court of Goldfield township in which one M. C. Peterman was plaintiff and Louis Mazade was defendant. Judgment was entered against defendant in that court and he sued out a writ of certiorari in the district court. The proceedings in the district court were all had under the entitlement, “Louis Mazade v. Justice's Court of Goldfield Township, in the County of Esmeralda, State of Nevada, and Marvin Arnold, Justice of the Peace of said Justice's Court.”

In the district court the writ of certiorari was dismissed. On motion for new trial, the court adhered to its former ruling. Petitioner in the district court, who was defendant in the justice court, has attempted to appeal to this court from the ruling and order of the district court. A motion to dismiss the appeal is earnestly prosecuted here, and we regard at least one point raised as conclusive.

1. As we have already noted, all the proceedings in furtherance of the writ of certiorari in the district court were in a matter entitled as above set forth. In attempting to come to this court, however, the entire proceeding on appeal, as instituted within the time allowed (if it was within time), is entitled “Peterman v. Louis Mazade.” This was the entitlement of the action in the justice court, and an appeal from that could at most only be taken to the district court; the latter

[41 Nev. 481, Page 483]

having final appellate jurisdiction (Leonard v. Peacock, 8 Nev. 157; Bancroft v. Pike, 33 Nev. 80, 110 Pac. 1.)

2. It is insisted by respondent here that this appeal should be dismissed, as no bond or undertaking on appeal was ever filed. In the record we find an instrument purporting to be a “Bond on Appeal from Judgment and Stay of Execution.” this instrument is entitled “M. C. Peterman v. Louis Mazade.” There is no appeal to this court and no notice of appeal from the judgment or to stay execution in the case of “M. C. Peterman v. Louis Mazade.” The judgment in that case was and is in the justice court of Goldfield township. The execution, if any were to issue, could only issue from the justice's court. The matter in the district court was a proceeding in certiorari, and the order of the court was one dismissing the proceeding under the writ. The certiorari proceedings and the order dismissing the same were in an entirely separate and distinct matter entitled, whether properly or otherwise, “Louis Mazade v. Justice's Court of Goldfield Township, etc., and Marvin Arnold, Justice of the Peace Thereof.”

Section 5325, Revised Laws, provides:

“A judgment or order in a civil action, except when expressly made final by this act, may be reviewed as prescribed by this title, and not otherwise.”

Section 5330, Revised Laws, provides:

“An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same or some specific part thereof, and within three days thereafter serving a similar notice or copy thereof on the adverse party or his attorney. * * * The order of service is immaterial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal an undertaking be filed, or a ...


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