Original Proceeding in certiorari by the State, on the relation of R. H. Jones and another, against William Bonner, Justice of the Peace. Judgment set aside. Rehearing denied.
R. L. Waggoner, for Petitioners.
H. Pilkington, for Respondent.
By the Court, Coleman, C. J.:
This is an original proceeding in certiorari to inquire into the jurisdiction of the justice of the peace of Spragg Township, Lyon County, to render a certain judgment in favor of Mrs. J. Bean and against R. H. Jones and Jane Doe Jones, his wife. The record of the justice of the peace relative to the case, as certified to this court, is as follows:
Complaint filed; summons issued; affidavit for attachment filed; undertaking for attachment filed; writ of attachment issued; affidavit for arrest filed; undertaking for arrest filed; order of arrest indorsed in summons; docketing case; judgment entered in the above-entitled case for plaintiff for amount prayed for in the sum of $30 and attorney fee of $15, and costs of this action taxed to defendant. E. A. Blanchard, Acting Judge.
Section 5732 of the Revised Laws of 1912, as amended (Stats. 1913, p. 360), provides how and by whom a summons may be served, and also makes provision for the return showing service thereof. It will be seen from a perusal of the record of the justice of the peace that, so far as appears therefrom, no service of summons had been made upon either of the defendants at the time the judgment was rendered, nor is there in the files sent up by the justice of the peace the original summons showing service thereof; nor does the record show that the defendants appeared in the action. It is an ancient rule that nothing is presumed in favor of the jurisdiction of courts of limited jurisdiction. That such a court has jurisdiction must affirmatively appear; and, unless it does so appear, judgment by such a court is void for want of jurisdiction. This is not a new question in this state. It was before the court in 1866, and the court then held that such a judgment as is here involved was void, as the court was without jurisdiction. McDonald v. Prescott & Clark, 2 Nev. 109, 90 Am. Dec. 517. It would be a waste of time to enlarge upon this point. See, also, 16 R. C. L. 367; 24 Cyc. 497.
We may say that there are different affidavits on file in this court to the effect that the summons was in fact served. These we cannot consider. This case shows the importance of attorneys giving their personal attention to the preparing of and superintending the making of returns in suits in justices' courts. In this proceeding counsel for petitioners admit the indebtedness. It may be that the officer who made the service of the summonsif in fact any was madecan now make his return showing service of summons, thereby giving the justice of the peace jurisdiction to proceed. But as to this we express no opinion.
It not appearing from the record and files of the case mentioned that the justice of the peace had jurisdiction to consider the same, it is ordered that the judgment rendered in said justice's court in favor of Mrs. J. Bean and against R. H. Jones and Jane Doe Jones, his wife, be, and the same is hereby, declared null and void, and is hereby set aside, and that relators have and recover their costs.
On Petition for Rehearing