M. J. Scanlan and James Glynn, for Petitioner.
Harlan L. Heward and James T. Boyd, for Respondents.
By the Court, Ducker, J.:
This is an application for a peremptory writ of mandamus to compel one of the respondents, District Judge Thomas F. Moran, to proceed with the trial of a certain action appealed from the justice court to the district court in which said judge presides.
The petition shows that the respondent Scheeline Banking and Trust Company commenced an action against the petitioners in the justice's court of Reno township for the restitution of certain premises situated in the city of Reno, Nevada, let by said company to petitioners. Prior to the commencement of this action the Scheeline Banking and Trust Company served petitioners with a notice, of which the following is a copy:
Scheeline Banking and Trust Company.
Reno, Nevada, Feb. 27, 1919.
Mr. C. E. Roberts, No. 116 E. Commercial Row, Reno, NevadaDear Sir: Please take notice that on account of noise made by operating room at No. 116 E. Commercial Row as a billiard or pool room interfering with our
other tenants in same building, we cannot continue to rent room for occupancy as billiard or pool room after the 31st day of March, 1919. Please be governed accordingly.
Yours very truly, H. Lewers, Cashier.
A verdict and judgment were entered in the action in the justice's court in favor of the respondent company on the 16th day of July, 1919, and thereafter, on the 2d day of August, 1919, a notice of appeal was served by petitioners, and filed in said district court on the 5th day of August, 1919. On motion of the respondent Scheeline Banking and Trust Company, the appeal was dismissed by the district court. The ground of the ruling of the court below in dismissing the appeal was that notice thereof was not filed in the district court within ten days from the judgment rendered, in accordance with section 5601 of the Revised Laws of Nevada, concerning actions for unlawful detainer.
1. Petitioners contend that the action was not for unlawful detainer, but for possession and damages, and that, as the appeal was duly perfected within thirty days from the rendition of judgment in the justice's court, as provided by section 5788 of the Revised Laws, the ruling of the district court was error, which can be corrected by mandamus.
Counsel for respondents insist that the action of the district court in dismissing the appeal was a judicial act, within its jurisdiction conferred by the constitution, and, even if erroneous, cannot be remedied by mandamus. This contention is sustained by several decisions of this court, the latest of which is the case of Ex Parte Breckenridge, 34 Nev. 275, 118 Pac. 687, Ann. Cas. 1914b, 871; but these have all been expressly overruled by the decision in the case of Floyd v. District Court, 36 Nev. 349, 135 Pac. 922. It was there held that mandamus would lie to compel the district court to proceed with ...