Certiorari by the State, on the relation of the Allen Clark Company, a corporation, against Thomas F. Moran, District Judge of the Second Judicial District Court, in and for the County of Washoe, and the Second Judicial District Court in and for the County of Washoe. Writ dismissed.
O. H. Mack, for Petitioner.
Charles H. Burritt, for Respondents.
By the Court, Sanders, J.:
The Allen Clark Company, a corporation, sued out of this court in 1917 a writ of certiorari. Upon consideration of the case on its merits, this court discharged the writ and dismissed the proceeding, on the ground that the tribunal whose judgment was sought to be reviewed was not made a party defendant. State v. Pacific Wall Paper and Paint Co., 41 Nev. 501, 172 Pac. 380.
The relator who prosecuted the writ, apparently in conformity to the suggestion found in the opinion concurring in the order of dismissal, sued out this writ in June, 1918, basing its application for the writ on the same facts as contained in its former proceeding. 41 Nev. 501, 172 Pac. 380.
1. The main question to be determined is whether a justice court, in an action brought primarily to enforce a mechanic's lien, exceeded its jurisdiction in rendering a judgment in personam against the defendant in the action. Since the issuance of the writ in this case, this court, in the case of State ex rel. Abel v. Breen, 41 Nev. 516, 173 Pac. 555, decided the question adversely to the contention of the relator, and held that:
In view of Rev. Laws, 2226, providing that the mechanic's lien statutes shall not affect the right to a personal judgment, in an action brought to enforce a mechanic's lien, a personal judgment may be rendered against a person personally liable if the complaint contains all necessary facts constituting both grounds of relief, and all the necessary allegations of an action in assumpsit.
Upon examination of the pleadings in the justice court, we are led to the conclusion that the complaints
therein state a cause of action in assumpsit against the defendant, and therefore the justice court, in the exercise of its original jurisdiction, was authorized to render a judgment in personam against the defendant. Neither did the district court, in the exercise of its derivative jurisdiction on appeal, exceed its jurisdiction in affirming such judgment.
2. In reference to the question of costs imposed by the district court, it was a matter for the court to consider. If the court erred in affirming the judgment for costs, it was an irregularity, and not an excess of jurisdiction. Its action in this respect cannot be reviewed on certiorari. State v. District Court, 16 Nev. 76; State v. District Court, 23 Nev. 246, 45 Pac. 467.
The writ must be dismissed, with costs.
Ducker, J., did not participate in the consideration of the case, it having been submitted before he ...