Respondent never required jurisdiction either over the defendants nor the subject matter of the action. Our statutes specifically cover the venue or place of trial of actions before justices of the peace. Sec. 5715, Rev. Laws, 1912. There is no allegation in the complaint that defendants reside in Eureka township, nor any allegation as to where defendants reside, nor is there any allegation that the land on which defendants' sheep are alleged to have trespassed is in Eureka township. The complaint totally fails to allege sufficient facts to give the justice's court of Eureka township jurisdiction to try the cause of action. The return on the summons does not supply or remedy the defects of the complaint; it shows the same to have been served on defendant Camino at Austin, Lander County. From the earliest decisions of this honorable court it has been stated as the rule of law that nothing is presumed in
favor of the jurisdiction of inferior courts, and that it must appear from what is set forth in the record that the court had jurisdiction. Mallett v. Uncle Sam Mining Co., 1-2 Nev. 156, at 162-163; McDonald v. Prescott Clark, 1-2 Nev. at 630; Little v. Currie, 5 Nev. 90; Roy v. Whitford, 9 Nev. 370; Victor Mill
Mining Co. v. J. Ct. Township 18, Esmeralda Co., 18 Nev. 21, at 23; Wong Kee v. Lillis, 37 Nev. 5; State ex rel. Abel v. Breen,41 Nev. 516; State ex rel. Jones v. Bonner, 43 Nev. 95; State ex rel. Martin v. Justice Court, 44 Nev. 140; State ex rel. Thatcher v. Justice Court, 46 Nev. 133; Ex Rel. Levy Zentner Co. v. Justice Court, 48 Nev. 425.
Respondent erred in entering default and judgment subsequent to the filing of defendants' special appearance and motion, instead of certifying the action to the district court because of questions of boundaries to land being involved. Sec. 8, art. VI, Constitution of Nevada, sec. 323 Rev. Laws; sec. 5721 Rev. Laws, 1912; Fitchett v. Henley, 31 Nev. 326; Brancroft v. Pike, 33 Nev. 80; Tull v. Anderson, 15 Nev. 426; In Re Dixon, 40 Nev. 228; Tobin v. Gartiez, 44 Nev. 179.
The respondent exceeded his jurisdiction in ordering that judgment be entered against said defendants in accordance with the prayer of plaintiff's complaint on file in said justice's court, on application of the attorney for plaintiff. It does not appear from the copy of the judgment that any evidence whatsoever was submitted to substantiate plaintiff's claim for damages as alleged in the complaint, as required by subdivision 2 of sec. 5754, Rev. Laws, 1912. Fitchett v. Henley, 31 Nev. 326, at 340-341; Forsyth v. Chambers, J.P., 30 Nev. 337.
Sec. 5754 of the justice court practice act compares with sec. 5236 of the district court practice act. The only Nevada decision discovered wherein either of these two sections has been discussed is that of Ballard v. Purcell, 1 Nev. 342, 1-2 Nev. 290, at 292. See, also, Ruth v. Smith (Colo.), 68 P. 278; Crossman v. Vivienda Water Co. (Cal.), 69 P. 220; St. Louis
S.F.R. Co. v.
Zumwalt (Okla.), 120 P. 640; Hurd v. Ford (Utah), 276 P. 908; Schroeder v. Wittram, 6 P. 737; 6 Enc. of Pleading and Practice, 112, 114, 132.
"All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this act." Rev. Laws, 1912, sec. 5036. The only pleadings on the part of the plaintiff and the defendant are those fixed by statute. Stats. 1929, p. 9. The code requires the defendants either to demur or answer, and in their answer they are allowed to set up as many defenses as they may have. It is well settled in states having a code procedure like ours that the defendant only has two pleadings, a demurrer to the complaint and an answer. McKim v. District Court, 33 Nev. 52; Sutherland on Code Pleadings, vol. 1, sec. 459.
The document styled a "motion" is not a part of our code procedure and does not tender an issue between the parties, plaintiff and defendants, as to whether or not the court had jurisdiction; this could only be raised by demurrer or answer. Symons-Kraussman Co. v. Reno W.L. Co., 32 Nev. 241.
A justice of the peace cannot certify a case to the district court on the ground that title to real estate is involved unless it appears by the verified answer or on plaintiff's own showing that such title is involved. State ex rel. Launiza v. Justice Court, 29 Nev. 191, 198.
In this case we do not contend that the answer must be verified, but we do contend that an answer or a demurrer should have been filed, instead of a "motion."
OPINION
This is an original proceeding in certiorari. The facts in brief are these:
On July 12, 1929, Martin Ferguson filed his verified
complaint in the justice's court of Eureka township for Eureka County against Mike Camino and John Yturbide to recover judgment for $200 actual damages, $100 exemplary damages, and, in addition thereto, the sum of $200 attorneys' fees, for an alleged trespass by defendants' sheep upon the land of plaintiff, situate in Eureka County, whereby the grass, herbage, and browse thereon was consumed and destroyed. Summons was duly issued and served personally upon the defendant Camino in Lander County by the sheriff of that county. On July 27, 1929, the defendants appeared specially and filed a motion to dismiss the action upon the ground that the court had no jurisdiction over the persons of defendants and of the subject matter, in that the summons was served upon defendants in Lander County and that the land upon which the defendants' sheep are alleged to have trespassed is situate in Lander County and not Eureka County. The motion to dismiss was not set for hearing, and, while pending and undisposed of, on, to wit, August 7, 1929, on motion of the attorney for plaintiff, defendants' default for failure to appear and answer the complaint within the time prescribed by law was entered. On the same day, on motion of said attorney, the following judgment was entered:
"In this action the defendant, Mike Camino, and John Yturbide, having been served with process, and having failed to appear and answer the plaintiff's complaint filed herein, and the legal time for answering having expired, and no answer or demurrer having been filed, the default of said defendants, Mike Camino, and John Yturbide, in the premises having been duly entered according to law;
"Now, at this day, on application of Edgar Eather, attorney for said plaintiff, it is hereby ordered that judgment be entered herein against the said defendants, in accordance with the prayer of said plaintiff's complaint on file herein.
"Wherefore, by reason of the law and the premises aforesaid, it is ordered, adjudged, and decreed, that
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Respondent never required jurisdiction either over the defendants nor the subject matter of the action. Our statutes specifically cover the venue or place of trial of actions before justices of the peace. Sec. 5715, Rev. Laws, 1912. There is no allegation in the complaint that defendants reside in Eureka township, nor any allegation as to where defendants reside, nor is there any allegation that the land on which defendants' sheep are alleged to have trespassed is in Eureka township. The complaint totally fails to allege sufficient facts to give the justice's court of Eureka township jurisdiction to try the cause of action. The return on the summons does not supply or remedy the defects of the complaint; it shows the same to have been served on defendant Camino at Austin, Lander County. From the earliest decisions of this honorable court it has been stated as the rule of law that nothing is presumed in
favor of the jurisdiction of inferior courts, and that it must appear from what is set forth in the record that the court had jurisdiction. Mallett v. Uncle Sam Mining Co., 1-2 Nev. 156, at 162-163; McDonald v. Prescott Clark, 1-2 Nev. at 630; Little v. Currie, 5 Nev. 90; Roy v. Whitford, 9 Nev. 370; Victor Mill
Mining Co. v. J. Ct. Township 18, Esmeralda Co., 18 Nev. 21, at 23; Wong Kee v. Lillis, 37 Nev. 5; State ex rel. Abel v. Breen,41 Nev. 516; State ex rel. Jones v. Bonner, 43 Nev. 95; State ex rel. Martin v. Justice Court, 44 Nev. 140; State ex rel. Thatcher v. Justice Court, 46 Nev. 133; Ex Rel. Levy Zentner Co. v. Justice Court, 48 Nev. 425.
Respondent erred in entering default and judgment subsequent to the filing of defendants' special appearance and motion, instead of certifying the action to the district court because of questions of boundaries to land being involved. Sec. 8, art. VI, Constitution of Nevada, sec. 323 Rev. Laws; sec. 5721 Rev. Laws, 1912; Fitchett v. Henley, 31 Nev. 326; Brancroft v. Pike, 33 Nev. 80; Tull v. Anderson, 15 Nev. 426; In Re Dixon, 40 Nev. 228; Tobin v. Gartiez, 44 Nev. 179.
The respondent exceeded his jurisdiction in ordering that judgment be entered against said defendants in accordance with the prayer of plaintiff's complaint on file in said justice's court, on application of the attorney for plaintiff. It does not appear from the copy of the judgment that any evidence whatsoever was submitted to substantiate plaintiff's claim for damages as alleged in the complaint, as required by subdivision 2 of sec. 5754, Rev. Laws, 1912. Fitchett v. Henley, 31 Nev. 326, at 340-341; Forsyth v. Chambers, J.P., 30 Nev. 337.
Sec. 5754 of the justice court practice act compares with sec. 5236 of the district court practice act. The only Nevada decision discovered wherein either of these two sections has been discussed is that of Ballard v. Purcell, 1 Nev. 342, 1-2 Nev. 290, at 292. See, also, Ruth v. Smith (Colo.), 68 P. 278; Crossman v. Vivienda Water Co. (Cal.), 69 P. 220; St. Louis
S.F.R. Co. v.
Zumwalt (Okla.), 120 P. 640; Hurd v. Ford (Utah), 276 P. 908; Schroeder v. Wittram, 6 P. 737; 6 Enc. of Pleading and Practice, 112, 114, 132.
"All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this act." Rev. Laws, 1912, sec. 5036. The only pleadings on the part of the plaintiff and the defendant are those fixed by statute. Stats. 1929, p. 9. The code requires the defendants either to demur or answer, and in their answer they are allowed to set up as many defenses as they may have. It is well settled in states having a code procedure like ours that the defendant only has two pleadings, a demurrer to the complaint and an answer. McKim v. District Court, 33 Nev. 52; Sutherland on Code Pleadings, vol. 1, sec. 459.
The document styled a "motion" is not a part of our code procedure and does not tender an issue between the parties, plaintiff and defendants, as to whether or not the court had jurisdiction; this could only be raised by demurrer or answer. Symons-Kraussman Co. v. Reno W.L. Co., 32 Nev. 241.
A justice of the peace cannot certify a case to the district court on the ground that title to real estate is involved unless it appears by the verified answer or on plaintiff's own showing that such title is involved. State ex rel. Launiza v. Justice Court, 29 Nev. 191, 198.
In this case we do not contend that the answer must be verified, but we do contend that an answer or a demurrer should have been filed, instead of a "motion."
OPINION
This is an original proceeding in certiorari. The facts in brief are these:
On July 12, 1929, Martin Ferguson filed his verified
complaint in the justice's court of Eureka township for Eureka County against Mike Camino and John Yturbide to recover judgment for $200 actual damages, $100 exemplary damages, and, in addition thereto, the sum of $200 attorneys' fees, for an alleged trespass by defendants' sheep upon the land of plaintiff, situate in Eureka County, whereby the grass, herbage, and browse thereon was consumed and destroyed. Summons was duly issued and served personally upon the defendant Camino in Lander County by the sheriff of that county. On July 27, 1929, the defendants appeared specially and filed a motion to dismiss the action upon the ground that the court had no jurisdiction over the persons of defendants and of the subject matter, in that the summons was served upon defendants in Lander County and that the land upon which the defendants' sheep are alleged to have trespassed is situate in Lander County and not Eureka County. The motion to dismiss was not set for hearing, and, while pending and undisposed of, on, to wit, August 7, 1929, on motion of the attorney for plaintiff, defendants' default for failure to appear and answer the complaint within the time prescribed by law was entered. On the same day, on motion of said attorney, the following judgment was entered:
"In this action the defendant, Mike Camino, and John Yturbide, having been served with process, and having failed to appear and answer the plaintiff's complaint filed herein, and the legal time for answering having expired, and no answer or demurrer having been filed, the default of said defendants, Mike Camino, and John Yturbide, in the premises having been duly entered according to law;
"Now, at this day, on application of Edgar Eather, attorney for said plaintiff, it is hereby ordered that judgment be entered herein against the said defendants, in accordance with the prayer of said plaintiff's complaint on file herein.
"Wherefore, by reason of the law and the premises aforesaid, it is ordered, adjudged, and decreed, that
Martin Ferguson, plaintiff, do have and recover of and from the said defendants, Mike Camino and John Yturbide, the sum of $300.00 in U.S. lawful money, with interest thereon at the rate of 7 per cent annum from the date hereof until paid; together with attorneys fee in the sum of $200.00, and his costs and disbursements incurred in said action, amounting to the sum of $7.00."
On August 29, 1929, Howard E. Browne, attorney for defendants, filed in this court an affidavit praying a writ of certiorari to review the record and proceedings leading up to and including said judgment, and praying that it be annulled. The matter is now before us upon the affidavit and return made to the writ.
It is insisted in argument that the court had no jurisdiction over the persons of defendants, for the reason that the summons was served upon them in Lander County. The conclusive answer to this contention is that the statute which specifies the actions and proceedings over which justices' courts shall have jurisdiction provides that the summons may be served outside of the county in which the action is brought. Stats. 1913, p. 359.
1, 2. It is contended that the respondent court was without jurisdiction over the subject matter, in that and for the reason that it appears from the motion to dismiss that the land upon which the trespass complained of was committed is situate in Lander County and not Eureka County. It is evident that the attorney for defendants was mistaken in considering the motion to be a proper pleading to oust the court of jurisdiction of the subject matter of the action. As section 793 of our civil practice act (Revised Laws, sec. 5736) prescribes the pleadings on the part of plaintiff and of defendant in justice court cases, it is needless to add that the objection for want of jurisdiction over the subject matter could only be raised by demurrer or answer. The document styled "a motion" for the purpose it was intended to serve had no legal standing. Therefore the respondent court did not exceed its
jurisdiction in entering defendants' default for failure to answer the complaint within the time prescribed by law. Symons-Kraussman Co. v. Liquor Co., 32 Nev. 241, 107 P. 96.
It is contended that the respondent court exceeded its jurisdiction in rendering judgment for damages, without offer of any proof as to the amount of the damages. The question most troublesome is whether the error is one which may be taken advantage of by certiorari.
3. Justices' courts have peculiar and limited jurisdiction. The powers conferred upon them by a statute must be strictly pursued. Jones v. Justice's Court, 97 Cal. 523, 32 P. 575. They must proceed in the mode provided by the statute. Hillyer's Justices' Code (2d ed.), p. 76.
Section 812 of the civil practice act (Revised Laws, sec. 5754) provides as follows:
"If the defendant fails to appear, and to answer or demur within the time specified in the summons, then, upon proof of service of summons, the following proceedings must be had:
"1. If the action is based upon a contract, and is for the recovery of money, or damages only, the court must render judgment in favor of the plaintiff for the sum specified in the summons.
"2. In all other actions the court must hear the evidence offered by the plaintiff and must render judgment in his favor for such sum (not exceeding the amount stated in the summons) as appears by such evidence to be just."
By the enactment of subdivision 2 of the section quoted, it is manifest that it was the intention of the legislature to prohibit justices of the peace from rendering judgment by default for unliquidated damages without proof of the amount of the damages. When the default judgment is taken, the statute makes it the imperative duty of plaintiff to offer evidence, and the justice to render judgment for such damages as the evidence shows to be just.
4, 5. In this case the judgment seems to have been based upon an erroneous notion that, by failure to answer the complaint within the time prescribed by law, the defendants admitted its averments. The default of the defendants established the plaintiff's right of action, but by no means the amount of the damages. Hevener v. Kerr, 4 N.J. Law, 58. These must be ascertained and assessed upon lawful evidence before the court is authorized to render judgment. It appearing from the return to the writ that the respondent court, in violation of the statute, rendered judgment without any proof of damages, it follows that the judgment as entered must be annulled.
In order that there may be no misunderstanding, we repeat that the act of the respondent court in entering the default of defendants for failure to answer the complaint was not in excess of jurisdiction, but that the judgment for damages without any proof as to the amount of damages was in excess of jurisdiction, and for this reason only the judgment is annulled.
It is so ordered.