By the Court,
McCarran, J.:
In this case judgment was rendered against the petitioners in the. justice court of Union township, Humboldt County, Nevada, for the sum of $300, and for the further, sum of $105.75, assessed as costs. Within the time prescribed by statute the petitioners filed and served notice of appeal to the District Court of the Sixth Judicial District, in and for Humboldt County, and on the same day, and after the filing and service of said notice of appeal; petitioners deposited with the justice of the peace the sum of $405.75 in gold coin.
This fact is evidenced by the minutes of the justice court as follows: "That heretofore, on the 11th day of September, 1911, defendants appeared herein by their attorney, R. Gilray, Esq., and filed herein notice of appeal in writing, and deposited with the justice of said court the sum of $405.75, the amount of the judgment appealed from including costs. J. T. Dunn, Justice of the Peace.”
Following this is the further entry of the justice of the peace, as follows: "Sept. 11th, Oastler v. Floyd. Notice of appeal filed by deft, and $405.75 paid into court in lieu of appeal bond. $2.00 appeal fees paid.”
Subsequent to this the justice of the peace deposited with the clerk of the district court a certified copy of his docket and the papers filed in the case, and also the sum of $405.75, deposited with him as hereinabove set .forth. The plaintiffs in the justice court moved the district court to dismiss the appeal on the ground that more than thirty days had elapsed since the judgment was made and rendered in the justice court, and that no undertaking [351]*351had been filed in said justice court in the sum of $100 for the payment of costs on appeal. The motion to dismiss was granted, and an order dismissing the appeal was entered. Petitioners ask that a writ of mandate issue out of this- court directing the district court to take cognizance and jurisdiction of the said case and try and determine the same on its merits.
To the petition filed herein a demurrer is interposed on the ground that the petition does not state facts sufficient to authorize a writ of mandate, for the. reason that it appears from the petition that respondent Judge French proceeded with the case, and decided that a certain sum of money deposited with the justice of the peace was made in lieu of the undertaking to stay proceedings, and that there was no undertaking or -deposit on appeal. Respondents in their demurrer- rely on former decisions of this court, and say: "Assuming that the action of the respondent judge was error, still it was within the exercise of jurisdiction, and mandamus will not' lie to review its action.” In support of their contention they cite: State, ex rel. Treadway, v. Wright, 4 Nev. 119; Andrews v. Cook, 28 Nev. 269; Breckenridge v. Lamb, 34 Nev. 275.
The primary question to be determined in this proceeding is: "Will mandamus lie to review the action of the district court and to compel the district court to proceed in a case in which that court has divested itself of jurisdiction by erroneously dismissing an appeal?. There is no controversy in this case respecting the facts, as set forth in the petition, and respondents in this matter rely entirely upon the doctrine, as previously announced by this court, that where the district court erroneously divests itself of jurisdiction to try a cause appealed from a justice-court, its action in-that respect is final and will not be disturbed. As early as 4 Nevada this court laid down the rule that where, in matters of this kind, the district court made an order disposing of a cause, no matter how erroneous it may have been, it could not be reviewed in this court. This principle has [352]*352been followed in all of the cases in which the matter has been presented, and in a recent decision (Andrews v. Cook, supra) this court approvingly quoted the language of Lewis, J., in the Treadway case, supra, and also the language of Hawley, J., in the case of Floral Springs W. Co. v. Rives, 14 Nev. 431. In the case of Breckenridge v. Lamb, 34 Nev. 275, this court again gave sanction to the rule in a statement to the effect that the action of the district court in dismissing a matter appealed from the justice court, even though erroneous, was final and not subject to review.
The rule laid down by this court in the several. cases heretofore referred to was concurred in by courts of last resort of other jurisdictions, and the Supreme Court of California, in the case of Buckley v. Superior Court of Fresno County, 96 Cal. 119, 31 Pac. 8, expressly overruled their former decisions relative to this matter, and by a divided court laid down the new rule to the effect that where the superior court had dismissed an appeal from a justice court, though erroneous, was nevertheless final, and a writ of review would not lie. This doctrine, however, as annunciated in the Buckley case, supra, was overruled in the case of Golden Gate Tile Co. v. Superior Court of California and City and County of San Francisco, et al., 159 Cal. 474, 114 Pac. 978, and in the case of Edwards, et al., v. Superior Court of Alameda County, 159 Cal. 710, 115 Pac. 649, and the rule set forth in the former decisions again annunciated.
1. In the case at bar the dismissal of the appeal was a refusual on the part of the court to give appellant a hearing in the case. In a case where the district court takes jurisdiction and acts, its acts will not be subject to review by a writ of mandate, but where such tribunal refuses to take jurisdiction at all, when by law it ought to do so, or where having obtained jurisdiction it refuses to proceed in its exercise, mandamus is the proper remedy.- Errors committed in the exercise of judicial discretion cannot be made the subject of review, nor can they be corrected by a writ of mandamus, but where a district court erroneously decides that it has no jurisdiction,- the writ of [353]*353mandamus is the proper remedy to compel that tribunal to do that which the law prescribes it should do — assume jurisdiction and proceed with the cause. (Hollon Parker, Petitioner, 131 U. S. 221, 9 Sup. Ct. 708, 33 L. Ed. 123.) The dismissal of a case is a. refusal on the part of the dismissing court to hear and determine the cause, and the party aggrieved in such a proceeding may properly invoke a writ of mandamus to compel the court to set the case and proceed to its determination. (Harrington v. Holler, 111 U. S. 796, 4 Sup. Ct. 697, 28 L. Ed. 602.) The right of a party litigant to a judgment of a court upon the merits of the matter litigated is the fundamental aim of the law. The object of courts primarily is that they should assume the function of legal and equitable arbiters and decide controversies upon their merits.
2. While it may be said that in cases of this character the lower court had jurisdiction to grant or deny a motion to dismiss, Uevertheless that court could not refuse to hear a matter upon its merits when it was regularly before' it for that purpose, nor could it divest itself of jurisdiction by an erroneous order any more than it could assume jurisdiction by arbitrarily saying that it had the right to proceed.
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By the Court,
McCarran, J.:
In this case judgment was rendered against the petitioners in the. justice court of Union township, Humboldt County, Nevada, for the sum of $300, and for the further, sum of $105.75, assessed as costs. Within the time prescribed by statute the petitioners filed and served notice of appeal to the District Court of the Sixth Judicial District, in and for Humboldt County, and on the same day, and after the filing and service of said notice of appeal; petitioners deposited with the justice of the peace the sum of $405.75 in gold coin.
This fact is evidenced by the minutes of the justice court as follows: "That heretofore, on the 11th day of September, 1911, defendants appeared herein by their attorney, R. Gilray, Esq., and filed herein notice of appeal in writing, and deposited with the justice of said court the sum of $405.75, the amount of the judgment appealed from including costs. J. T. Dunn, Justice of the Peace.”
Following this is the further entry of the justice of the peace, as follows: "Sept. 11th, Oastler v. Floyd. Notice of appeal filed by deft, and $405.75 paid into court in lieu of appeal bond. $2.00 appeal fees paid.”
Subsequent to this the justice of the peace deposited with the clerk of the district court a certified copy of his docket and the papers filed in the case, and also the sum of $405.75, deposited with him as hereinabove set .forth. The plaintiffs in the justice court moved the district court to dismiss the appeal on the ground that more than thirty days had elapsed since the judgment was made and rendered in the justice court, and that no undertaking [351]*351had been filed in said justice court in the sum of $100 for the payment of costs on appeal. The motion to dismiss was granted, and an order dismissing the appeal was entered. Petitioners ask that a writ of mandate issue out of this- court directing the district court to take cognizance and jurisdiction of the said case and try and determine the same on its merits.
To the petition filed herein a demurrer is interposed on the ground that the petition does not state facts sufficient to authorize a writ of mandate, for the. reason that it appears from the petition that respondent Judge French proceeded with the case, and decided that a certain sum of money deposited with the justice of the peace was made in lieu of the undertaking to stay proceedings, and that there was no undertaking or -deposit on appeal. Respondents in their demurrer- rely on former decisions of this court, and say: "Assuming that the action of the respondent judge was error, still it was within the exercise of jurisdiction, and mandamus will not' lie to review its action.” In support of their contention they cite: State, ex rel. Treadway, v. Wright, 4 Nev. 119; Andrews v. Cook, 28 Nev. 269; Breckenridge v. Lamb, 34 Nev. 275.
The primary question to be determined in this proceeding is: "Will mandamus lie to review the action of the district court and to compel the district court to proceed in a case in which that court has divested itself of jurisdiction by erroneously dismissing an appeal?. There is no controversy in this case respecting the facts, as set forth in the petition, and respondents in this matter rely entirely upon the doctrine, as previously announced by this court, that where the district court erroneously divests itself of jurisdiction to try a cause appealed from a justice-court, its action in-that respect is final and will not be disturbed. As early as 4 Nevada this court laid down the rule that where, in matters of this kind, the district court made an order disposing of a cause, no matter how erroneous it may have been, it could not be reviewed in this court. This principle has [352]*352been followed in all of the cases in which the matter has been presented, and in a recent decision (Andrews v. Cook, supra) this court approvingly quoted the language of Lewis, J., in the Treadway case, supra, and also the language of Hawley, J., in the case of Floral Springs W. Co. v. Rives, 14 Nev. 431. In the case of Breckenridge v. Lamb, 34 Nev. 275, this court again gave sanction to the rule in a statement to the effect that the action of the district court in dismissing a matter appealed from the justice court, even though erroneous, was final and not subject to review.
The rule laid down by this court in the several. cases heretofore referred to was concurred in by courts of last resort of other jurisdictions, and the Supreme Court of California, in the case of Buckley v. Superior Court of Fresno County, 96 Cal. 119, 31 Pac. 8, expressly overruled their former decisions relative to this matter, and by a divided court laid down the new rule to the effect that where the superior court had dismissed an appeal from a justice court, though erroneous, was nevertheless final, and a writ of review would not lie. This doctrine, however, as annunciated in the Buckley case, supra, was overruled in the case of Golden Gate Tile Co. v. Superior Court of California and City and County of San Francisco, et al., 159 Cal. 474, 114 Pac. 978, and in the case of Edwards, et al., v. Superior Court of Alameda County, 159 Cal. 710, 115 Pac. 649, and the rule set forth in the former decisions again annunciated.
1. In the case at bar the dismissal of the appeal was a refusual on the part of the court to give appellant a hearing in the case. In a case where the district court takes jurisdiction and acts, its acts will not be subject to review by a writ of mandate, but where such tribunal refuses to take jurisdiction at all, when by law it ought to do so, or where having obtained jurisdiction it refuses to proceed in its exercise, mandamus is the proper remedy.- Errors committed in the exercise of judicial discretion cannot be made the subject of review, nor can they be corrected by a writ of mandamus, but where a district court erroneously decides that it has no jurisdiction,- the writ of [353]*353mandamus is the proper remedy to compel that tribunal to do that which the law prescribes it should do — assume jurisdiction and proceed with the cause. (Hollon Parker, Petitioner, 131 U. S. 221, 9 Sup. Ct. 708, 33 L. Ed. 123.) The dismissal of a case is a. refusal on the part of the dismissing court to hear and determine the cause, and the party aggrieved in such a proceeding may properly invoke a writ of mandamus to compel the court to set the case and proceed to its determination. (Harrington v. Holler, 111 U. S. 796, 4 Sup. Ct. 697, 28 L. Ed. 602.) The right of a party litigant to a judgment of a court upon the merits of the matter litigated is the fundamental aim of the law. The object of courts primarily is that they should assume the function of legal and equitable arbiters and decide controversies upon their merits.
2. While it may be said that in cases of this character the lower court had jurisdiction to grant or deny a motion to dismiss, Uevertheless that court could not refuse to hear a matter upon its merits when it was regularly before' it for that purpose, nor could it divest itself of jurisdiction by an erroneous order any more than it could assume jurisdiction by arbitrarily saying that it had the right to proceed. The rule has been approvingly stated to the effect that where an inferior court refuses to entertain jurisdiction on a matter preliminary to a hearing on the merits, the writ of mandamus may be resorted to for the purpose of requiring the court to proceed. (Brown v. Min. Co., 105 Mich. 653, 63 N. W. 1000; Castello v. St. Louis Circuit Court, 28 Mo. 259.)
Mr. Bailey, in his treatise on the Law of Special Remedies, dwelling upon the subject of Mandamus and referring to the rule as stated above, says: "I observe that it has been contended by some judges and law-writers that this rule (if it be a rule) extends to embrace erroneous construction of some question of law or of practice which is preliminary to the whole case. If it were confined to questions relating to the power or jurisdiction of the court, then there is abundant authority for the position assumed. If, on the other hand, it is intended to assert that the rule embraces all cases where [354]*354the court refuses to proceed to the merits, .then I should very much doubt the application of any such rule. Courts often err in determining questions of law or practice upon demurrer or motion, whereby the merits of an action are not reached, and the party has an adequate remedy by appeal or writ of error. If mandamus would lie, it certainly would transform that writ into a writ of error. ” (Bailey on Habeas Corpus, vol.' 2, p. 883.) ■ .
It has been well stated, in substance, that, although a writ of mandamus is not a means by which the- manner of conducting proceedings, the rulings of a court upon questions of evidence, or jurisdictional matters involving the merits can be reviewed, its scope, however, embraces the right of the reviewing court to compel an inferior tribunal to proceed in a case where, by an erroneous ruling, it has divested itself of jurisdiction. (Golden Gate Tile Co. v. Superior Court of California and City and County of San Francisco, et al., 159 Cal. 474, 114 Pac. 978.)
The jurisdiction of the district courts of the State of Nevada is prescribed by section 6, article 6, of the constitution of the state, which is in part as follows: "They shall, also, have final appellate jurisdiction in cases arising in justices’ courts and such other inferior tribunals as may be established by law.” This constitutional grant of jurisdiction is also a prescription that the district court must assume final appellate jurisdiction in cases arising in a justice court, and hence it is the duty which the district court cannot either refuse or- divest itself of, and when the record in a case discloses that the cause should be heard on its-merits, the dismissal of the appeal is a refusal on the part of the court to entertain the cause, and such refusal is properly the subject for the issuance of a writ of mandamus. (Levy v. Superior Court, 66 Cal. 292, 5 Pac. 353; State v. District Court, 13 Mont. 370, 34 Pac. 298; Bailey on Habeas Corpus, vol. 2, p. 893.)
As was said by Judge Beatty, speaking for the Supreme Court of California in the case of Edwards, et al., v. Superior Court, 159 Cal. 710, 115 Pac. 650, when according [355]*355to the uncontroverted facts it' appears' that an appeal to the district court has been duly perfected and diligently prosecuted, a dismissal of such appeal is in fact nothing more nor less than an attempted abdication of the jurisdiction which the court is bound in every proper case to exercise. In other words, it is a refusal to decide a cause which it is a plain statutory duty of the court to decide, the remedy for which' dereliction is the writ of mandate.
The Supreme Court of Utah, in touching upon the subject, annunciated the doctrine in substance that, where an appeal was properly taken and the requirements of the statute complied with, and the court failed to exercise the jurisdiction conferred upon it by virtue of the appeal- and refused to proceed with the trial, the plaintiff's remedy was by mandamus. (Hansen v. Anderson, et al., 21 Utah, 286, 61 Pac. 219.)
The rule applicable to the issuance of a writ of mandamus, in matters of this character, as first asserted in the case of Treadway v. Wright, 4 Nev. 119, and subsequently adhered to in several decisions by this court, is, to say the least, a harsh one, and to our mind fails to carry out the spirit of the law. Summed down to a nicety, it means that the action of the district court in dismissing an appeal from the justice court, regardless of how glaring the error may be, is without the scope of review and beyond the power of relief by a higher tribunal.
It is in the justice court that the small controversies of the business world are litigated. It has been termed with more or less propriety "the poor man’s court,” and our legislature in enacting its earlier laws recognized this as being generally true, and made ■ the forms of pleadings and rules of practice much more simple than in other courts. ■ - -
To say. that a justice court litigant, desirous of presenting his cause to the district court and being denied that privilege by a ruling of that court,- which ruling is manifestly [356]*356and palpably erroneous, cannot be relieved of the effects of that error by the mandate of this court is to our mind so harsh as to be without the pale of the true intendment of the law. It is our judgment that the better rule is that as stated by the Supreme Court of California in the case of Golden Gate Tile Co. v. Superior Court, supra, and approved in the case of Edwards v. Superior Court of Alameda County, 159 Cal. 710, 115 Pac. 649; the same rule being followed in the cases of State v. District Court, 13 Mont. 370, 34 Pac. 298, and Hansen v. Anderson, 21 Utah, 286, 61 Pac. 219.
It follows from the foregoing reasoning that the rule heretofore announced by this court, having its inception in the case of State, ex rel. Treadway, v. Wright, and adhered to in all cases down to and including Ex Parte Breckenridge, 34 Nev. 275, should be, and they are hereby, expressly overruled.
3. Having determined that this court is invested with jurisdiction to compel, by writ of mandamus, the district court to proceed in a case where it has refused to take jurisdiction, or where, by an erroneous ruling, it has divested itself of jurisdiction, we now come to the remaining question for our consideration in this case, viz: Did the district court erroneously divest itself of jurisdiction by sustaining the motion to dismiss the appeal ?
Section 3679 of the Statutes of Nevada, applicable at the time at which this appeal was taken (Cutting’s Compilation), is as follows:
"An appeal from a justice’s court shall not be effectual for any purpose unless an undertaking be filed, within five days after filing the notice of appeal, with two or more sureties, in the sum of one hundred dollars, in gold coin of the United States, for the payment of the costs on the appeal, or if a stay of proceedings be claimed, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money, or twice the value of the property, including costs, when the judgment is for the recovery of specific [357]*357personal property, and shall be to the effect, when the action is for the recovery of money, that the appellant will pay the amount of the judgment appealed from, and all costs, if the appeal be withdrawn or dismissed, or the amount of any judgment, and all costs that may be recovered against him in said action in the district court. * * * A deposit of the amount of judgment appealed from, including all costs, or of the value of the property, and all costs, in actions for the recovery of specific personal property, with the justice, shall be equivalent to the filing of the undertaking in this section mentioned.”
■ It will be observed that in this case counsel for petitioners sought to avail themselves of the latter part of section 3679, set forth above, and under the provisions of that section they deposited, as appears from the record, a sum amounting to the judgment appealed from, including all costs. This the statute provides is equivalent to the filing of an undertaking, mentioned in the first part of the section.
The learned judge of the lower court in dismissing the appeal took the position that the deposit could only serve the purpose to take the place of an undertaking to stay proceedings, and that the deposit could not be taken in lieu of an undertaking for costs on appeal. It is our judgment that the section referred to will not admit of the construction placed upon it by respondent. The language of the statute is plain and obvious; moreover, in our judgment, it is free from ambiguity. By this statute one undertaking, and only one, is contemplated to make an appeal effectual to the extent of giving the district court jurisdiction, and a deposit as provided for in the latter part of the section may be made in lieu of such undertaking, i. e., it is optional with the appellant in taking his appeal to either file an undertaking, as provided for by the first part of section 3679, or make a deposit, as provided for by the latter part of the same section. When a litigant, with the view of perfecting an appeal from the justice court, deposits with the justice [358]*358of the peace.a sum of money equal to the amount of the judgment appealed from, including all costs, this act on his part is equivalent to the filing of the undertaking, mentioned in the first part of. the section, to make the appeal effectual.
The docket entry and minutes of the justice of the peace recite that the deposit was made " in lieu of appeal bond.” In the case of State v. Brown, 30 Nev. 500, this court in passing upon the sufficiency of an undertaking said: .'.'Whether or not it was the intention of the defendant by this undertaking to procure a stay of proceedings is immaterial so far as the proceeding in this court is concerned. If it is. good as an undertaking to pay the costs on the appeal, it. is sufficient to clothe the district court with jurisdiction, whether it is sufficient to accomplish any other purpose or not. * * * As the undertaking does not express a condition that it is given to stay proceedings, it would be unwarranted to read such a condition into the-bond when so to do would destroy its effect.” . - .
The question of the.stay of proceedings is ,not before us at this time, and - it is not necessary for us to dwell upon that phase -of the statute. (Hansen v. Anderson, 21 Utah, 286, 61 Pac. 219; Edwards v. Superior Court of Alameda County, 159 Cal. 710, 115 Pac. 649; State v. Brown, 30 Nev. 495.)
From the. foregoing it follows that the district court, and Judge L. N. French presiding, erroneously divested itself of jurisdiction., and the writ prayed for should issue, and it is therefore ordered that a peremptory writ issue out of this court, directing the Sixth Judicial District Court of the State of Nevada and Judge L. N. French, presiding in, this case, to take, cognizance and jurisdiction- of said cause, and to proceed to try and determine the same on its merits.
Talbot, C. J.: I concur.