By the Court,
Norcross, J.:
Upon petition for a rehearing, counsel for respondents raise, for the first time, the question of the jurisdiction of this court to consider and determine the appeal. Want of jurisdiction is urged upon the ground that the judgment entered in the court below was not a final judgment, and therefore an appeal therefrom would not lie.
This court has repeatedly held that questions raised for the first time on petition for rehearing will not be considered. (Kirman v. Johnson, 30 Nev. 154; Brandon v. West, 29 Nev. 135; Powell v. N. C. O. Ry., 28 Nev. 305, 343; Beck v. Thompson, 22 Nev. 419.)
While it is a general rule that a jurisdictional question may be raised at any time, it is also settled in this court that a party may, by his conduct, become estopped to raise such a question. A party in an appellate court who has treated the judgment as final and asked that the same be affirmed or reversed will not be heard after-wards, when the decision has gone against him, to contend that the judgment was not final and the court therefore without jurisdiction to determine the questions presented on the appeal.
In Costello v. Scott, 30 Nev. 88, a case where the finality of the judgment was questioned for the first time on petition for a rehearing, we-said:. "Even if there was room for argument as to whether the judgment rendered in this cause was a final judgment, appellants, by treating it as such and appealing therefrom, are estopped to deny the finality of the decree” — citing State v. Commissioners, 22 Nev. 78.
In State v. Commissioners, supra, this court said: "Lander County treated it as a final judgment when it appealed from it to this court, and we entertained the [324] appeal and decided the case upon its merits. Having treated the entry as a judgment decisive of the merits of the case, and having taken and received the benefit of a remedy which it was otherwise not entitled to, we think that Lander County, and consequently the defendants, as its representatives, should now be estopped to claim that no final judgment has been entered in the action. In Bigelow on Estoppel, p. 601, the author says: 'It may accordingly be laid down as a broad proposition that one who has taken a particular position in the course of a litigation must, while that position remains unretracted, act consistently with it. ’ * * * In Clark v. Dunman, 46 Cal. 204, the court said: 'The only point to be decided under the agreed statement is whether the decree of August 20, 1869, is a final money judgment in the sense of the statute, and therefore bore interest. The plaintiff in this action treated the decree as final when he prosecuted an appeal from it. If it was not final his appeal should have been dismissed on that ground. But we entertained the appeal and decided the cause, and in justice the plaintiff should now be estopped to deny the finality of the decree.’ ”
In Brandon v. West, supra, we said: "There was no motion made to dismiss the appeal from the judgment because of any alleged defect therein, nor was the sufficiency or regularity of the appeal questioned upon the presentation of the cause. The case was briefed, argued, and presented as though the appeal was entirely regular. Its sufficiency, therefore, cannot now be questioned upon petition for rehearing. ”
In Taylor v. Crook, 136 Ala. 354, 34 South. 905, 96 Am. St. Rep. 26, it was held that one who induces the dismissal of an appeal on the ground that the decree is not final cannot afterward claim as against a bill of review that it was final. See, also, Ohio and Mississippi Railroad Co. v. Heaton, 137 Ind. 14, 35 N. E. 687.
In Silver Peak Mines v. District Court, 33 Nev. 120, we said: "By the stipulation in the lower court regarding a bond to be given in compliance with that section, [325] petitioners become estopped' to deny that the section governed the undertaking to stay execution in the case, or to assert, as they have done, that the other sections controlled the stay bond. This is not the first time that we have-had occasion to hold that the parties are estopped to rely in this court upon a position the reverse of that taken .by them in the district court. ”
We.see no valid reason why the rule of estoppel to question the finality of the judgment ought not to apply as well to a respondent who has assumed throughout the proceedings that the judgment was final. In this case counsel for respondents, not only did not question the finality of the judgment in brief or oral argument, but prayed for its affirmance. In the lower court they stipulated that the statement on motion for a new trial should be regarded as the statement on appeal from the judgment. They also petitioned for and obtained an order for the issuance of a writ of assistance as a part of the process to carry out the judgment, assuming, as they must have done for such purpose, that the judgment was final. (4 Cyc. 294; 3 Standard Procedure, 140; Stanley v. Sullivan, 71 Wis. 586, 37 N. W. 801, 5 Am. St. Rep. 245.) See " Argument for Respondents, ” Silver Peak Mines v. District Court, 33 Nev. 108.
In the briefs filed by counsel for respondents in the prohibition proceedings last above cited, which briefs were referred to and made a part of the briefs filed in this case, it was one of the contentions of counsel 'for respondents, as a reason why prohibition would not lie .against the issuance of the writ of assistance, that the petitioners in that case had the right of appeal from the order granting the writ, under the provisions of Comp. Laws, 3425. Under that section, the order, if appealable, was so because it was "a special order made after the final judgment.” In this court and the court below both parties have contended that the judgment was final, and both parties have sought for and obtained relief upon the theory that the judgment was final, and both courts have .assumed its finality.
[326] It is a primal duty of all courts to keep within their jurisdiction. Whenever a court takes any affirmative action there is an implied adjudication that it has jurisdiction so to act. (11 Cyc. 700; Manier v. Trambo, Fed. Cas. No. 18,309; Cook v. Weigley, 68 N. J. Eq. 480, 59 Atl.1029.)
Whether the judgment is final or only interlocutory is a question of law. That question having impliedly been determined in favor of its finality, and both parties having proceeded in both courts upon the assumption that it was final, neither party will be heard to raise the question for the first time on petition for rehearing.
Undoubtedly, a court, at any time, even of its own motion, may determine a question of jurisdiction, and there are cases where, notwithstanding that the rule as to. waiver would ordinarily apply, the court should not refuse to take notice of a suggestion of want of jurisdiction; for example, a case like that of In re Castle Dome Mining Co., 79 Cal. 246, 21 Pac. 746, where a party interested in maintaining the judgment and who would be injuriously affected by its reversal is not made a party to the appeal by the service of notice of appeal upon him.
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By the Court,
Norcross, J.:
Upon petition for a rehearing, counsel for respondents raise, for the first time, the question of the jurisdiction of this court to consider and determine the appeal. Want of jurisdiction is urged upon the ground that the judgment entered in the court below was not a final judgment, and therefore an appeal therefrom would not lie.
This court has repeatedly held that questions raised for the first time on petition for rehearing will not be considered. (Kirman v. Johnson, 30 Nev. 154; Brandon v. West, 29 Nev. 135; Powell v. N. C. O. Ry., 28 Nev. 305, 343; Beck v. Thompson, 22 Nev. 419.)
While it is a general rule that a jurisdictional question may be raised at any time, it is also settled in this court that a party may, by his conduct, become estopped to raise such a question. A party in an appellate court who has treated the judgment as final and asked that the same be affirmed or reversed will not be heard after-wards, when the decision has gone against him, to contend that the judgment was not final and the court therefore without jurisdiction to determine the questions presented on the appeal.
In Costello v. Scott, 30 Nev. 88, a case where the finality of the judgment was questioned for the first time on petition for a rehearing, we-said:. "Even if there was room for argument as to whether the judgment rendered in this cause was a final judgment, appellants, by treating it as such and appealing therefrom, are estopped to deny the finality of the decree” — citing State v. Commissioners, 22 Nev. 78.
In State v. Commissioners, supra, this court said: "Lander County treated it as a final judgment when it appealed from it to this court, and we entertained the [324] appeal and decided the case upon its merits. Having treated the entry as a judgment decisive of the merits of the case, and having taken and received the benefit of a remedy which it was otherwise not entitled to, we think that Lander County, and consequently the defendants, as its representatives, should now be estopped to claim that no final judgment has been entered in the action. In Bigelow on Estoppel, p. 601, the author says: 'It may accordingly be laid down as a broad proposition that one who has taken a particular position in the course of a litigation must, while that position remains unretracted, act consistently with it. ’ * * * In Clark v. Dunman, 46 Cal. 204, the court said: 'The only point to be decided under the agreed statement is whether the decree of August 20, 1869, is a final money judgment in the sense of the statute, and therefore bore interest. The plaintiff in this action treated the decree as final when he prosecuted an appeal from it. If it was not final his appeal should have been dismissed on that ground. But we entertained the appeal and decided the cause, and in justice the plaintiff should now be estopped to deny the finality of the decree.’ ”
In Brandon v. West, supra, we said: "There was no motion made to dismiss the appeal from the judgment because of any alleged defect therein, nor was the sufficiency or regularity of the appeal questioned upon the presentation of the cause. The case was briefed, argued, and presented as though the appeal was entirely regular. Its sufficiency, therefore, cannot now be questioned upon petition for rehearing. ”
In Taylor v. Crook, 136 Ala. 354, 34 South. 905, 96 Am. St. Rep. 26, it was held that one who induces the dismissal of an appeal on the ground that the decree is not final cannot afterward claim as against a bill of review that it was final. See, also, Ohio and Mississippi Railroad Co. v. Heaton, 137 Ind. 14, 35 N. E. 687.
In Silver Peak Mines v. District Court, 33 Nev. 120, we said: "By the stipulation in the lower court regarding a bond to be given in compliance with that section, [325] petitioners become estopped' to deny that the section governed the undertaking to stay execution in the case, or to assert, as they have done, that the other sections controlled the stay bond. This is not the first time that we have-had occasion to hold that the parties are estopped to rely in this court upon a position the reverse of that taken .by them in the district court. ”
We.see no valid reason why the rule of estoppel to question the finality of the judgment ought not to apply as well to a respondent who has assumed throughout the proceedings that the judgment was final. In this case counsel for respondents, not only did not question the finality of the judgment in brief or oral argument, but prayed for its affirmance. In the lower court they stipulated that the statement on motion for a new trial should be regarded as the statement on appeal from the judgment. They also petitioned for and obtained an order for the issuance of a writ of assistance as a part of the process to carry out the judgment, assuming, as they must have done for such purpose, that the judgment was final. (4 Cyc. 294; 3 Standard Procedure, 140; Stanley v. Sullivan, 71 Wis. 586, 37 N. W. 801, 5 Am. St. Rep. 245.) See " Argument for Respondents, ” Silver Peak Mines v. District Court, 33 Nev. 108.
In the briefs filed by counsel for respondents in the prohibition proceedings last above cited, which briefs were referred to and made a part of the briefs filed in this case, it was one of the contentions of counsel 'for respondents, as a reason why prohibition would not lie .against the issuance of the writ of assistance, that the petitioners in that case had the right of appeal from the order granting the writ, under the provisions of Comp. Laws, 3425. Under that section, the order, if appealable, was so because it was "a special order made after the final judgment.” In this court and the court below both parties have contended that the judgment was final, and both parties have sought for and obtained relief upon the theory that the judgment was final, and both courts have .assumed its finality.
[326] It is a primal duty of all courts to keep within their jurisdiction. Whenever a court takes any affirmative action there is an implied adjudication that it has jurisdiction so to act. (11 Cyc. 700; Manier v. Trambo, Fed. Cas. No. 18,309; Cook v. Weigley, 68 N. J. Eq. 480, 59 Atl.1029.)
Whether the judgment is final or only interlocutory is a question of law. That question having impliedly been determined in favor of its finality, and both parties having proceeded in both courts upon the assumption that it was final, neither party will be heard to raise the question for the first time on petition for rehearing.
Undoubtedly, a court, at any time, even of its own motion, may determine a question of jurisdiction, and there are cases where, notwithstanding that the rule as to. waiver would ordinarily apply, the court should not refuse to take notice of a suggestion of want of jurisdiction; for example, a case like that of In re Castle Dome Mining Co., 79 Cal. 246, 21 Pac. 746, where a party interested in maintaining the judgment and who would be injuriously affected by its reversal is not made a party to the appeal by the service of notice of appeal upon him.
A court, however, should not be required, on petition for a rehearing, to go into the consideration of a legal question, which has virtually been adjudicated in accordance with the contentions of all the parties, for the sole purpose of affecting the jurisdiction in the event the direct ruling might be contrary to that implied.
The lower court determined all the issues raised by the pleadings in the case, and the judgment entered was manifestly intended as a final judgment, and it was so treated by all the parties.
In addition to the jurisdictional question, the petition for a rehearing is confined to an argument of the questions fully considered and determined in the opinion heretofore rendered. We entertain no doubt as to the correctness of the conclusion heretofore reached upon the merits of the case.
[327] Included in the reply to the petition for a rehearing, counsel for appellants have requested this court to modify the order heretofore made by directing the court below to enter a judgment in favor of the defendants dismissing the action with costs. No contention was made, upon the hearing, that such an order should be made by this court. If counsel for appellants were of the opinion that this is such a case as would justify this court in directing a judgment in appellant’s favor, they should have presented that question upon the original hearing when opposing counsel would have had full opportunity to be heard in opposition. A question as to the modification of the order heretofore entered, in the respect suggested, will not now be considered. (Brandon v. West, 29 Nev. 138.)
The petition for a rehearing, is denied and the cause remanded.