Sardis v. Second Judicial District Court

460 P.2d 163, 85 Nev. 585, 1969 Nev. LEXIS 431
CourtNevada Supreme Court
DecidedOctober 29, 1969
DocketNo. 5952
StatusPublished
Cited by11 cases

This text of 460 P.2d 163 (Sardis v. Second Judicial District Court) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sardis v. Second Judicial District Court, 460 P.2d 163, 85 Nev. 585, 1969 Nev. LEXIS 431 (Neb. 1969).

Opinion

OPINION

By the Court,

Mowbray, J.:

Petitioner John Sardis seeks a writ of prohibition enjoining [587]*587the Second Judicial District Court from proceeding in an action pending in that court in which Sardis is charged in a criminal complaint with “PRACTICING ARCHITECTURE IN THE STATE OF NEVADA WITHOUT A CERTIFICATE, A VIOLATION OF NRS 623.180.”

Sardis was convicted in justice’s court on December 2, 1965. He appealed to the district court for a trial de novo, where he moved for a dismissal of the complaint on the grounds that the district court was without jurisdiction to proceed because (1) the complaint failed to allege facts constituting a public offense and (2) Sardis as a structural engineer was exempt as a matter of law from the provisions of NRS 623.180. The court denied the motion, and Sardis has petitioned this court for a writ of prohibition. We hold that the writ should issue.

I. APPROPRIATE REMEDY

Prohibition is a proper remedy in this case. Article 6, section 6, of the Nevada Constitution confers upon our district courts final appellate jurisdiction in all issues appealed from justice’s courts. Ordinarily, Sardis’s final recourse would rest with the district court. When, however, valid jurisdictional objections are raised and are denied by the district court, a resulting trial in the district court would be futile. As the court said in Farraher v. Superior Court, 187 P. 72, 73 (Cal.App. 1919), in commenting on a writ of prohibition as an appropriate remedy in a case procedurally similar to the instant case:

“Notwithstanding the insufficiency of the complaint, prohibition would not lie against the justice court proceeding with the trial of the defendant thereon, for the reason that, if convicted, he would have a plain, speedy, and adequate remedy by appeal to the superior court. . . . [Njevertheless, as was his right, he availed himself of the remedy by appeal, and, on perfecting the same, made his motion to dismiss the action for want of a sufficient complaint. Since, as we have seen, no facts constituting a criminal offense were stated therein, there was nothing upon which to try the defendant, and hence the court should have granted the motion, instead of which, however, it made an order denying it, and, as shown, threatens to and will, unless restrained by an order of this court, proceed with the trial for the purpose only of determining whether or not the judgment should be modified. It therefore appears fhat the judgment which the court proposed to render would be a futile act. No appeal would lie therefrom, and conceding that petitioner might, upon such conviction in the superior court, avail [588]*588himself of an application for a writ of review to have the judgment annulled, or seek release from custody by habeas corpus, nevertheless no purpose could be served by subjecting petitioner to a trial, the result of which, concededly, would be a nullity. Clearly, upon the facts presented, the court should be prohibited from taking any action in the case, other than to make an order dismissing the same. Hogan v. Superior Court, 16 Cal.App. 783, 117 Pac. 947.”

Nevada has granted writs of prohibition in similar situations. See Smith v. District Court, 75 Nev. 526, 347 P.2d 526 (1959), and Houser v. District Court, 75 Nev. 465, 345 P.2d 766 (1959). In both cases the petitioner sought a writ of prohibition on the ground that the Information did not charge a public offense and that, therefore, the court was without jurisdiction to try the case. And in both cases the court held that the complaints were insufficient and granted the writs. The court, in Houser, at 469, approved an earlier Nevada decision:

“In Re Waterman, 29 Nev. 288, 89 P. 291, 11 L.R.A., N.S., 424, this court held that there can be no conviction for or punishment of a crime without a formal and sufficient accusation and that in the absence thereof a court acquires no jurisdiction whatever, and if it assumes jurisdiction, the trial and conviction would be a nullity. As the amended information fails to charge the elements of the offense of grand larceny or any other felony or gross misdemeanor, the trial court is without jurisdiction to proceed with the trial of defendants upon such amended information.”

II. SUFFICIENCY OF THE COMPLAINT

At the time Sardis was charged with the violation of NRS 623.180, NRS 185.030 provided, in part:

“1. When a complaint is laid before a justice of the peace, or a judge of any inferior tribunal having jurisdiction of criminal offenses, that an offense has been committed, of which a justice’s court or other inferior tribunal has jurisdiction, the justice or judge to whom the complaint is made shall cause the person making the complaint, or someone else, to file with him a statement in writing, sworn to before him, or some other officer authorized by law to administer oaths, setting forth the offense charged, with such particulars as to time, place, person and property as to enable the person charged to understand the character of the offense complained of and to answer the complaint or charge.'’'’ (Emphasis added.)

[589]*589It is patently clear that the complaint fails to meet even the minimal standards of specificity required in such cases. It alleges:

“That the said defendant from October, 1964 until May, 1965, or thereabouts, at Reno Township, in the County of Washoe, State of Nevada, did wilfully and unlawfully practice architecture without having a certificate issued to him under the provisions of Chapter 623 of the Nevada Revised Statutes.”

NRS 623.040 defines the “practice of architecture” as:

“. . . the holding, out to the public of services embracing the scientific, aesthetic, and orderly coordination of all the processes which enter into the production of a completed building, performed through the medium of unbiased plans, specifications, supervision of construction, preliminary studies, consultations, evaluations, investigations, contract documents, and oral advice and direction.”

The complaint as drawn merely charges the petitioner with a violation of the statute, and nothing more. This is manifestly not sufficient. As Chief Justice McCarran wrote in Ex parte Rovnianek, 41 Nev. 141, 149, 168 P. 327, 329 (1917), in quoting Chief Justice Waite in United States v. Cruikshank, 92 U.S. 542, 558 (1875):

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Sardis v. SECOND JUD. DIST. CT. IN & FOR CO.
460 P.2d 163 (Nevada Supreme Court, 1969)

Cite This Page — Counsel Stack

Bluebook (online)
460 P.2d 163, 85 Nev. 585, 1969 Nev. LEXIS 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sardis-v-second-judicial-district-court-nev-1969.