State ex rel. Watkins v. Bonnifield

10 Nev. 401

Opinion

By tbe Court,

Eabll, J.:

Tbe relator was indicted and convicted in tbe district court of tbe fourth judicial district, county of Humboldt, for tbe crime of burglary, and this proceeding was instituted on bis behalf to compel tbe respondent, as tbe judge of said court, to settle and sign bis bill of exceptions taken during tbe progress of bis trial. Upon tbe petition of relator, an alternative writ of mandate was granted, and upon its being served, tbe respondent immediately proceeded to examine, settle and sign tbe bill, and tbe return shows that be has fully complied with tbe commands of said writ; hence there is no necessity for further proceedings in that direction.

It is, however, insisted on tbe part of tbe relator that judgment for costs should be awarded against respondent. "While tbe circumstances were such as to induce a reasonable belief on tbe part of tbe relator that respondent intended an evasion of tbe performance of a duty enjoined upon him by the statute, yet, from an examination of respondent’s return to tbe writ, we are satisfied that no evasion of bis duty was intended. Tbe returp shows that respondent never received tbe letter of August 14th which was addressed to him from Virginia by the counsel for relator, and, therefore, was not aware that counsel intended to be at Winnemucca for the purpose of settling the bill of exceptions.

We are therefore of opinion that the proceedings should be dismissed without costs to respondent, and as this proceeding is ancillary to Watkins’s right of appeal the costs must be taxed, as is usual 'in criminal cases, to the county.