Gamble v. First Judicial District Court ( 1903 )

I am not able to concur in the opinion of my esteemed associates. The California case cited is not in point, because there the motion was made in open court, and notice was given or waived by appearance, and the statute in that state is materially different from ours. In my judgment, sufficient facts are not shown here by the petition or by the evidence to warrant the issuance of the writ.

It appears that on February 23d a copy of the application for the removal of the case pending in Esmeralda county was served upon respondent in Carson City, and subsequently, on April 4th, the original was field with the clerk at Hawthorne in the absence of the judge; that at the term held by him there later his attention was not called to the matter by motion or otherwise, no time for hearing was specified in the application, and no notice of demand for removal was either served upon the defendants or filed with the clerk, but the petitioners applied here, when they and their attorneys made no appearance, seeking removal, before the court at Hawthorne. The controlling paragraph is section 21 of the practice act (Comp. Laws Nev., sec. 3116), which provides that, "if the county designated for that purpose in the complaint be not the proper one, the action may, notwithstanding, be tried therein, unless the defendant before the time for answering expire demand in writing that the trial be had in the proper county, and the place of trial be thereupon changed by consent of parties, or by order of the court, as is provided in this section"; that the court may, on motion, change the place of trial, for sufficient specified reasons, the fourth of which is "the disqualification of the judge to act in the case."

The rules of the district court, as approved by this court, and repeatedly held to have the effect of legislative enactment under the statute providing for them, require that "motions in all cases, except ex parte motions, motions for continuance, and motions to amend pleadings pending a trial, shall be noticed at least, five days before the day specified for a hearing, and a copy of all papers to be used by the moving party, except pleadings or other records of the court, shall be served with notice of motion. The notice of motion shall be in writing, and shall specify the papers to be used and the names of witnesses to be examined by the moving party, and the grounds upon which the motion is made; provided, that the court may, upon good cause shown, shorten or enlarge the time for hearing. For a failure to comply with this rule the motion shall be denied."

Pratt v. Rice, 7 Nev. 126, if not overruled, requires notice to be given of motions like the one which ought to have been, but was not, made by petitioners in the district court for removal. Quoting and adopting partly the language of Mr. Daniel, it is said in that decision: "Upon the 12th of April, 1871, appellants moved, on notice, to vacate the order thus made, upon the grounds that it was made without notice and without sufficient showing of facts. By the practice act of this state, ``after appearance, a defendant or his attorney shall be entitled to notice of all subsequent proceedings, of which notice is required to be given.' There is nothing further in the practice act touching the question of notice in motions of the nature of the one under consideration. It is neither specially required nor excused, nor does there appear to be any rule of court upon the subject. Consequently reference must be had to generally received practice. The object of ex parte motions is generally to prevent the performance of some act which, if performed, might be productive of irreparable injury, and it is therefore desirable that the party affected by it should not have any previous intimation of the intention to apply to the court to restrain him. Where there is no danger that the object of the motion would be defeated if notice were given, they will not be permitted, * * * and special applications concerning the proceedings in the cause, not regulated either by the general orders, or by any clearly defined rule of practice, must always be made upon notice. The reason of the rule is against the practice pursued in this case. This was not an order of course. There was no cause for haste or concealment."

It is important and fair that opposing litigants have notice, so that they may appear and resist the removal of actions to which they are parties, or, if they are without grounds for such opposition, that they may at least be informed that their case has been removed to some other county, in order that they may arrange for trial accordingly. There is no need of secrecy in making the order for removal, no apparent reason why notice should not be given, and nothing to indicate that it would work any injury to petitioners. As said in that case, there is no cause for haste or concealment. (State v. Murphy,19 Nev. 97, 6 P. 840; State v. Cheney,24 Nev. 226, 52 P. 12; People v. Cazalis,27 Cal. 522.)

As determined by this court recently in Wonacott v. Nye County Commissioners, 27 Nev. 102, 73 P. 661, the district court for any county can be held only at the proper county seat. In Ex Parte Gardner, 22 Nev. 284,39 P. 570, considering an action pending at Dayton, Lyon county, wherein the judge, while in regular session in Carson City, and by consent of all concerned, made an order removing the case from Dayton, which was held to be ineffective because not entered there, this court said: "The judge alone does not constitute a court. Burrill defines the term thus: ``A court may be more particularly described as an organized body with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers, viz: Attorneys and counsel to present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and secure due order in its proceedings.' Proceedings at another time and place or in another manner than that specified by law, though in the personal presence and under the direction of a judge, are coram nonjudice and void. (State v. Roberts,8 Nev. 239; Wightman v. Karsner, 20 Ala. 446;Brumley v. State, 20 Ark. 77.) It follows that the district court of Lyon county could not possibly have had any authority to sit as a court in Ormsby county, even supposing it had attempted to do so. Section 21 of the practice act (Gen. Stats, sec. 3043) provides that ``the court may on motion change the place of trial.' This, of course, means the court where the action is pending. It is not possible for one court to reach out and draw to itself jurisdiction of an action pending in another court, even when done with the consent of parties, for that would be to confer jurisdiction by consent, which, so far as subject-matter is concerned, can never be done."

It is clear that, if respondent had made an order for removal at the time the application was received by him in Carson City, it would have been entirely void, and to that extent such service does not justify the issuance of the writ of mandate directing a vain and worthless act. Now, was it incumbent on respondent to make the order while holding court after he went to Hawthorne, without any motion being made, in the absence of the attorneys and litigants, and without any notice having been given"?

Adopting the reasoning and conclusion reached by the Supreme Court of California, the Supreme Court of Montana, in Wallace v. Lewis, 9 Mont. 403, 24 P. 23, said: "Our statute (section 482, Code Civ. Proc.) defines a motion as follows: ``Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion.' The statute of California is identical. (Prac. Act Cal. sec. 515; Code Civ. Proc. Cal. sec. 1003. See, also,Jenkins v. Frink, 27 Cal. 339.) In People v. Ah Sam, 41 Cal. 650, Temple, J., interprets the above law as follows: ``A motion is properly an application for a rule or order made viva voce to a court or judge. It is distinguished from the more formal applications for relief by petition or complaint. The grounds of the motion are often required to be stated in writing and filed. In practice, the form of the application itself is often reduced to writing and filed. But making out and filing the application itself is not to make the motion. If nothing more were done, it would not be error in the court to entirely ignore the proceeding. The attention of the court must be called to it. The court must be moved to grant the order.' "The rule proclaimed in State v. C. P. E.R. Co., 17 Nev. 270, 30 P. 887, and by courts and text-writers generally, limits the proof of the proceedings of all regular tribunals to the minutes properly approved. Here there is no such proof, which is the only proper evidence that the court refused to make the order desired. This must necessarily be so, because there was no motion, and no such refusal by the court. I see no reason to depart from the rule so universal, and wisely founded on long experience, which confines the proof of the action of any court to its minutes and record. The statute provides that when the judge is disqualified the court may, on motion, order the case moved to any county; and, in my opinion, the words "on motion" mean what they imply, and were inserted for a purpose, and ought not to be eliminated by judicial construction.

Any one of the reasons suggested — absence of notice, neglect to make any motion in open court, and failure to show that the court refused to make an order for removal — is, in my opinion, sufficient ground for denying the writ; and I believe that it would better serve the ends of justice and comply with the best practice to require the petitioners to proceed in the ordinary manner, give the customary notice, and move the court in open session at Hawthorne, in the usual way, for the order of removal which they desire, and, if refused there, which is not to be presumed, show such refusal by proper proof, which would be the court minutes.