Ellis v. McDaniel ( 1979 )

Gunderson, J., with whom Batjer, J., agrees,

dissenting:

We respectfully dissent.

Dickerson v. District Court, 82 Nev. 234, 414 P.2d 946 (1966), did not hold that a petition for extraordinary relief could be considered an appeal. Dickerson held, rather, that if this court “lulled” the petitioner into believing a petition for extraordinary relief would be considered, then this court would excuse consequent failure to appeal, and would consider jurisdictional issues proffered by the petition. The distinction is significant.¹

Here, whether the scope of the preliminary injunction was erroneous in light of the evidence is surely not a jurisdictional issue. It is one addressed to the district court’s sound discretion, and is reviewable only by appeal. By law, such issues are outside the ambit of prohibition. NRS 34.320.

Moreover, even on an appeal, it would be incumbent on Dr. Ellis to bring this court a proper record of the proceedings. Again, heretofore, it has never been this court’s practice to review the actions of trial courts, without transcripts, on the basis of whatever can be gleaned from argument of counsel. See, for example, Pfister v. Shelton, 69 Nev. 309, 250 P.2d 239 (1952).

Thus, this court is certainly breaking new ground. Without reviewing the record before the district court — in a case over which that court clearly had jurisdiction — this court is here intervening through extraordinary proceedings to review and restructure a routine preliminary injunction. In our view, rather than second-guessing the district court, in the absence of the evidence upon which that court acted, we should dismiss these proceedings, and allow the district court to proceed to a trial on the merits.

1 The distinction was ignored in State v. District Court, 85 Nev. 381, 455 P.2d 923 (1969). There was no need to consider those certiorari proceedings as an appeal. They might better have been considered as in mandamus to require a proper exercise of jurisdiction.