Minden Butter Mfg. Co. v. First Judicial District Court in & for Douglas County , 57 Nev. 29 ( 1936 )

Your petitioners contend that the First judicial district court, the respondent herein, never acquired jurisdiction of the civil action of Carl Syll v. Minden Butter Manufacturing Company and W.H. Pearson, on appeal, basing their contention upon two major propositions, namely:

(a) That no legal bond was given, as required by section 9339 N.C.L. as constituting an essential step to clothe the district court with jurisdiction, and that that part of the section which provides what shall be the equivalent of the undertaking required applies in a case where no stay of proceedings is asked for, such as the case at bar, as is clearly shown in the decision of this court in Floyd v. District Court, 36 Nev. 349, 135 P. 922. Section 9339 is clearly inconsistent with section 9363 N.C.L., and in such a case the special statute, or "the one dealing with the common subject matter in a minute way, will prevail over the general statute." 59 C.J. 1056; Oklahoma Natural Gas Co. v. McFarland, 288 P. 471; United States v. Lapp, 244 Fed. 377. This court, in the Floyd case, supra, also refers to section 3679 Cutting's Comp. Laws (same as section 9339 N.C.L.) as being "the applicable statute at the time this appeal was taken." Consequently, it appears that under the Nevada law, in order for an appeal to be perfected, or the district court to acquire jurisdiction, where a deposit, instead of an undertaking with two sureties is used, it must be a deposit in the amount of the judgment, including all costs. The California case of Laws v. Troutt, 147 Cal. 172, 81 P. 401, is not in point, for the reason that the California courts have taken a different view of their section, which is similar to section 9339 N.C.L., and have held that that portion of the section which provides that a deposit of the amount of the judgment appealed from, including all costs, applies only where a stay of proceedings is claimed. Pacific Window Glass Co. v. Smith (Cal.App.), 97 P. 899. Consequently, under their interpretation, there is no specific statute prescribing the requirement for a money deposit in lieu of the undertaking, in a case where no stay of proceedings is claimed, and there is then no applicable statute left but the general statute, which corresponds to our section 9363 N.C.L.

(b) That no written notice of the filing of an undertaking on appeal from the justice's court was ever given to your petitioners, or to their attorneys, and that this constitutes failure to take an essential step necessary to give the district court jurisdiction. Section 9339 N.C.L.; State v. Eighth Judicial District Court, 54 Nev. 404, 20 P.2d 655. The courts have construed the sections concerned many times. It will be noted that section 968 of the Code of Civil Procedure of the State of California is almost identical with section 9339 of the Nevada code, and section 967 of the California code is identical with section 9363 N.C.L. Laws v. Troutt, 147 Cal. 172,81 P. 401; Floyd v. Sixth Judicial District Court, 36 Nev. 349,135 P. 922; State v. Brown, 30 Nev. 495, 98 P. 871.

Where no stay of proceedings is asked, section 9339 N.C.L. in no place provides that notice should be given the defendant of the filing of a bond. The very fact that the notice of appeal is filed with the justice of the peace is, in itself, notice that a bond has been given, as the justice of the peace would not be at liberty to file a notice of appeal if it were not accompanied by a bond as the section provides. Alt v. California Fig Syrup Co.,18 Nev. 423, 4 P. 743; Floyd v. Sixth Judicial District Court, supra.

The statute in relation to the giving of notice was written to cover surety bonds, a promise to pay, but not a bond where the good, solid money of our country was deposited.

OPINION This is an original proceeding in certiorari. The petition and supporting affidavits disclose that petitioners were defendants in a civil action in the justice's court of East Fork township, State of Nevada, in which judgment was rendered in their favor. Plaintiff therein on the 8th day of August 1935, filed in said justice's court, and served on petitioners, a notice of appeal to the district court of the First judicial district of said county. At the same time plaintiff also filed in said justice's court a written document purporting to be an undertaking on appeal, with one August Syll being the sole surety thereon. This undertaking recites as follows: "As surety of said undertaking I herewith deposit with the court the sum of one hundred dollars, legal money of the United States." The document was sworn to by the surety.

It is admitted that the deposit of money was made as stated. Neither petitioners nor their attorneys were apprised of the filing of the undertaking or of the deposit of the money, and had no knowledge thereof. On the 22d day of October 1935, the case was tried de novo in said district court, and judgment rendered in favor of plaintiff in the amount of $275 and costs. On the 3d day of December 1935, a motion made by petitioners in said district court for an order vacating the judgment on appeal and dismissing the same on the ground that the court was without jurisdiction to entertain the appeal was denied. Hence the proceeding for a review in this court.

Petitioners contend that jurisdiction was wanting in the district court (1) because no legal bond was ever given to perfect the appeal, and (2) because no written notice of the filing of an undertaking was ever given.

Concerning an appeal from a justice's court, section 9339 N.C.L. provides in part as follows:

"An appeal from a justice's court where no stay of proceedings is claimed is not effectual for any purpose unless an undertaking is filed, with two or more sureties, in the sum of one hundred dollars, for the payment of the costs on the appeal. If a stay of proceedings is claimed, the appellant must file an additional undertaking, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money. * * *

"A deposit of the amount of the judgment, including all costs, appealed from or of the value of the property, including all costs in actions for the recovery of specific personal property, with the justice, is equivalent to the filing of the undertaking."

1. It is insisted by petitioners that these provisions are controlling, and that under them, as to the first point, the giving either of an undertaking in twice the amount of the judgment, including costs, or a deposit in the amount of the judgment and costs, was an essential step to give the district court jurisdiction. No stay of proceedings was claimed. Consequently an undertaking with two or more sureties in the sum of $100 would have satisfied the statute. There is nothing uncertain about this. The first part of said section so prescribes in precise terms. As we have seen, such an undertaking was not given, but the sum of $100 was deposited in the justice's court at the time the undertaking, with one surety, was filed. We think the deposit was sufficient to confer jurisdiction by virtue of section 9363 N.C.L., which provides: "In all civil cases arising in justice's courts, wherein an undertaking is required as prescribed in this act, the plaintiff or defendant may deposit with said justice a sum of money in United States gold coin equal to the amount required by the said undertaking, which said sum of money shall be taken as security in place of said undertaking."

2. This was the effect given to a statute of California (section 926 Cal. Code Civ. Proc.) identical with section 9363, by the supreme court of that state, in Laws v. Troutt, 147 Cal. 172,81 P. 401. When that case was decided, the California statute (section 978 Code Civ. Proc.) providing for appeal bonds in cases arising in justice's courts was practically the same as section 9339 N.C.L. Our statutes were taken from the California code. So we presume that section 9363 N.C.L. was adopted by the legislature with the construction given it by the supreme court of the parent state. Menteberry v. Giacometto, 51 Nev. 7,267 P. 49.

We are told by petitioners that the case of Floyd v. District Court, 36 Nev. 349, 351, 135 P. 922, 4 A.L.R. 646, supports their contention. The law has been changed since the appeal was taken in that case. Section 9363 N.C.L. was not then, as now, a part of the law governing the taking of appeals in cases arising in justices' courts.

Counsel for petitioners describe this section as a general or catch-all provision of no application. It was not considered so in the state from which it was adopted, Laws v. Trout, supra, nor are we of that opinion. The language of the section does not leave any room for construction in line with petitioner's contention. It reads: "In all civil cases arising in justices' court," etc.

3. The point that the court was without jurisdiction because no notice of the undertaking or deposit was given must also be decided adversely to petitioners. They rely on the last part of section 9339, which reads: "The adverse party may except to the sufficiency of the sureties within five days after writtennotice of the filing the undertaking, and unless they or other sureties justify before the justice within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking had been given." (The italicizing is ours.)

It is not there or elsewhere required that notice of a deposit made in lieu of an undertaking be given to a respondent, and with reason. The very purpose to be served in requiring written notice of an undertaking is effected by a deposit in lieu thereof; namely, adequate security. The law does not require vain acts. State ex rel. Collins v. District Court, 54 Nev. 404,20 P.2d 655, cited by petitioners, is therefore not in point.

The writ must be dismissed.

It is so ordered.