Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1900-03-31
OPINION


BY Bonnifield, CD.
In an action brought before respondent
as Justice of the Peace OF said Town
ship, swherein C. E. Wylie and Ed. J.
Walsh were plaintiffs and Zenas Pratt,
the petitioner, was defendant, judgment !
by default was given against said petit |
toner for $3.50 and costs.
The petitioner seeks, by certiOrdri, to
have said jud glnent declared null and |
void, on the ground that respondent ex
>ceeded his Jurisdiction in giving the
same.
licatien of the Summons and directed
that . copy of the summons and COM
plant be deposited in the Postoffice, etc.
Counsel tor petitioner contends that the
Justice exceeded his jurisdiction in max
ing said order for the reason that the affi-
davit for the publication of summons
was fatally defective in that it did not
appear theref1om, that a cause of action
existed against the defendant in respect
to whom the service was to be made, as
required by Section 1888 of the General
Statutes. But Section 1852 of the General
Statutes, as amended by Statute 1889, p.
q, and which is made applicable to JUS
tees Courts, provides: when the per-
sen on whom the service is to be made
resides out of the State . and the
fact shall appear by affidavit to the salts
faction of the court or judge thereof, and
it shall appear, either by affidavit, or by
verified complaint on file, that cause
of action exists against the defendant in
respect to whom tho service is to be
made = such court or judge may
grant an order that the service be made
by the publication Of the summons
(Sec 3125, Compiled Laws Of 1900
The complaint filed clearly states a
cause of action against Zenas Pratt, the
defendant therein named, but it is not
verified. The affidavit states that
the complaint was filed in the above en-
titled court and cause on the 10Th day OF
June, 1899, that said action is brought to
recover the sum of fifty-six dollars and
ninety-nine cents, which said cause of
action is fully set forth in the complaint
of plaintiffs on file herein and which
complaint is hereby referred to and made
part of this affidavit . ="
The complaint consists Of a copy Of an
account against said defendant fer goods
wares and merchandise, and is sufficient
as complaint in Justices Court. Sec
$780, Compiled Laws of 1900 and lit is
allowed to import allegations that mus
be expressly made in similar actions
commenced in the District Courts
Martin VS.. District Court Ii New. 35)
The complaint in said action is equiva
lent to the allegations that between thu
sth day of March, 1898, and the 10Th da.
of June, 1898, the said plaintiffs sold ant
delivered to the said defendant at his re
quest goods, wares and merchandise, to
wit: las specified in said account) Of tn
reasonable value of 1929, and that tn
whole Of said sum was at the date of fiji
ing of the account due and unpaid, ex
cept the sum of $1,000 which has bee1
paid. Q3 New. sepra.)
In Legare VS.. Cal. S. r. r. Co., rs Ca
6lO, the court considered that a certain
affidavit for the publication Of summon
was sufficient under the statute of tina
state. Lie AllludSit was
the same as the one in question here, a
to the showing made of the existence c
a cause of action, and the California stat
ute is the same as said Section 1852, wit
respect to the showing to be made. Th
court held that if the complaint be ne
verified the affidavit may refer to an
adopt it's contents, that in such case tn
oath to the affidavit is an oath to the cor
tents of the com plant referred to.
We are of opinion that the affidav
in question properly showed the exis
ence of a cause Of action against the d
PENDANT.
ATTACHMENT. The Justice issue
writ Of attachment against the propert
Of the defendant in said action. Ceuns
contends that the affidavit filed therefi
was not sufficient to authorize the ISIS
ing Of the writ, because, as he claims,
does not show: "The nature of the pla
tiffs' claim, that the same is just and Il
amount which atlantis believe the plat
tiffs are entitled to recover"
Section 32l9, Compiled Laws Of 1907 D
vidss: "The Clerk of the Court shall
sue the writ Of attachment upon recei
ing and filing an affidavit by or on /
half of the plaintiff showing the natu