Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-07-02
SUPREME COURT DECISION.

CONTINUED from Page 2)
had been taken from the Judgment Of
dismissal, which cannot be done in
a proceeding of this character The
case could not be brought to this Court
by appeal. because the sum involved is
not sufficient to give it jurisdiction, but
upon the application for this writ. We
are asked to review an order or judg-
ment of the Court below, adjudged 1t
to be erroneous. set it aside. and di.
rect the court to proceed with the
trial. To do so we would simply con-
vert the writ of mandamus into writ
of error.
The Court below having made an
order disposing of the cause, no mat
ter how erroneous it may have been,
] it cannot be reviewed in this Court"
The case of Treadway VS.. Wright,
supra, has been cited as authority by
Courts and text writer's. as in the
cases of People VS. Garrett 100 Ill. SAB.
and Ewing VS. Coin 60 Tex. 4S5. and
in Highs Elk Leg. Rom. Secs. 173.
191, and the law, therein decided, fol-
lowed. In the concurring opinion of
Hawley, j.. in the case of Floral
Springs w. Co. VS. Rives, Ia New. 435,
after giving it as his opinion that the
case of Treadway VS. Wright was cor
rectly decided, that distinguished jur-
list said:
I'm every case where an appeal has
been taken from the Justices court II
} Is the duty of the District Judge, up.
on proper request, to make such dis
position of the case as. in his judg
ment, the law and facts may warrant
re Nd n$ he
case, the writ of mandamus cannot BE-
, used to review his action. But if he
). refuses the writ will be issued tS
compel him to act"
While this proceeding is in certior
ari and several of the decisions here
in referred to were rendered in pro
ceedings in mandamus, the reasonin,
Z set forth for denying the issuance o
. the writ applies with equal force t.
:. both procedures. In fact the ma
jority of courts that have granted re
y lief against erroneous dismissals o
appeals from inferior courts have he'll
that mandamus was the proper RENE
5 DIV instead of certiorari. (See Is Enc
n of Pl & Prac $50 Hence, an exam
Y ination of the question presented ha
, accustomed a review of authorities III
der both procedures.
The reason for denying power j
the Supreme Court to correct, by or
II ginal proceedings, errors committe
by the District Courts in erroneousl
dismissing appeals from justice
courts is concisely stated in the to
lowing extract from the opinion
the Court in the case OF Buckley v
Superior Court, SUPRA
"The vital question was. Did til
iii Superior Court exceed it's jurisdictiG
in dismissing the appeal? not, was Il
appeal enormously dismissed? Wht
| an appeal is regularly taken. itf
| court not only has jurisdiction to t
III the cause upon it's merits, but it h
entire and complete jurisdiction
H the cause for any and all purpose
| 1t has jurisdiction to hear motl'
III to dismiss the appeal as fully as
has jurisdiction to hear and determi
II the cause upon its merits; and to I
III roneously dismiss the appeal is.
II more jufisdictional that to errOneO,
II Nv decide the merits of the cause.
II ut follows that if the court err
II in dismissing the appeal, it was do
II in the exercise of jurisdiction. and \
in assuming jurisdiction which
not exist. 1t was mere error
II the exercise of its pOwer-an error
l law which will not be reviewed by
original proceeding" buckley VS.
II perior Court 96 Cal. III; Crooks
District Court q Utah So; New. &c
Il r. R. Co., VS. District Court 81 N
Eli
u For the reasons given the writ
dismissed.
Norcross.
We Concur:
Fitzgerald. c. j.