Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1916-12-29

lItC ~ lSol pioP>i' ""o cAoNSAN
Tissue, whereupon, under the statute
it became the duty of the Justice tc
forthwith certify the cause TO the
District Court, but instead of SO do
ing he dismissed it. Upon ap
peal it was urged the same
as here, that the District Courr
Court was without jurisdiction be.
cause OF the rule that the Distric'
Court by virtue of an appeal succeeds
only to the Jurisdiction Of the JUS
tice Court, and that where the Jus.
tice Court has no jurisdiction the ap-
pellate Court acquires none The
Court there says: in this case tux
Justice not only had authority tc
transfer the case TO the District
Court, but it was his express duty to
do so. The distinction between thu.
case, and those, where there is no jur-
isdiction or no authority to transmit,
is apparent. In such cases there IS
neither right nor dutv to certify the
not give Jurisdiction. The
proceedings are irregular, but were
made so by the error of the Justice in
stead of certifying the case; and fol
| lllIS Cllol III pldilltIll IL Ill III way
responsible. We are Of
opinion that when a justice has, by
d~isregarding the statute, made it nee
essary to appeal, the District Court
acquires jurisdiction, and that it is
error for the District Court to refuse
to entertain the action and to dismiss
| the appeal: and this view is in har-
mony with the opinion Of other
courts under similar statutes
There the justice pronounced all
unauthorized judgment when, instead,
he should have certified the case &c
the DISTRICT Court for further pro
ceedings. yet the. appeal from such
unauthorized judgment was held to
vest jurisdiction of the subjec1-mat-
ter in the appellate court. which or
dinarily would have been transferred
there without appeal by the order OF
the Justice. Here the Justice Court.
having conceded jurisdiction OF per
son and subject-matter, proceeds I'M
authorizedly. after it had become ~.
mandatory duty to transfer the cause
for trial to another Justice Court. and
accordingly enters Judgment, void be-
cause of want of power to enter any
Judgment at ali. but from which de-
PENDANT has seen fit to appeal gener-
ally upon both law and fact and de-
mahd a trial de novo in the appel
late court. The statutes concerned
IN Johnson VS.. Erickson, and IN the
case at bar. are in effect analogous.
both superseding jurisdiction to de-
termlne the merits. If an appeal from
a void Judgment Of dismissal. as in
Johnson VS.. Erickson. c%onfers appel
late jurisdiction Of subject-matter.
most certainly under these circum-
stances the appeal SO taken general
~ must be held to confer Jurisdiction
Of subject-matter as we'll as person
upon the appellate court"
johnson VS.. Erickson. IA n. D.
ala. los n. w. l104; Heard VS.. Hol-
brook. p n. d. 34S. 131 n. w. 251.)
In the case at bar, the Justices
Court had jurisdiction Of the action
as brought upon the Phillips com.
plant 1t was also an action of which
the District Court had concurrent
jurisdiction. 1t was not until Dahl
strom and Amedeo interviewed to en-
force their liens that it appeared that
the Justices Court was without juris-
Ilct;on to proceed to trial and judg-
ment. When Dahlstrom and .Amedeo
interviewed, it was, we think, the duty
OF the Justice to certify the case &c
the District Court. The situation was
then analogous to that of a case where
title to real property is raised by ans
wer or by evidence upon the trial
The jurisdiction to proceed to trial
was not raised bv defendant. After
trial and Judgment in favor of the
plaintiff and Intervening lien claim
ants, defendant took his appeal to the
District Court where trial was again
Dad without any question being ra1s-
ed as to the jurisdiction of either
court. The question of jurisdiction
was apparently not thought OF until
after appeal to this Court.
1t may be conceded that the judg
ment of the Justices Court was a nul.
lily and no a%oDeal, in the strict sense
Of the law. would lie therefrom. But
the case to be certified to the Dis
trict Court. Both parties proceeded
to try the case upon the merits. with
out questioning the jurisdiction. The
subject-matter of the action was such
Jurisdiction to airy. The parties sub.
HilltSd themselves WITHOUT NucSllOH
to the jurisdiction of the Court. Thi:
is not a case Of an attempt to confer
by consent jurisdiction of a subject
matter beyond the Courts jurisdic
ton. Rather it should be regarded a.
a waiver of any technical objection
(which might have been raised as tt
the manner of acquiring jurisdiction
Where parties. without objection
proceed to the trial of a case. the sub
5 hereinafter of which is within til
! origina1 jurisdiction Of the Court, tn
, rule of estoppe1 ought to appl
! against a subsequent questioning Q
= jurisdiction. The modern tendency c
n courts is to break away from technlcs
+ rules of practice. The sooner man
: rules, around which are encircled tn
halo Of t~ilne-honored recognition. ar
i modified, restricted or entirely di:
tcarded. the sooner will courts pei
form the real function for which the