FERGUSON v. CAMINO Et Al.
Ferguson v. Camino
DucKer, J.: I concur.
FERGUSON v. CAMINO Et Al.
FERGUSON v. CAMINO Et Al.
No. 2955
April 5, 1932.
9 P.(2d)1005.
Hoto arel E. Browne, for Appellants:
W. R. Reynolds, for Respondent:
OPINION
By the Court,
Sanders, J.:
This action was begun in the justice court of Eureka township in and for Eureka County, to recover actual and exemplary damages and an attorney's fee for the alleged unlawful herding and grazing of defendant's sheep upon plaintiff's land.
The case was formerly before us on certiorari, wherein it was held that, while the justice court had jurisdiction over the subject matter and of the parties, a default judgment in a justice court, without proof of amount of damages, was in excess of jurisdiction. Camino v. Lewis, 52 Nev. 202, 284 P. 766. Aside from other procedural steps taken after the ruling on certiorari, the defendants filed a verified answer to the complaint, in which they averred that plaintiff was not the owner of the land described in his complaint, and that the land was situated in Lander County and not Eureka County. The answer made it necessary, under section 9268, N. C. L., for the justice to suspend all further proceedings and certify the pleadings to the clerk of the district court of Eureka County, which was accordingly done at the instance of defendants. After the case had been transferred to the district court it was tried to the court without the assistance of a jury upon issues made by the pleadings as certified. After a full hearing the court found plaintiff to be the owner of the land described in his complaint; that the land was situated in Lander County, and that defendants were guilty of the alleged trespass. Upon its findings of fact and conclusions of law, the court, over defendants' objections, rendered judgment in favor of the plaintiff and against the defendants, for the sum of $20 damages and for the additional sum of $200 attorneys' fee, together with costs taxed at $180.65.
The defendants have appealed from the judgment on the judgment roll alone. The single question presented is one of jurisdiction. Defendants contend and insist that, the district court having found the land trespassed upon to be in Lander County and not in Eureka County as alleged in the complaint and denied in the answer, the district court had no jurisdiction other than to dismiss the action. We are not in accord with this contention. It is conceded or must be conceded that, upon the filing of the defendants' answer, the case was properly transferred to the district court. Tobin v. Gartiez, 44 Nev. 179, 191 P. 1063. From the time of the filing of defendants' answer the district court had over the action the same jurisdiction as if it had been commenced therein. Section 9268, N. C. L. On the certification of the pleadings its jurisdiction was original and not appellate. 15 Cal. Jur. 471; 35 C. J. 566, 567. The purpose of . section 9268 is to secure to the district court the right to hear and determine the causes that are placed within its jurisdiction by the constitution, art. 6, sec. 6. Dungan v. Clark, 159 Cal. 30, 112 P. 718. The result of the argument advanced on the part of the defendants is that, the court having found that the land alleged to have been trespassed upon was in Lander County, the justice court had no jurisdiction over the subject matter; therefore none was acquired by the district court on removal. We concede that, if the justice court did not primarily have jurisdiction to hear and determine the action, the certification of the pleadings to the district court did not confer jurisdiction. 35 C. J. 566. In this case, however, the ruling on certiorari established that the justice court primarily had jurisdiction over the subject matter and of the parties. Under the express provision contained in section 9268, N. C. L., it had the same jurisdiction over the action as if it had been commenced therein. Consequently the jurisdiction of the district court, original in character, was not affected by its finding that the land trespassed upon was in Lander County. Counsel for defendants complain that to uphold the judgment would be to deprive defendants of their statutory right to have the case tried in the county where the land was located. If plaintiff brought the action in the wrong county, as alleged in the defendants' answer, their remedy was in the justice court, but, they having procured the transfer of the case to the district court, claiming that its determination necessarily involved title to land, they cannot be heard to assert that the district court lost jurisdiction because of its finding that the land trespassed upon was located in Lander County.
The judgment is affirmed.
DucKer, J.: I concur.