CHARLES H. PETERS, Appellant, v. JOHN P. JONES, et al., Respondents
Peters v. Jones
CHARLES H. PETERS, Appellant, v. JOHN P. JONES, et al., Respondents.
[No. 1606.]
CHARLES H. PETERS, Appellant, v. JOHN P. JONES, et al., Respondents.
Appear and Error — Orders Appeadable — Change of Venue. As the provision of Stats. 1865, p. Ill, expressly authorizing an appeal from an order granting or refusing a change of venue, was omitted from Comp. Laws, 3422, which enumerates the judgments and orders appealable, no appeal will lie upon such an order. ( Eitzseradd, J., dissenting.)
Appeal from the First Judicial District Court, Ormsby County; C. E. Macb, Judge.
Action between Charles H. Peters and John P. Jones. From an order changing the place of trial, Peters appealed. •
Dismissed.
Trenmor Coffin, for Appellant:
I. An order changing the place of trial of a cause is an appealable order. (Practice Act of 1861; Stats. 1861, sec. 285, p. 363; Comp. Laws, 2513; Table Mt. Co. v. Waller’s-Defeat- 31. Go., 4 Nev. 220; Elamy. Griffin, 19 Nev. 442; Sup. Ct. Rule XXIII, Nev. Repts. vols. 3-24.)
II. Under the old practice act of 1861 (p. 363, sec. 285) the right of appeal was limited to " an order refusing to change the place of trial of an action or proceeding, after a motion is made therefor, in the eases provided by law, or on the ground that a judge is disqualified from hearing or trying the same.”
III. In "An act concerning the courts of justice of this state, and judicial officers,” approved January 26, 1865, the right of appeal was enlarged to include an order granting a change of venue. Section 6 of that act is Section 2513, CompiledLaws, and is as follows: "2513. Sec. 6. The supreme court shall have jurisdiction to review upon appeal: First,
a judgment in an action or proceeding, commenced in a district court, when the matter in dispute is embraced in the general jurisdiction of the supreme court, and to review upon appeal from such judgment any intermediate order or decision involving the merits and necessarily affecting the judgment; second, an order granting or refusing a new trial in such cases; an order granting or refusing to change the place of trial of an action or proceeding after motion is made there for in the cases in which that court has appellate jurisdiction, and from an order granting or refusing to grant an injunction or mandamus in the case provided for by law.” This section is still the law, and under it this court has entertained an appeal taken immediately and directly from such an order and in a case which is the precise counterpart of the case at bar. (Flam v. Griffin, 19 Nev. 442.)
IY. There is a dictum to the contrary in State v. Slum, 21 Nev. 224. The statement in 21 Nev. 224 is purely dictum. In that case there was no direct appeal from the order, and the only question before the court was as to whether an order granting (not refusing) a change of place of trial could be reviewed upon an appeal from a final judgment. This question was properly decided in the affirmative under Sections 2513 and 3433 of the Compiled Laws. It is apparent that the learned judge who uttered this dictum had not carefully examined the statutes; he said: "Under our present practice act, however, such an order is not appealable (Gen. Stats. 3352). * * * When Talle,Mt. G. &S.M. Go. v. Waller’s Defeat S. M. Go., 4 Nev. 218, was decided, the statute made such orders appealable.”
W. F. F. Deal, for Respondents:
I. Section 21, paragraph 3116, provides: "The court
may, on motion, change the place of trial in the following cases: First, when the county designated in the complaint
is not the proper county.”
On Petition eor Rehearing.
Trenmor Goffin, for Appellant:
I. The decision in this case as filed by the majority of the court must at best rest upon the assumption of a doubtful and remote repeal by implication of Section 2513 of the Compiled Laws of 1900. To hold such repeal by implication will work great hardship and expense upon litigants and upon the public generally which may have occasion or necessity of coming into court, in this: That, as in this case, it may compel parties by a long and laborious and expensive trial to litigate a case, when after judgment is rendered it may be subject to reversal by reason of having been tried in the wrong court. Such a case occurred in State v. Shaw, 21 Nev. 222, aud may occur in this and in innumerable cases to arise in the future; whereas, if such appeals should continue to be allowed as they have heretofore been allowed, the time, labor and expense of such trials would be avoided. (Table Mt. G. & S. M. Go. v. Waller’s Defeat Mg. Go., 4 Nev. 220; JElam v. Griffin, 19 Nev. 442.)
II. "The intention of the legislature must be found, if possible, within the statute itself — that is, in the words which the legislature has employed. Outside of the statute, we are to consider the mischiefs it was intended to suppress, or, as the case may be, the object or benefits to be thereby attained.” (.Maynard v. Johnson, 2 Nev. 25-7.)
III. "When a court is in doubt about the construction of a statute, it will undoubtedly look to the effect to be produced by one or the other of two constructions, and endeavor to construe the law so that its operation may be beneficial and not oppressive.” (O’Neil v. N. Y. M. Go., 3 Nev. 148.)
IY. " There can be no doubt but that whenever the interpretation of a statute or constitution in a certain way will result in manifest injustice, courts will always scrutinize the act or constitution closely to see if it will not admit of some other interpretation; for it is not to be supposed that any legislative body passed an act for the purpose of doing a manifest wrong.” (State v. Kruttschnitt, 4 Nev. 201.)
Y. Section 2513 of the Compiled Laws has never been repealed, unless by implication, which is not favored in the law or by the courts. In the majority opinion of the court it said: "Under our former practice act, as amended in 1865 (Stats. 1865, p. Ill), an order granting or refusing to change the place of trial of an action or proceeding was appealable (Comp. Laws, 2513).” (Tal) le Mt. G. & S. M. Go. v. Waller’s Defeat S. M. Co., 4 Nev. 218.)
YI. " The rule that courts are bound to uphold the prior law, if it and a subsequent one may subsist together, or if it be possible to reconcile the two together, is well settled. (McGool v. Smith, 1 Black, 470; Endlich on Interpretation of Statutes, sec. 210, see the numerous authorities cited by note 1.) Unless the latter statute is manifestly inconsistent with and repugnant to the former, both remain in force. (13 N. J. Oh. Rep. 290, and cases cited.) A general statute without negative words will not repeal the particular provisions of a former one unless the two acts are irreconcilably inconsistent. (State ex rel. DunMe v. Bearcl, 21 Nev. 218.) The repeal, total or partial, of statutes by implication is not favored. As to this rule there can be no difference of opinion, and further authorities need not be cited.” (State v. LaGrave, 23 Nev. 379-80.)
VII. Long usage and custom and the acquiescence in a given statutory construction will always incline courts to adopt and follow such construction unless the same is so clearly wrong that it cannot be upheld. (Sedgwick on Statutory Construction, pp. 215, 217; Banlcv. Mersereau, 3 Barb. C. 530, 577.) Section 2513 of the Compiled Laws has for more than thirty -five years been recognized as a valid and existing statute in this state by the bench, bar and public. Since the statute was originally enacted in 1865 there have been three authorized compilations of the laws of this state: Bonnifield & Healy, 1873; Baily & Hammond, 1885; IT. C. Cutting, 1900. Each of these compilations contained the section in question.
VIII. The supreme court has adopted a wholesome rule providing for an expeditious and simple appeal from orders granting or refusing a change of place of trial, and has published the same in every volume of its decisions published for the last thirty-three years. (Vols. 3-25, inch, Supreme Court Rule XXIII.) Two appeals have been brought up and entertained by this court under this rule and statute: Table Mt. Go. v. Waller’s Defeat Go., 4 Nev. 220; Blam v. Griffin, 19 Nev. 442.)
By the Court,
Belknap, J.:
This is an appeal from an order changing the place of trial of this action.
Under our former practice act, as amended in 1865 (Stats. 1865, p. 111), an order granting or refusing to change the place of trial of an action or proceeding was appealable to this court. (Section 2513, Comp. Laws; Table Mountain Gold & Silver Min. Go. v. Waller's Defeat Silver Min. Co., 4 Nev. 218, 97 Am. Dec. 526.)
When the present practice act was adopted in 1869, it was provided in the first section of title 9, upon the subject of appeals in civil actions, that "a judgment or order in a civil action except when expressly made final by this act may be reviewed as prescribed by this title and not otherwise." (Section 3422, Comp. Laws.)
Section 3425 enumerates the judgments and orders from which an appeal may be taken. They are: "First — From a final judgment in an action, or special proceedings commenced in the court in which the judgment is rendered, within one year after the rendition of judgment. Second— From a judgment rendered on an appeal from an inferior court, within ninety days after the rendition of the judgment. Third — From an order granting or refusing a new trial, from an order granting or dissolving an injunction, and from an order refusing to grant or dissolve an injunction, from an order dissolving or refusing to dissolve an attachment, and from any special order made after the final judgment, within sixty days after the order is made and entered in the minutes of the court. Fourth — From an interlocutory judgment or order in cases of partition which determines the right of the several parties, and directs partition sale, or division to be made, within sixty days after the rendition of the same."
The above provisions omit the provision contained in the prior law that an appeal may be taken from an order granting or refusing to change the place of trial.
Such orders, therefore, are not appealable by the terms of the statute. This was the ruling in the case of State v. Shaw, 21 Nev. 222, 29 Fac. 321.
A contrary ruling was made in the case of Mam v. Griffin, 19 Nev. 442, 14 Pac. 582. In that case the attention of the court was not directed to the change that had been made in the statute.
It is ordered that the appeal be dismissed.