MRS. ANNIE FITCHETT, et al., Appellants, v. W. J. HENLEY, Justice of the Peace, Respondent
Fitchett v. Henley
MRS. ANNIE FITCHETT, et al., Appellants, v. W. J. HENLEY, Justice of the Peace, Respondent.
[No. 1799]
MRS. ANNIE FITCHETT, et al., Appellants, v. W. J. HENLEY, Justice of the Peace, Respondent.
1.Certiorari—Existence of Other Remedy—Appeal.
Oertiorari will not lie where the right of appeal exists.
On Rehearing
1. Landlord and Tenant—Unlawful Detainer—Jurisdiction.
Under the Constitution, art. VI, sec. 8, giving justice courts jurisdiction of actions for the possession of lands, where the relation of landlord and tenant exists, and when such possession has been unlawfully withheld, and Comp. Laws, 3835, authorizing actions in justice courts against a tenant unlawfully holding over, etc., a justice court has jurisdiction to render judgment for plaintiff for the restitution of real estate, for rent due, and for damages for deprivation of the premises, where defendant in his answer admits the execution of the lease and the payment of rent under it, as such admission establishes the relation of landlord and tenant.
2. Landlord and Tenant—Title of Landlord—Estoppel.
A tenant, sued in unlawful detainer, who admits the execution of the lease and payment of rent under it, is estopped from attacking the landlord’s title by proving that the landlord falsely represented that he owned the land when he was without title, and a defense relying on such false representations raises no issue.
3. Landlord and Tenant—Title of Landlord—Estoppel.
As prior possession is prima facie evidence of title, and, in the absence of a better title, is deemed equivalent to title, a tenant, prevented from disputing the landlord’s title, may not show that the landlord had no title by prior possession, or in fee.
4. Landlord and Tenant—Fraud of Lessor—Effect. -
Where a tenant in a lease from a landlord, who falsely represented that he owned the land when he was without title, had all the right he could have had if the landlord had been the owner in fee, and the right of the tenant to hold, retain, or remove improvements placed on the land was not affected by the landlord’s misrepresentations,-the ■ misrepresentations were immaterial as to the rights of the parties.
5. Landlord and Tenant—Fraud of Lessor—Effect.
That the tenant had erected improvements on the premises under a prior lease did not give him any right to repudiate the later lease.
6. Justices of the Peace—Decisions Appealable—Default Judgment.
Where a motion for judgment in the justice court on the pleadings was argued and submitted by consent, with a motion to remove the cause to the district court, and no request to amend, or offer to amend, the answer, which was apparently complete in its allegations, was made, there was in effect a submission by consent on an agreed statement of facts, and the judgment for plaintiff was appealable as against the objection that it was a default judgment.
7. Justices of the Peace—Jurisdiction—Amount in Controversy.
Under Constitution, art. VI, sec. 8, providing that justice courts shall not have jurisdiction where the amount, in dispute is a money demand, and, exclusive of interest, exceeds $300, a judgment in a justice court for $396 treble damages for a tenant wrongfully withholding possession of the premises, and for $100 rent due, is void because beyond the jurisdiction of the court.
8. Justices of the Peace—Appeal—Jurisdiction of District Court.
The district court, on appeal from a justice’s judgment, has the same jurisdiction as existed in the justice court, and' a judgment of a justice court, which is void because for a greater amount than a justice has jurisdiction to render, is not appealable.
9. Justices of the Peace—Certiorari—Existence of Remedy by Appeal.
Certiorari lies to annul a justice court judgment, void because in excess of the jurisdiction of a justice court, since there is no right of appeal.
10.Appeal and Error—Disposition of Cause on Appeal—Remission.
The court, on appeal from an order dismissing a writ of certiorari to annul a justice court’s judgment, void because beyond the justice court’s jurisdiction, cannot on the offer of respondent remit a part of the judgment and limit it to a sum within the jurisdiction of a justice court.
Appeal from the District Court of the First Judicial District of the State of Nevada, Esmeralda County; F-. P. Langan, Judge.
Certiorari by Mrs. Annie Fitchett and others against W. J. Henley, Justice of the Peace. From judgment dismissing the writ, plaintiffs appeal.
Affirmed. On petition for rehearing. Former opinion reversed, and judgment below reversed.
The facts sufficiently appear in the opinion.
. James Donovan, for Appellants.
Pyne, Douglass efe Tilden, for Respondent.
By the Court,
Sweeney, J.:
Ben Hazelton commenced an action in unlawful detainer in the Justice Court of Goldfield Township, Esmeralda County, Nevada, against appellants, Mrs. Annie Fitchett, et al. The appellants in this case, who were the defendants, filed an answer setting up title, possession, and the right of possession in the defendants. The plaintiff moved for judgment upon the pleadings, which the court granted. Later on a writ of certiorari was sued out in the district court in and for Esmeralda County to review the action of the justice of the peace. Said writ was granted in May, 1908, and later on a motion was made to vacate and discharge the writ, which motion was submitted to the judge of the district court, and, after argument by counsel for the respective parties, sustained, and from which final judgment discharging the writ appellants appeal to this court, assigning as error the judgment and order of the lower court dismissing said writ of certiorari.
The appellants had the right of appeal from the judgment rendered against them in the justice court to the district court. The law is well established that a writ of ceHiorari will not lie where the right of appeal exists. (Chapman v. Justice Court, 29 Nev. 154, and authorities therein cited.)
The judgment and order of the lower court are affirmed.