Ex Rel. LEVY & ZENTNER CO. v. JUSTICE COURT
Levy & Zentner Co. v. Justice Court
Ex Rel. LEVY & ZENTNER CO. v. JUSTICE COURT
Ex Rel. LEVY & ZENTNER CO. v. JUSTICE COURT
No. 2687
February 21, 1925.
233 Pac. 40.
M. B. Moore, for Petitioner:
James D. Finch, for Respondents:
OPINION
By the Court,
Coleman, C. J.:
This is an original proceeding in certiorari to review the proceedings of the justice's court for Reno Township, Washoe County, Nevada, and Charles E. Bull, as justice of the peace.
On the 20th of November, 1924, an order was entered by this court directing the respondents to certify all the proceedings in the suit hereinafter mentioned to this court, and that respondents "desist from proceeding in the matter so to be reviewed, and that execution be stayed in said cause."
The records of the respondents show that on or about April 1, 1924, one L. A. Murphy filed with said court a complaint in an action entitled "L. A. Murphy, Plaintiff, v. A. Levy & J. Zentner Co., Defendants," wherein the plaintiff sought to recover a balance alleged to be due from the "defendants" for goods, wares, and merchandise sold in the sum of $267.98. On the same day the justice issued a summons in regular form, showing a return by the constable reading as follows:
"I hereby certify that I received the within summons on the 1st day of April, 1924, and personally served the same by delivering to and leaving with W. E. Luce, Jr., resident business agent of the defendant named herein, personally, a true copy of this summons, in Reno Township, Washoe County, this 1st day of April, 1924.
T. F. Murray, Constable."
On April 9, 1924, no appearance having been entered to resist said action, the respondents entered a default and j udgment in the following words:
"Judgment is hereby rendered and entered in favor of the plaintiff, and against the defendant A. Levy and J. Zentner (and each of them) in the sum of $267.98
On April 12, 1924, an execution was issued in favor of L. A. Murphy and against A. Levy & J. Zentner Company, a corporation, in the sum of $267.98 and costs, pursuant to which certain property was levied upon.
Thereafter the petitioner herein made a motion in the respondent court to vacate and set aside the judgment rendered, which motion was denied, and at the same time petitioner tendered an answer to the complaint.
On July 31, 1924, the respondents amended, or undertook to amend, the judgment so as to constitute it a judgment against this petitioner as a corporation instead of against A. Levy and J. Zentner as individuals.
It has been held repeatedly by this and other courts that nothing is presumed in favor of the jurisdiction of courts of limited jurisdiction, and that it must be made to appear affirmatively that such a court has jurisdiction before it can render a valid judgment. State ex rel. Jones et ux. v. Bonner, Justice of the Peace, 43 Nev. 95, 181 P. 586.
Counsel for respondents concedes that such showing does not appear from the original return made by the constable. With a view of curing the jurisdictional defect, the constable amended his return on the 8th day of December, 1924, after this proceeding was initiated, in defiance of the order of this court staying all proceedings. The judgment being void as originally rendered and as amended, it could not be vitalized by amendment subsequently made.
It is clear that the so-called judgment, both as originally rendered and as amended, is void, and that no valid execution could be issued thereon.
Counsel for respondents contends that, pursuant to section 61 of our civil practice act (Rev. Laws, sec. 5003), the respondent had authority to amend the judgment after the filing of the motion to vacate and the tendering of the answer. The section mentioned reads :
"In all actions brought on contract, the defendants may be sued by the name or style under which the contract was made, and upon its being shown on the trial who are the persons of whom the name or style are descriptive, judgment may be rendered against them."
From no standpoint can this provision aid respondents. It pertains to cases in which there was a trial. There was no trial in this case. By the appearance of this petitioner and the tendering of its answer to the complaint the respondents acquired jurisdiction to proceed in an orderly way thereupon; hence the court now has jurisdiction to try the case.
It is ordered that the former order of this court be modified so as to allow the respondents to proceed, save and except as to-the so-called judgment, and amended judgment, and the execution issued thereupon, and as to them all further proceedings are hereby ordered stayed. Petitioner to recover costs.