P. D. McLEOD, Relator, v. THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF NYE, and MARK R. AVERILL, Judge Thereof, Respondents
McLeod v. District Court of the Fifth Judicial District of the State of Nevada ex rel. County of Nye
Norcross, C. J.: I concur.
P. D. McLEOD, Relator, v. THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF NYE, and MARK R. AVERILL, Judge Thereof, Respondents.
[No. 2200]
P. D. McLEOD, Relator, v. THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF NYE, and MARK R. AVERILL, Judge Thereof, Respondents.
[157 Pac. 649]
1. Certiorari — Function of Writ — Act of District Court,
On certiorari to review the act of the district court in striking items from the cost bill, the scope of the inquiry permissible is that of jurisdiction, and, if the act of the district court was within its jurisdiction, the inquiry ceases, and the writ has no function to perform; an authorized act of a court not being reviewable by certiorari.
2. Costs — Appeal from Justice’s Court — Statutes.
Where a case comes to the district court on appeal from justice’s court, costs in the district court do not follow as of course, but come under the provisions of Rev. Laws, 5380, whereby the district court is authorized and directed to exercise its discretion in cases other than those mentioned in section 5377, prescribing allowance of costs as of course.
3.' Costs — Objection to Bill or Items — Time.
Until the discretion of the district court on appeal from justice’s court was exercised in fixing costs, there was nothing in the statutes or procedure preventing the party against whom the costs might be assessed from appearing to object to the whple cost bill, or any items therein.
4. Certiorari — Discretion of Court — Objections to Cost Bill.
In an action in the district court on appeal from justice court, where by statute it was the province and duty of the court to exercise its discretion in allowing items of cost before the same could become part of the judgment, even though no objections were filed, error in refusing to strike objections to the cost bill is not reviewable on certiorari.
Original proceeding. Certiorari by P. D. McLeod, relator, against the District Court of the Fifth Judicial District in and for the County of Nye, and Mark R. Averill, Judge thereof.
Writ dismissed.
[Petition for rehearin g pen din g. ]
P. M. Bowler and William Forman, for Relator:
The lower court' was without jurisdiction to consider and rule upon defendant’s so-called objection to the cost bill and motion to retax costs, no ground therefor having been specified nor good cause shown for the exercise of any discretionary power of the court. To invoke the exercise of discretionary jurisdiction, it is imperatively necessary that such a motion be noticed for hearing and good cause be shown.
Discretion can be exercised only in the absence of positive law or fixed rule when in furtherance of justice, upon good cause shown, and upon notice to the adverse party. (State v. Wood, 28 N. J. Law, 560; Goodwin v. Prime, 42 Atl. 785; The Styris v. Morgan, 186 U. S. 1, 46 L. Ed. 1027; Rev. Laws, 5084.)
The lower court had no discretion in the matter of costs. In this character of case, the prevailing party is entitled to costs "as of course.” There was a gross abuse of discretion, and its exercise was and is prohibited by positive statute. (Rev. Laws, 1995, et seq.; Rev. Laws, 200, 2001, 2012, 5377, 5379, 5387; Bennet v. Kroth, 1 Am. St. Rep. 248; Benson v. Brann, 134 Cal. 42; Fox v. Hale & Norcross M. Co., 122 Cal. 219; Quillahan v. Morrissey, 73 Cal. 297.)
Certiorari is the only appropriate remedy where the court was, as in this case, without jurisdiction. (Territory v. Doan, 60 Pac. 892; L. A. City W. Co. v. Superior Court, 124 Cal. 386.)
The most important office and function of the writ of certiorari is the keeping of inferior courts and tribunals within proper bounds against an assumption of jurisdiction. (4 Ency. PI. & Pr. 262; People v. Board Delegates, 14 Cal. 479; Chapman v. District Court, 29 Nev. 159; Peacock v. Leonard, 8 Nev. 84; Martin v. District Court, 13 Nev. 85; People v. Board, 39 NY. 81; State v. District Court, 46 Pac. 260; 6 Cyc. 745, 746; State v. Guinotte, 50 L. R. A. 787; Harris v. Barber, 128 U. S. 366, 32 L. Ed. 697; In Re Wixom, 12 Nev. 223.)
The power exercised by the lower court was unauthorized, a usurpation of jurisdiction, and deprivation of relator of a property right, which was his of course; the order complained of was confiscatory, in violation of both statutory and constitutional rights, and absolutely null and void. (Coker v. Superior Court, 58 Cal. 177; Maurer v. Mitchell, 52 Cal. 291; Dalzell v. Superior Court, 67 Cal. 453, 454; Hall v. Superior Court, 68 Cal. 24; Levy v. Superior Court, 66 Cal. 292; Matthews v. Superior Court, 68 Cal. 631; Carlson v. Superior Court, 70 Cal. 628; Steel v. Steel, 1 Nev. 27; State v. Commissioners, 5 Nev. 317; Morgan v. Commissioners, 9 Nev. 360; Burris v. Kennedy, 108 Cal. 339.)
An order of the district court, which it is without jurisdiction to make, is subject to review and annulment by certiorari. (State v. District Court, 46 Pac. 260.)
Where there is a want of jurisdiction, the writ will not be denied, especially where there are errors or abuses going to the jurisdiction complained of. (6 Cyc. 745, 746; State v. Guinotte, 50 L. E. A. 787.)
Where there is an erroneous exercise of jurisdiction, a writ of review will issue. (Harris v. Barber, 129 U. S. 126, 32 L. Ed. 697; 6 Cyc. 750, 751; In Re Wixom, 12 Nev. 219; State v. Snohomish, 39 Pac. 644; In Re Rourke, 13 Nev. 253.)
■ When the subject-matter, such as costs, upon which the jurisdiction of the court rests, is limited and restricted by statute, the court must look to that statute for its jurisdiction, and cannot by its mere decision, acquire jurisdiction over a matter therein denied to it. A judgment or order in excess of jurisdiction may be reviewed on certiorari. (Baker v. Superior Court, 71 Cal. 583, 12 Pac. 685; Gibson v. Superior Court, 83 Cal. 643, 24 Pac. 152; Jackson v. Boy, 16 South. 290; Maynard v. Bailey, 2 Nev. 313; State v. Washoe County, 5 Nev. 317; State v. Humboldt County, 6 Nev. 100; Hetzell v. Commissioners, 8 Nev. 359; Maxivell v. Rives, 11 Nev. 213; In Re Rourke, 13 Nev. 253; Esmeralda County v. District Court, 18 Nev. 438; Levan v. District Court, 43 Pac. 574; North v. Joslin, 26 N. W. 810.)
The leading object of the writ of certiorari is to keep inferior tribunals within the bounds of their jurisdiction, without or in excess of which certiorari lies to annul their proceedings. (State v. Washoe County, 5 Nev. 267; Gamble v. Silver Peak Co., 35 Nev. 326; Floyd v. District Court, 36 Nev. 363.)
J. K. Chambers, for .Respondents:
The demurrer to the petition should be sustained. The application shows on its face that the lower court had jurisdiction over both the parties and the subject-matter in the case under review; and if any error or irregularity was committed, it cannot be reviewed in this proceeding. The application shows that a clear legal duty was imposed by law upon respondent which was purely ministerial, and in which respondent was precluded from exercising any discretion; and that relator had a plain, speedy, and ample remedy by proper motion in the lower court, and a right of action against the defendant in the case under review for his costs that were allowed by law.
The respondent having had jurisdiction to hear and determine the question of costs and to settle the memorandum, it is immaterial in this proceeding whether its decision was right or wrong, and its decision cannot be reviewed on certiorari. (Phillips v. Welch, 12 Nev. 158; Quinn v. District Court, 16 Nev. 76; Sheer v. Superior Court, 96 Cal. 653; History Co. v. Light, 97 Cal. 56; In Re Wixom, 19 Nev. 219.)
All want of notice or any defect in the notice to retax costs was waived by the relator in his general appearance at the hearing of said motion. Having voluntarily submitted himself to the jurisdiction of the court, relator expressly waived any objections to the regularity of the proceedings in regard to the retaxing of costs, and any objection to the want of notice of regularity of service. {State v. McCullough, 3 Nev. 202; Union Pacific v. Moffett, 12 Colo. 310; Shell v. Leland, 45 Mo. 289; Ankeney v. Blackenson, 7 Or. 407; Lane v. Ohio River R. R., 14 S. E. 123; Morris v. Miller, 40 Pac. 60; Zeigler v. People, 164 Ill. 53; Wilsie v. Maynard, 21 Iowa, 107; Mander-schile v. Plymouth, 69 Iowa, 270; Hacker v. Petie, 2 Or. 89; Hecker v. Fadie, 2 Or. 89.)
The district court has jurisdiction to settle and allow costs. Jurisdiction as applied to a particular claim or controversy is the power to hear and determine that claim or controversy; and if there is any error in not allowing costs to relator in the lower court, it was not an excess of jurisdiction and the action cannot be reviewed upon certiorari. (State v. District Court, 23 Nev. 245; State v. District Court, 16 Nev. 75; State v. District Court, 26 Nev. 256; State ex rel. Thompson v. District Court, 23 Nev. 243; State v. Pike, 32 Nev. 109; State v. District Court, 26 Nev. 253.)
Mandamus is the proper remedy to compel a judicial officer to perform a ministerial act, or to perform a duty imposed upon him by law where he has no discretion. (State v. Murphy, 19 Nev. 89; State v. Curler, 4 Nev. 445; Humboldt County v. Churchill County, 6 Nev. 30; Taylor v. Salt Lake Co., 2 Utah, 405; Hudson v. Parker, 39 U. S. 424; Commonwealth v. McLaughlin, 14 Atl. 377; People v. Hubbard, 22 Cal. 34; Manor v. McCall, 5 Ga. 522; Peoples. Hallett, 1 Colo. 352; State v. Fisher, 21 S.W. 503.)
The remedy by certiorari would not be either plain, speedy, or adequate. Mandamus is the proper remedy where a ministerial duty is imposed upon a public officer by law and where the officer has no discretion. In this case the affidavit of relator states that there was a plain legal duty imposed by law upon the respondent .to tax the costs in this action against the defendant in the lower court. The affidavit also shows that the relator had a clear legal right to the costs. This being so, we have a case where a clear legal duty imposed by law rested upon the respondent to perform a specific act in which he had no discretion, and we have also a clear legal right resting in the relator. In such a case mandamus is the. only remedy that could give adequate relief to the relator. (State v. Board of Commissioners, 30 Nev. 477.)
Taxation of costs in the lower court cannot be reviewed on certiorari. (Quinn v. District Court, 16 Nev. 76.) Section 5690, Revised Laws, provides that the writ of certiorari shall not be extended further than to determine whether the inferior tribunal has regularly pursued its authority, and does not permit inquiry into any irregularity or question beyond that of jurisdiction. {Knapp v. District Court, 31 Nev. 44; Maynard v. Bailey, 2 Nev. 313; Phillips v. Welch, 12 Nev. 175; C. P. R. R. Co. v. Placer County, 43 Cal. 312; Monreal v. Bush, 46 Cal. 670; Quinchará v. Board, 133 Cal. 664; People v. Lumby, 29 Cal. 632; In Re Wixom, 12 Nev. 209.)
On certiorari to review an order made by a lower court, the only question that can be considered at the hearing is that of jurisdiction. Any error in the order complained of, however erroneous and flagrant, cannot be considered in this proceeding. The affidavit for the writ fails to show that the lower court exceeded its jurisdiction; at most, all that can be claimed is that there were errors or irregularities in the exercise of jurisdiction. The excess of jurisdiction claimed by relator pertains exclusively to the action of respondent regarding the memorandum of costs filed in the lower court and the action taken by respondent thereon. The ruling of the lower court on a memorandum of costs cannot be reviewed on certiorari, as no question of jurisdiction can ever arise concerning the subject-matter of the inquiry. (Miller v. Highland, 91 Cal. 103; Quinn v. District Court, 16 Nev. 75; Phillips v. Welch, 12 Nev. 158; In Re Wixom, 12 Nev. 219; State v. Mack, 26 Nev. 253; State v. District Court, 23 Nev. 243; Sullivan v. Railroad, 75 Pac. 767; Fox v. Hale & Nor cross, 122 Cal. 219.)
By the Court,
McCarran, J.:
This is a proceeding in certiorari. The petitioner was plaintiff in an action commenced in the justice court of Tonopah township against E. E. Bertram for the sum of $90, balance alleged to be due for services rendered. Judgment in the justice court was rendered in favor of the defendant, Bertram, and from that judgment petitioner appealed to the district court of the Fifth judicial district of the State of Nevada. In a trial held in that court before a jury verdict was rendered in favor of the plaintiff, petitioner herein, for the amount claimed. On motion of the defendant, Bertram, the verdict of the jury was set aside, and a new trial was granted by the district court. The case being set down for trial on the 27th day of September, 1915, the following proceedings, as set forth in the minutes of the court, took place:
" P. D. McLeod, Plaintiff, v. E. E. Bertram, Defendant.
" The above-entitled case comes on for trial at this time before the court.
"William Forman appears as attorney for plaintiff, and J. K. Chambers appears as attorney for defendant.
"The defendant confesses judgment for $90.
" It is ordered, upon motion of counsel for plaintiff, that judgment for $90 and costs be entered in favor of the plaintiff against the defendant, reserving, however, to the defendant the right to proceed as to matter of costs."
Pursuant to the foregoing proceedings, the court entered judgment in the form following:
"This cause coming on regularly for trial on the 27th day of September, 1915, William Forman appearing as counsel for plaintiff, and J. K. Chambers for the defendant, a trial by jury having been expressly waived by counsel for the respective parties, and the defendant, by his attorney in open court, consented that judgment be entered against the defendant for the sum of ninety ($90) dollars and costs, and the plaintiff in open court accepting said offer.
"Wherefore, by reason of the law, it is ordered, adjudged, and decreed that the plaintiff, P. D. McLeod, do have and recover of the defendant, E. E. Bertram,, the sum of ninety ($90) dollars, together with plaintiff's costs and disbursements incurred in this action, amounting to the sum of_($_) dollars.
"Judgment rendered this 27th day of September, 1915.
"Mark R. Averill, District Judge."
On the date of the rendition of this judgment, and after the entry thereof in the form above set forth, plaintiff, petitioner herein, filed and served his cost bill, claiming costs in the sum of $121.70. Three days thereafter, to wit, on the 30th day of September, 1915, the attorney for the defendant served upon the attorney for the plaintiff an instrument without entitlement, setting forth the following:
"Now comes the defendant in the above-entitled action and objects to the memorandum of costs filed in said cause, on the ground that the plaintiff is not entitled to any statutory costs, for the reason that the statute makes no provision for costs under the contingencies of this case; that the costs in the case do not follow the judgment, and the plaintiff is only entitled to such costs as may be allowed by the court, and that the costs in this case are entirely under the control of the court, and that he can in his discretion refuse to allow any costs whatever, for the reason that the same is in the district court on appeal from the justice court of Tonopah township, and the statute allows only such costs as are approved and allowed by the court. "
While the instrument quoted above was served on attorneys for petitioner on the 30th day of September, the same was not filed with the clerk of the district court until October 2,1915. On the last-named date, the parties being present in court by their respective attorneys, a motion was made in open court by plaintiff, petitioner herein, to strike from the records the paper so filed, contents of which we quoted above, for the reason that no motion and notice of motion to retax costs had been filed and served in the case, and that the paper purporting to make objections to the cost bill filed by the plaintiff was no such document as could give the court jurisdiction. The motion thus made was overruled by the court. The matter of the allowance of costs and the allowance by the court of the several items set forth in petitioner's cost bill were argued and submitted to the court. On October 4,1915, the court, having taken the matter under advisement, ordered that all the items contained in plaintiff's (petitioner's) cost bill be stricken out, excepting one of $17.25, being the clerk's fees.
The scope of the inquiry permissible to this court is limited to that of jurisdiction. If the act of the district court in striking the items from the cost bill was within the jurisdiction of that tribunal, then our inquiry ceases, and the 'writ of certiorari has no function to perform.
The procedure in such matters haying been prescribed by legislative enactment, which enactment is a part of our civil practice, we turn there first for guidance.
Section 5887, Revised Laws, being section 445 of the Civil Practice Act, prescribes:
"The party in whose favor judgment is rendered, and who claims his costs, must deliver to the clerk, and serve a copy upon the adverse party, within five days after the verdict or notice of the decision of the court or referee, or such further time as the court or judge may grant, a memorandum of the items of his costs and necessary disbursements in the action or proceeding. Within three days after service of a copy of the memorandum, the adverse party may move the court, upon two days' notice, to retax and settle the costs, a copy of which motion shall be filed and served on the prevailing party claiming costs. Upon the hearing of the motion the court or judge in chambers shall settle the costs."
Section 5377, Revised Laws (section 435, Civil Practice Act), prescribing when costs shall be allowed to plaintiff as of course, does not apply here, and none of its terms or provisions have any bearing upon the case at bar. Section 5380, Revised Laws (section 438, Civil Practice Act), in part sets forth:
" In other actions than those mentioned in section 435, costs may be allowed or not, and if allowed, may be apportioned between the parties, or on the same or adverse sides in the discretion of the court. "
In the light of the foregoing statute, we must conclude that costs in the district court, in a case where, as in this case, it comes to that court on appeal from the justice court, do not follow as of course, but rather come under the provisions of the statute whereby the district court is authorized and directed to exercise its discretion. Not only is the foregoing conclusion to be arrived at from the statute itself, but the record in this case as set forth in the proceedings of the court, wherein it was ordered on motion of counsel for plaintiff that judgment be entered against the defendant, discloses that to the defendant was reserved the right to proceed as to the matter of costs.
In view of the nature of the case in the lower court, it makes little difference, as we view it, as to what may-have been the substance of the instrument filed by way of objection to plaintiff's cost bill, and, as we will hereafter discuss, it makes little difference when the same was filed or served, so long as the filing and service of the same was prior to the time at which the matter and amount of costs was finally determined by the district court. As to whether or not the plaintiff was entitled to any costs or was entitled to certain specific items of costs was a matter entirely within the discretion of the district court. Until that discretion had been exercised the judgment, in so far as the burden of costs was concerned, was incomplete. Until the discretion of the district court had been exercised in fixing the costs, we find nothing in the statute or in our procedure which would, as we view it, prevent the party against whom the costs might be assessed from appearing for the purpose of objecting to the whole cost bill or any items therein. (Bringgold v. Spokane, 19 Wash. 335, 53 Pac. 368.) Our reasoning in this respect must not be construed as applying to cases where, as prescribed by the statute, costs are to be allowed as a matter of course, for in such cases a different rule would apply.
We have been referred to the case of Brande v. Babcock Hdw. Co., 35 Mont. 256, 88 Pac. 949, 119 Am. St. Rep. 858, wherein, following the decision in King v. Allen, 29 Mont. 5, 73 Pac. 1107, it was held that a memorandum of costs duly verified and filed within time is prima facie evidence that the items were necessarily expended and are properly taxable, unless, as a matter of law, they appear otherwise. But it must be observed that in that case the court very properly said:
"Under section 1866 of the Code of Civil Procedure, the items complained of could be taxed, and it devolved upon the plaintiff to show that they were not properly taxed. "
The case arose in the district court of Montana, and by its very nature was one in which under the Montana act costs would accrue as a matter of course. Where, as in the matter at bar, the discretion of the court constitutes the intervening element in the establishment of costs, we know of no rule such as that asserted in the case of Brande v. Babcock Hdw. Co., supra, that would apply.
The matter at bar is to be distinguished from the case of Radovich v. Western Union Tel. Co., 36 Nev. 341, 135 Pac. 920, 136 Pac. 704, in that in the Radovich case the trial court erroneously entertained and granted a motion to strike an entire cost bill, objections to which we held to have been waived. That act we held to be in excess of jurisdiction. In this case, however, as the record discloses, the court considered the instrument constituting the cost bill of petitioner, and in the exercise of its discretion, as authorized by the statute, struck therefrom certain items the allowance of which was not a matter of statutory right, but solely within the discretion of the court. The matter of the court having refused to strike the objections to the cost bill in this case, even though it should be admitted to be erroneous, would not affect the proceedings in view of the fact that under the provision of the statute quoted it was the province and duty of the court to exercise its discretion in allowing items of cost before the same could become a part of the judgment, even if no objection had been filed.
The judgment in this case was filed in blank as to the item of costs. The matter of filling in that absent element in the judgment was, under the statute, and indeed under the minute order as made and entered by the trial court at the time of the entry of judgment, a matter with reference to which the trial court was to exercise its discretion. The trial- court, as the record discloses, considered the cost bill submitted by petitioner, and struck therefrom certain items, retaining certain others. The exercise of its discretion on the part of the court was an authorized act, and as such, is not reviewable by certiorari. (6 Cyc. 756.) That the whole proceeding was within the jurisdiction of the trial court, and that in the exercise of its discretion the court did not exceed its jurisdiction, is to our mind manifest.
The writ should be dismissed. It is so ordered.
Norcross, C. J.: I concur.