Wiggins v. Henderson

By the Court, Morphy, C. J.: On the 2d day of March, 1894, the following notice was filed with the justice of the peace of Empire township, in the county of Ormsby, State of Nevada: “Carson City, Ormsby county, Nevada, March 1, 1894. I hereby certify that there is a well, not surrounded by a fence, or otherwise secured, in Empire township, Ormsby county, Nevada; said well being located near the slaughter house owned by, or in the possession of, James and William Wiggins; said well being dangerous to persons and animals; and that the cost of fencing or otherwise securing the same against any avoidable *106 accident would be about five dollars. Joseph Langevin.” Said notice appears to have been filed under the provisions of an act of the legislature to secure persons and animals from danger arising from mining and other excavations (Gen. Stats., sec. 290, et seq.), which reads as follows: “ Section 1. Any person or persons, company or corporation, who shall hereafter dig, sink or excavate, or cause the same to be done, or being the owner or owners, or in the possession, under any lease or contract of any shaft, excavation or hole, whether used for mining or otherwise, or whether dug, sunk or excavated, for the purpose of mining, to obtain water, or for any other purpose, within this state, shall, during the time they may be employed in digging, sinking or excavating, or after they have ceased work upon or abandoned the same, erect or cause to be erected, good and substantial fences, or other safeguards, and keep the same in good repair, around such works or shafts, sufficient to securely guard against danger to persons and animals, from falling into such shafts or excavations. “Sec. 2. Any person being a resident of the county and knowing, or having reason to believe, that the provisions of section one of this act are being or have been violated within such county, may file a notice with any justice of the peace or police judge therein, which notice shall be in writing, and shall state: First, the location, as near as may be, of the hole, excavation or shaft; second, that the same is dangerous to persons or animals, and has been left, or is being worked contrary to the provisions of this act; third, the name of the person or persons, company or corporation, who is or are the owners of the same, if known or if unknown, the persons who were known to be employed therein; fourth, if abandoned, and no claimant; and fifth, the estimate cost of fencing or otherwise securing the same against any avoidable accident. “ Sec. 3. Upon the filing of the notice, as provided for in the preceding section, the justice of the peace, or judge of the police court, shall issue an order, directed to the sheriff of the county, or to any constable or city marshal therein, directing such officer to serve a notice, in manner and form as is prescribed by law for the service of summons upon any person or persons, or the authorized agent or agents, of any company *107 or corporation named in the notice on file, as provided in section 2 of this act.” Section 4 provides that the notice shali require the persons to appear before the justice or judge issuing the same, at a time stated therein, not more than ten nor less than three days from the service of said notice, and show to the satisfaction of the court that the provisions of the act have been complied with, and shall notify them that if they fail to appear judgment will be entered against him or them for double the amount stated in the notice on file. All proceedings had therein are to be as prescribed by law in civil cases. It also provides that such persons, in addition to any judgment that may be rendered against them, shall be liable and subject to a fine not exceeding the sum of $100 for each and every violation of the provision of the act, which judgment and fine shall be adjudged and collected as provided by law. Upon filing the notice an order was issued and served upon the defendants, citing them to appear March 10, 1894, and show to the satisfaction of the court that the well had been secured, and further notified them that “if they failed to appear and answer, judgment will be taken against them for double said amount, together with costs and damages.” They did not appear, and thereupon the justice made the following entry in his docket: “And now, on this 10th day of March, A. D. 1894, at 10 o’clock a. m., the court convened, and having given the above defendants one hour longer to appear and answer, they, the above defendants, failed to appear. It is the judgment of this court, after due deliberation, that the above defendants pay to the above plaintiff the sum of $10 and costs of suit and accruing costs, and that each of the above-named defendants shall be fined in the sum of $75, United States gold coin, for violating the provisions of an act entitled 'An act to secure persons and animals from danger arising from mining and other excavations,’ approved February 8, 1866.” Execution was issued on the above entry, and placed in the hands of a constable for its enforcement. Under this state of facts the defendants applied for a writ of certiorari, charging that said entry and judgment are void for the want of jurisdiction. The respondent has demurred to the petition for the writ upon the ground that the petitioners have a *108 plain, speedy, and adequate remedy at law, by appeal to the district court. The usual mode of reviewing judgments rendered by a justice’s court is by appeal, but the judgment in this case was entered upon the default of the relators; therefore there could be no issue of law or fact to try on appeal to the district court, and under such circumstances an appeal will not lie from a judgment of the justice’s court to the district court. (Paul v. Armstrong, 1 Nev. 96; Martin v. District Court, 13 Nev. 90.) The very foundation of a proceeding under this statute is the filing of a notice with the justice, stating that the defendants are the owners of, or in possession of, an excavation, which, in its then unsecured condition, is dangerous to persons or animals. The notice filed in this matter wholly fails in this respect. The statement that the well was located near the slaughter house owned by defendants is very far from alleging the important fact of ownership in them of the well itself. Nowhere throughout the case does it appear that this fact was ever, either by allegation or proof, shown to the justice, and without it we are of the opinion that he never acquired jurisdiction of the case. ■ Under the statute the proceeding is to be against the person or firm owning or in possession of the excavation. If there is more than one of them, they are to be proceeded against jointly. .Judgment may be rendered against them for double the cost of securing the dangerous place, and, in addition, “such persons” may be subjected to a fine not exceeding $100. No matter how many are proceeded against, there can :be but one judgment and one fine, which must not exceed the amount stated. For these reasons, waiving all questions of procedure in 'the case, we think that the justice also exceeded his jurisdiction when he entered a fine of $75 against each of the defendants. We find nothing in the return of the justice to this writ that would or could justify him in entering judgment against the relators and in favor of the state. It is therefore ordered that the proceedings had in the justice court of Empire township on the 10th day of March, 1894, wherein the State of Nevada is named as plaintiff and *109 these relators as defendants, be, and the same are, declared void, and the same are hereby set aside, and that relators do have judgment for their costs.