Harris v. Helena Gold Mining Co.

By the Court, Sweeney, J.: This is an action founded upon an adverse claim filed by the appellant in the United States Land Office at Carson City, Nevada, against respondent’s application for a United States mineral patent. The record discloses that the adverse was filed on the 26th day of September, 1906, and that a complaint was filed in the First Judicial District Court of the State of Nevada, in and for the County óf Esmeralda, on the 26th day of October, 1906. Upon the same day a summons in due form was made out by the clerk of said court. Upon the 12th of November, 1906, the said summons was placed in the hands of the sheriff of Ormsby County, Nevada, and was on said date served on the resident agent of defendant at Carson City. On November 28, 1906, the defendant — 512 — appeared in said action and filed a general demurrer to the sufficiency of said complaint; and, before hearing on said demurrer, on January 9,1907, the defendant filed its answer. On March 19, 1907, Vermilyea, Edmonds & Stanley, defendant’s attorneys, withdrew from the case, and thereafter Robert L. Hubbard, Esq., was substituted therefor. On March 26, 1907, defendant, through its attorney, Robert L. Hubbard, Esq., filed another general demurrer to the sufficiency of the complaint, and on the same date filed a separate special demurrer, which reads as follows: "Comes now the defendant and demurs to' the jurisdiction of the court, and, for ground of demurrer, states: First — The court has no jurisdiction of the subject-matter of this action, because (a) it appears from the face of the files in this action that plaintiff’s suit was not commenced in this court within thirty days after the filing of plaintiff’s adverse claim which forms the basis of this action in the land office at Carson City, Nevada.” It appears, also, that the answer filed by the defendant on January 9th contains the following allegation: "Further answering, said complaint alleges that plaintiff’s adverse claim in this proceeding was filed in the land office at Carson City, Nevada, on the 26th day of September, 1906, and that this action, nor any other action, was commenced in this or any other court within thirty days thereafter to determine the right of possession to said mining claims, and that the said adverse claim of defendant is under and by virtue of the provision of section 2326 of the Revised Statutes of the United States (U. S. Comp. Stats. 1901, p. 1430) barred and waived.” Upon the hearing of the special demurrer to the jurisdiction of the court, the court held that the action was not instituted within the thirty days required by section 2326 of the Revised Statutes of the United States, which provides that an adverse action must be commenced in a court of competent jurisdiction within thirty days after the filing of the adverse claim in the United States Land Office, and that, therefore, the court had no jurisdiction of the action, and the same was accordingly dismissed. From the order and — 513 — judgment of the court sustaining the special demurrer, this appeal is taken. Upon the hearing of this appeal in this court, respondent interposed a motion to dismiss the appeal upon grounds, which we believe have been thoroughly disposed of in the case of Edgecombe v. His Creditors, 19 Nev. 149, 7 Pac. 533, and for this reason the same will be denied. The only question presented upon this appeal is as to when an action' is deemed* commenced under the statutes of this state. Section 22 of the civil practice act of this state, relating to the manner of commencing civil actions, reads: " Civil action in the district courts shall be commenced by the filing of a complaint with the clerk of the court, and the issuance of a summons thereon; provided, that after the filing of the complaint a defendant in the action may appear, answer, or demur, whether the summons has been issued or not, and such appearance, answer, or demurrer shall be deemed a waiver of summons.” (Comp. Laws, 3117.) It was held by the lower court, and ably and strenuously urged by counsel for respondent, that an action is not commenced under the laws of Nevada until the complaint is filed with the clerk of the court and summons issued thereon' and placed in the hands of the sheriff of the county or other person authorized to serve the same. Respondent also relies on section 20 of an act entitled "An act defining the time of commencing civil actions” (Stats. 1861, p. 26, c. 12),which reads as follows: "An action shall be deemed to be commenced, within the t meaning of this act, when the complaint has been filed in the proper court, and summons issued and placed in the hands of the sheriff of the county, or other person authorized to serve the same.” This latter section, we think, is not controlling in the determination of the point presented for determination, for the reason that the limitation within which this action may be commenced is fixed by the laws of Congress, and not by the statutes of this state, and that, therefore, the act of 1861, from which the section last quoted is taken, is inapplicable. The question as to what constitutes the commencement of an action must be determined by a construction of the provisions of section 22 of — 514 — the civil practice act of this state, above quoted, enacted in 1869. It must be borne in mind that the complaint in this case was filed within the thirty days, as required by the provision of the Revised Statutes of the United States above referred to, and that thereafter the defendant appeared in said action and filed a general demurrer to the complaint, without making any reservations whatever relative to the jurisdiction of the court. This state of facts, we think, brings the present case squarely within the ruling of this court in the case of Rose v. Richmond M. Co., 17 Nev. 25, 27 Pac. 1105. In the latter case it appeared that upon the 1st day of September, 1873, the Richmond Mining Company applied to the United States Land Office at Eureka, Nevada, for a patent to certain mining ground. On the 29th day of the same month the appellant filed his adverse in the said office, and on the 21st day of October following filed a complaint in the District Court of the Sixth Judicial District in and for the County of Eureka, Nevada, to determine his rights under said adverse. It does not appear from the record whether or not any summons was ever issued in the case. Upon the 1st day of November following the Richmond Mining Company appeared in the action and filed a general demurrer. Thereafter, on the 26th day of the same month, they filed an answer to the plaintiff’s complaint. From an examination of the record and briefs on file in the Rose-Richmond case, it appears that the same question was presented in that ease as is now presented in this, and, in order that a better understanding may be had of that portion of the decision which we hereafter quote, we will first make a brief extract from respondent’s and appellant’s briefs in that case. In respondent’s brief we find the following: "That the action was not commenced in time must be conceded. The only question is one of waiver. Did the respondent by demurring waive the failure of appellants to commence the action within thirty days after filing protest? If so, by virtue of what law or what rule? It is true that the defendants may waive summons by voluntarily appearing, but, if summons is thus waived, is the action to be deemed — 515 — commenced at the time the complaint is filed, or at the time the defendant appears?” From appellant's brief in reply in that case we quote the following: "But the record shows that defendant appeared and answered, which, by express terms of the statute (section 22), was a waiver of the issuance of the summons. This waiver was general and for all purposes, and not only waived the issuing, but also the time of issuing the summons.” It thus appears that the effect of the filing of the general demurrer in so far as it constituted a waiver, both as to the issuance and as to the time of issuance of the summons, was clearly presented. There was also presented in the Rose-Richmond case another question affecting the time when an action is deemed commenced in law in this state .which is not involved in this suit, but which makes the position taken in this case, we think, all the stronger. Commenting upon the law applicable to the facts in the Rose-Richmond case above referred to, this court, by Hawley, J., said: "The claim of respondent that this action was not commenced in time is not well taken. The complaint was filed within thirty days after the filing of the protest as required by the statute. It is true that the plaintiffs did not pay the docket fee (2 Comp. Laws [of 1873], 2766, 2767), but it was advanced and paid by the clerk in his next regular monthly settlement 'with the county treasurer. The findings are silent as to whether any summons was issued or not. They show, however, that the defendant regularly appeared and filed a demurrer and answer to plaintiff’s complaint, and did not at any time move to dismiss the action or file a plea in abatement. From these facts, it is apparent that it cannot now be claimed that the action was not commenced in time. The defendant by demurring and answering waived the issuance of summons. (1 Comp. Laws [of 1873], 1085; Iowa M. Co. v. Bonanza M. Co., 16 Nev. 64.) Respondent cannot take advantage of the fact that the clerk, instead of the plaintiffs, paid the docket fee. The clerk had the right to refuse to put the case upon the docket unless the docket fee was paid by the plaintiffs. By entering it upon the docket he became personally responsible, and assumed the payment of the fee, — 516 — and, having paid it, as he. did, the rights of plaintiffs were preserved. The case stands precisely the same as if the summons had been issued, and the docket fee paid by plaintiffs, on the day the complaint was filed.” By reference to section 22 of the civil practice act above quoted, it will be observed that where defendant appears, either by demurrer or answer, summons is waived, not only in cases where summons has not issued, but- also in cases where summons has issued. In the case of Rose v. Richmond, supra, the defendant did not appear and demur until two days after the thirty-day limit had expired for the commencement of actions upon adverse claims. In that case the record did. not disclose whether summons had or had not issued. If no summons had issued, then the time had run against the action when the demurrer was filed, unless, as was held in that case, the filing of the demurrer amounted to a waiver of the summons, and, in .effect, was the same as though summons had issued upon the date the complaint was filed. Section 22 of the civil practice act, making the filing of a demurrer a waiver of summons, regardless of whether a summons was issued or not, relates back, under the authority quoted, to the time of the filing of the complaint, and therefore in the present case, the same as in the Rose-Richmond case, this action stands as though summons was issued on the 26th day of October, 1906, the date the' complaint was' filed, and therefore within the thirty days prescribed by the federal statute, It will be seen from the opinion in the Rose-Richmond case that,'notwithstanding the statutory prerequisite of the payment of a docket fee before an action is deemed commenced in this state and the fact that the fee in said case was not paid, this court held in that case that, by the appearance of respondent after the thirty-day limitation in which an action must be commenced after the filing of an adverse under the Revised Statutes of the United States, he waived any right of objection upon this point and the fee was deemed to have been paid on the date of the filing of the complaint. It is very proper, also, here to note that, although the record in this case shows that the summons was placed in — 517 — tbe bands of tbe sheriff of Ormsby County on tbe 12tb day of November, 1906, there is nothing in tbe record, in tbe nature of a finding or otherwise, showing whether it may not have been on the day it was made out placed in the hands of some other person authorized under the statutes of this state to serve the same. Our statute provides that a summons may be served by any citizen of the United States over 21 years of age as well as by a sheriff or his deputy. (Comp._ Laws, 3123.) In practice it is well known that a summons may be in two or more hands for service before service is actually effected. The filing of the general demurrer in this ease operating as a waiver of the issuance of summons, which had the effect of an issuance of summons on the day the complaint was filed, the court had jurisdiction both of the subject-matter and the parties, and therefore its judgment and order dismissing the cause for want of jurisdiction was erroneous. For the reasons given, the judgment and order are reversed, and the cause remanded for further proceedings.