State ex rel. Phillips v. Second Judicial District Court

[27] By the Court, Sanders, C. J.: Melvin F. Phillips, a citizen of this state, sued Thomas Ginocchio and D. F. Capps, police officers of the city of Reno, to recover the sum of $10,000 as damages for his [28] alleged unlawful arrest and imprisonment. Upon the request of plaintiff the court set the case for trial before a jury on the 17th day of January, 1922. Thereafter, on, to wit, the 12th day of that month, the plaintiff made a motion for leave to further prosecute his action in forma pauperis. His motion was based on his affidavit, stating, in addition to his declaration of poverty, that he had a good and meritorious cause of action, and had been so advised by his attorney, and that no person, other than himself, had any interest in the prosecution of his action. The motion came on to be heard upon the pleadings and oral testimony of plaintiff and his attorney in support of his affidavit. The court denied the motion, whereupon plaintiff moved for an order to vacate the setting of the case for trial before a jury, and asked that the court refrain and desist from taking any further’ proceeding in the case until such time as plaintiff could sue out of the Supreme Court of the State of Nevada a writ of mandamus commanding the presiding judge to permit him to further prosecute his action as a pauper. This motion was also denied, whereupon plaintiff made application to this court for a writ of mandamus. Upon consideration of his petition for the writ, this court made an order commanding Hon. George A. Bartlett, as judge of the district court of Washoe County, to refrain and desist from any further proceeding in the action of Melvin F. Phillips against Thomas Ginocchio and D. F. Capps, and to permit plaintiff to further prosecute his action without the payment of legal fees, or show cause before this court on the day fixed by its order why he should not do so. The question is whether a writ of mandamus may be predicated upon such a return. The rule established by a number of decisions of this court relative to cases in which the writ of mandamus may issue is that before the relator can obtain the writ he must establish sufficient facts to. show that he has a legal right to have something done by the inferior tribunal which it [29] has refused to do. Rev. Laws, 5695; State v. Wright, 10 Nev. 174. The return does not show that the judge refused or denied to the petitioner the right to further prosecute his action as a poor person, but that in the judgment of the court, uppn the showing made, plaintiff had failed to bring himself within the rule of the common law, if the same, as contended for by petitioner, prevails in this jurisdiction. As the judge' had the power to hear the motion, his determination upon the hearing thereof was necessarily a judicial act. It is difficult to perceive how mandamus will lie to review his action. To grant the writ would be in effect to review a judicial decision, which is not the function of mandamus. It is argued that the ruling complained of was such a flagrant abuse of discretion as that it amounts to the petitioner being precluded from the enjoyment of his legal right to further prosecute his action as a poor person. Adopting the language of this court as used in State v. District Court, 40 Nev. 163, 161 Pac. 510, the respondent assumed jurisdiction, entertained the motion, heard the evidence in support of petitioner’s contention, and rendered a determinative judgment based upon the showing made, and either a correct or incorrect interpretation of the law applicable to the specific question in furtherance of which the showing was made. In that case McCarran, J., asked: “What more could the lower court do if the writ were to issue now? Would it reverse its judgment entered upon the showing made? Would it take a different view of the law arising upon the case? Is it the function of the writ , of mandate to review errors of discretion or judgment and reverse decisions based thereon?” Speaking for the court, the learned judge said: “An answer to such query is found in the established principles of law applicable to the function of this extraordinary writ, which may be stated thus: The acts or duties, the performance or nonperformance of [30] which rests in whole or in part on the discretion or judgment of the inferior tribunal, board, or officer, will not be required by the writ of mandamus.” The question underlying this proceeding is whether, in the absence of statute, the petitioner has the right to proceed, with the prosecution of his action in the district court without the payment in advance of the legal fees. We merely state the question in order that it may not be thought by our conclusion that we decide it. Our conclusion is that return to the order to show cause does not show facts upon which a peremptory writ will lie. The petition for the writ is therefore denied, and the proceeding dismissed.