Plankinton v. Fifth Judicial District Court

OPINION Per Curiam: After being convicted of a misdemeanor in justice’s court, Walter R. Plankinton filed a notice of appeal, but failed to have the matter set in the district court within 60 days. The district court dismissed the appeal on the authority of NRS 189.065, which provides: “An appeal shall be dismissed by the district court unless perfected by application of the defendant, within 60 days after the appeal is filed in the justice’s court, by having it set for trial.” (Emphasis added.) Here, Plankinton seeks the extraordinary writ of mandamus to compel respondent to vacate its order of dismissal because, he argues, the provisions of NRS 189.065 are not mandatory. We disagree. Article 6, section 8 of the Nevada Constitution confers upon the legislature the power to “prescribe by law the manner, . . . in which appeals may be taken from Justices and other courts.” See also Cavanaugh v. Wright, 2 Nev. 166 (1866). By enacting NRS 189.065, the legislature saw fit to prescribe that a defendant must perfect his appeal from Justice’s court by having it set for trial within 60 days or suffer dismissal. See Woofter v. O’Donnell, 91 Nev. 756, 762, 542 P.2d 1396, 1400 (1975), where we said: “[T]he word ‘shall’ embodied within [a statute] operates to make its use mandatory.” Cf. [645] Thran v. District Court, 79 Nev. 176, 380 P.2d 297 (1963); Ex Rel. Williams v. District Court, 48 Nev. 459, 233 P. 843 (1925). The provisions of NRS 189.065 are mandatory. Therefore, the district court did not err in dismissing Plankinton’s appeal. Writ denied.