in the proceedings concerning the sale," so
as to bring the statute to bear (Elling v.
Harrington, 17 Mont. 322, 42 Pac. 851; Mer-
guire v. O'Donnell, 139 Cal. 6, 72 Pac. 337,
96 Am. St. Rep. 91), while the constructive
eviction necessary to authorize
against the judgment creditor is sufficiently
alleged (Elling v. Harrington, supra).

recourse

untary payment, knowledge that the execution was void is imputed to the purchaser, although there was none in fact, and this for the benefit of persons having actual knowledge, and who took the plaintiff's money. The language of Lord Mansfield in Moses v. Macfarlane (2 Burr. 1009) is applicable. In speaking of the equitable action for money had and received, he says: 'It lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition, or extortion, or party's situation contrary to laws made for the oppression, or an undue advantage taken of a protection of persons under these circumstances." Schwinger v. Hickock, supra.

[6] Neither can it be conceded that failure to ascertain the true state of the record in the foreclosure proceedings was necessarily such culpable negligence as to bar McCarthy from relief upon the ground of mistake. The argument is that the means of knowledge were at his command; all he had to do was to go behind the judgment, consult the judgment roll, and accurately determine therefrom whether the judgment as to the Hamiltons was valid or void; and the underlying theory is that the mistake is one of law, from which relief cannot be had, because every one is presumed to know the law. That such is not the rule in this state has been decared in several decisions, among them Brundy v. Canby, 50 Mont. 454, 148 Pac. 315, wherein certain remarks, quite pertinent here but too extended for quotation, will be found (50 Mont.) at pages 471-473, 148 Pac. 315.

[5] The bank insists, however, that the maxim "caveat emptor" prevents McCarthy from seeking reimbursement. This might be correct from the point of view of Gleason, who, as we have seen, must be regarded as out of the case, or of the Hamiltons, who were never in it. But, according to our Code (section 5117), there is an implied warranty that the seller does not know the sale will not pass good title to the property, and no such warranty can coexist with caveat emptor as the respondents apply it. Nor has such application the support of general authority. If, at a judicial sale, which never in contemplation of law offers more than the judgment debtor's interest in the property sold, the purchaser gets all that was offered, though it be less than he supposed, caveat emptor prevents him making complaint of that; but it is not and should not be the rule that he cannot complain of the judgment creditor if, because of defects in the proceedings for which the latter is responsible, he did not get even what was offered. Henderson v. Overton, supra; Bond v. Montgomery, 56 Ark. 563, 20 S. W. 563, 35 Am. St. Rep. 120. Particularly is this true in cases where the purchaser has referred to and relied on the solemn assurances of the judgment that everything was as it should be, unless the law, instead of furthering its declared policy to encourage bid- tion-wisely, we think-when he filed his ding, would bait a trap with exactions beyond the power of the average layman to meet. The Supreme Court of New York has well said, and the declaration has had the approval of this court (Elling v. Harrington, supra):

"It is doubtless true that a person claiming a right or title under a conveyance or an instrument, in execution of a power, is in general chargeable with notice of any infirmity in his title disclosed by the instrument under which he claims, or of which, by reasonable diligence, he would have become acquainted. The rule is adopted to determine the question of superior equities, and to protect innocent persons from being defrauded. ** This principle is invoked in this case to debar a plaintiff who has paid his money in good faith, without actual knowledge, on a purchase under a void execution, from recovering it back of the persons to whom it was paid, and who were the plaintiffs in and procured the sale under the execution, and who, at the time of the sale, knew that the purchaser would acquire no title to the property. The principle referred to has no proper application to this case. To make out a vol

[7] Our conclusion, then, is that McCarthy was entitled to subrogation if he wanted it; but he could waive it, and proceed by independent action to secure reimbursement of the bank. In other words, he had an election of remedies, and he exercised that elec

complaint in No. 3841. Having chosen, he could not thereafter proceed nor contemporaneously maintain his petition in the foreclosure suit; hence the demurrer to that petition was properly sustained. His complaint in the independent action, however, was sufficient to authorize recovery from the Townsend bank, although no cause of action was or could be stated as to Gleason or the Missoula bank.

The order appealed from in No. 3846 is therefore affirmed; but the judgment in No. 3841 is reversed so far as the Townsend bank is concerned, and the cause is remanded, with directions to overrule the demurrer of the Townsend bank. The costs of these appeals will be divided equally between that respondent and the appellant, McCarthy.

HOLLOWAY, J., concurs. BRANTLY, C. J., being absent, takes no part in the foregoing decision.

Certiorari by J. W. Lawson against Harry menced in a justice's court is governed, conDunseath as Justice of the Peace of the trolled, and prescribed, as we view it, by Township of Tonopah, County of Nye, and two sections of our Civil Practice Act. SecGeorge L. Bailey. From a judgment and or- tion 7S80 (section 5722, Rev. Laws), is as der dismissing the petition, petitioner appeals. Reversed, and cause remanded, with instructions to grant the prayer of the petition.

It appears that one Bailey had attempted to commence an action in the justice's court rectly to the act of indorsement, and it is of Tonopah township against the appellant, not until after indorsement of the complaint Lawson. The steps taken to commence the by the justice setting forth the date of its action in the justice's court, as disclosed by the return of the justice in response to the order to show cause, appear as follows: An instrument entitled a complaint, on which no

"In the Justice's Court of Tonopah Township, Nye County, Nevada. George L. Bailey, Plaintiff, v. J. W. Lawson, Defendant. Complaint." The certified copy of the justice's docket It is the contention of respondent, and in filed in the lower court pursuant to the or- that contention he was upheld by the court

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

our aid no higher authority than the unequivocal language of our statute, and parenthetically let us say, statutes, the manifest meaning of which is clear and unconfused, require no construction.

Section 5722, Rev. Laws, says:

"An action in a justice's court is commenced by filing a complaint and the issuance of a summons thereon."

below, that the issuance of a summons is summons? In answer to this we can call to contingent rather upon the filing of the complaint. The term "filing," as here used, may mean the mere acceptance or receipt of the instrument by the officer. If it were the intention of the legislative body to have the issuance of summons contingent upon the act of filing, that is, contingent upon the mere receipt and acceptance of the complaint by the justice, it would have been a simple matter to have transferred the clause "and at any time within one year thereafter the plaintiff may have summons issued" and attached the same to section 780 rather than to section 781. We must read these sections as we find them. They are mandatory and limiting, in that they prescribe, limit, and fix the manner in which an action may be commenced in the justice's court.

By the term "must," as used in section 781, the act of indorsement by the justice of the peace is made mandatory, and the act of issuance of summons can only follow the performance of this required function. No summons can be issued by the justice until "thereafter." In this instance there being no indorsement upon the complaint setting forth the date upon which it was filed, no summons recognized by our procedure could issue, and the instrument purporting to be a summons in this instance was a nullity. No summons having issued, no action was commenced as prescribed by section 780.

Our Practice Act prescribes the mode of commencing suits in justice's courts and lays the foundation for jurisdiction. A summons to have force and effect must issue

Let us say, for argument's sake, that the mere act of delivery by the plaintiff to the justice constituted filing. Could summons issue from the justice without further affirmative action on his part? The very next section of the Code answers this in the negative.

* *

"The court must indorse on the complaint," says section 5723, and thereafter the plaintiff may have summons issued."

The expression here used by the Code makes the issuance of summons a thing that may be performed in futuro (Ercanbrack v. Faris, 10 Idaho, 584, 79 Pac. 817) determinative by the act of indorsement on the part of the justice. The period of time within which the summons may issue takes its inception in the act of indorsement by the justice. It is limited to "any time within one year thereafter."

We are referred to the case of Wilkinson v. Elliott, 43 Kan. 590, 23 Pac. 614, 19 Am. St. Rep. 158. If the case were at all applicable, the expression of the Supreme Court of Kansas found therein might go to reinforce our position here taken. There it was emphatically declared that the handing of the petition to the clerk of a court of recevery-ord and his mere indorsement thereon was not a sufficient filing to comply with the statute in language as follows:

by virtue of the provisions of the statute,
and when it fails in this it fails in
thing. Dupuy v. Shear, 29 Cal. 238.

We are referred to the cases of Hook v. Fenner, 18 Colo. 283, 32 Pac. 614, 36 Am. St. Rep. 277, and Hilts v. Hilts, 43 Or. 162, 72 Pac. 697. It is contended that these authorities are of assistance in arriving at a conclusion in this matter. These cases, together with many other authorities that might be cited, are expressive of a rule adhered to by a most eminent line, determinative only of the question as to when an instrument is considered as filed. We say a line of authorities, because courts have differed widely in expressing their views as to the question; and even were such authority applicable here, it would be a matter of very careful investigation before we should align ourselves with any of the diversified contentions.

A consideration of the discussions on the question as to when an instrument is actually filed only serves to lead us away from the vital matter in the case at bar. The question here for determination rather is: When, under our Code provision, could summons issue from a justice's court? Does the mere act of filing, assuming that filing is accomplished by delivery alone, constitute the sole

"When the petition had been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff's title; but such notice shall be of no avail unless the summons be served, or the first publication made, within 60 days after the filing of the petition." Comp. Laws 1885, § 3880 (Civil Code, § 81).

The requirements of our statute fixing the manner and prescribing the time within which and designating an act after which summons might issue are, in our judgment, reasonable in conformity with the fact that justice's courts in this state are not courts of record, but, on the contrary, are tribunals the jurisdiction of which depends upon affirmative acts in substantial conformity with the statutory prescription.

The order here appealed from must be reversed for another and equally potential reason. Lawson, who was sought to be made defendant in the proceedings in the justice's court, was a resident of California. An affidavit of nonresidence was filed by the plain

I do not think there is anything in section 5723, Revised Laws, justifying a different view. I take it that the language used in the section mentioned, wherein it is provided that the date upon which the complaint “was filed" be indorsed on the complaint, ex

the justice for service of summons by publication. The plaintiff in the matter sought to make personal service upon the defendant, Lawson. An affidavit of service was made by party, resident of California, in which affidavit he recites as to his being "over the age of 18 years." Section 5732 of our Re-pressly recognizes the filing as an act prevised Laws (section 790, C. P.) prescribes : "Summons may be served by a sheriff or constable of any of the counties of this state or by any other person of the age of twenty-one years or over, not a party to the action," etc.

cedent to the indorsement, and that the word "thereafter," used in the section mentioned, refers to the actual date of filing, and not to the date of the clerical act of making the indorsement upon the complaint.

SANDERS, J., did not participate.

(41 Nev. 305)

Our views in this respect may be expressed in the language of Mr. Justice Talbot in his concurring opinion in the case of Sherwin v. Sherwin, 33 Nev. 325, 111 Pac. 286, 122 Pac. 481, Ann. Cas. 1914A, 108, where, referring to the identical question, and sup- FORSYTH v. HEWARD et al. (No. 2266.) porting his conclusion by California deci- (Supreme Court of Nevada. Jan. 23, 1918.) sions pat on the subject (Maynard v. Mac-1. WITNESSES 160(2)-COMPETENCY-STATCrellish, 57 Cal. 355; Horton v. Gallardo, 88 Cal. 581, 26 Pac. 375), he says:

"When the service is made out of the state, it may be proved by affidavit of any person showing that he has served the summons, and that at the time of such service he was a citizen of the United States over 21 years of age." Service of summons out of the state by one who fails to meet the requirements of our statute in this respect is a useless act. The affidavit here fails to meet the requirement of our statute; hence proof of service was wanting in the justice court, accordingly want of jurisdiction followed, and no valid judgment could flow.

The act of the justice of the peace in entering judgment against appellant where no action had been commenced and where there had been no service of summons was in ex

UTE.

Under Rev. Laws, § 5419, declaring that no person shall be allowed to testify when the other party to the transaction is dead, or when the opposite party to the action or the person for whose immediate benefit the action or proceeding is prosecuted or defended, is the representative of a deceased person when the facts to be proven transpired before the death of such detiff who was adopted by the testatrix and her ceased person, testimony by the mother of plainhusband, in a suit against the testatrix's executor to enforce specific performance of alleged contracts by which plaintiff was to inherit any property of which testatrix and her husband might die possessed, it appearing that testatrix's husband conveyed all his property to her, as to matters relative to the alleged agreement tranwhich tended to establish the alleged contract of spiring before the death of testatrix, all of adoption, is inadmissible. 2. WITNESSES

UTE.

~160(1)—COMPETENCY-Stat

cess of jurisdiction, and certiorari will al- father concerning acts and conduct of testatrix In such case testimony by plaintiff's own ways lie to review such. and her husband when they went to his house to get plaintiff is also inadmissible under Rev. Laws, 8 5419; for it would be a mere evasion to allow testimony as to acts when testimony as to transactions with deceased persons is inadmissible.

The order and judgment appealed from are reversed. The case is remanded to the trial court, with instructions to that court to issue its order quashing the proceedings in the justice's court pursuant to the prayer of appellant in his petition for writ of certiorari. It is so ordered.

COLEMAN, J. (concurring). I concur in the order reversing the judgment of the trial court, and in that portion of the foregoing opinion relating to the alleged service of summons, but am unable to approve of the views expressed relative to the filing of the complaint in the justice's court. As a general proposition, it may be said that a document is filed when deposited with and received by the proper officer for filing, and the necessary fees paid, if demanded. Hook v. Fenner, 18 Colo. 283, 32 Pac. 614, 36 Am. St. Rep. 277; Hilts v. Hilts, 43 Or. 162, 72 Pac. 697; Wilkonson v. Elliott, 43 Kan. 50, 23 Pac. 614, 19 Am. St. Rep. 158; Manhattan Co. v. Laimbeer, 108 N. Y. 578, 15 N. E. 712; Beebe v. Morrell, 76 Mich. 114, 42 N. W. 1119, 15 Am. St. Rep. 288; 19 Cyc. 529.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Jane Forsyth, deceased, and others. From a deceased person, it was held that the fola judgment for plaintiff, defendants appeal.lowing elements must concur and be apparReversed, and remanded for new trial.

James T. Boyd and Ayres & Gardiner, all which the statute renders incompetent; second, "First, the witness must belong to a class of Reno, for appellants. Dixon & Miller and the party against whom the testimony is to be William L. Hacker, all of Reno, for respond-offered must belong to a class protected by the ent. statute; and, third, the testimony itself must be of a nature forbidden by the statute."