There is but one serious question in this case, and that is whether the justice of the peace had jurisdiction to render the judgment in question without taking testimony. He clearly had jurisdiction of the subject matter and of the parties. The defendants were in default for failure to answer. Higley v. Pollock, 21 Nev. 198, 27 P. 895; McKim v. District Court, 33 Nev. 44,110 P. 5. At common law, in an action for damages, where a defendant is in default it was the practice to sue out a writ of inquiry to have the damages determined. 1 Tidd's Pr. 569, 573; 3 Chitty's Pr. 671, 673.
In case of a default, something is admitted to be due, but not the amount demanded, and the onus of proof as to the amount of damages is upon the plaintiff.
The first statutory provision in this state providing the procedure in a justice's court relative to defaults *Page 210 was section 550 of "An act to regulate proceedings in civil cases in the courts of justice of this state, and to repeal all other acts in relation thereto," approved March 8, 1869, c. 112, being section 3645, Cutting's Comp. Laws. This section provided: "When the defendant fails to appear and answer, judgment shall be given for the plaintiff as follows: First. * * * Second — In other cases, the justice shall hear the evidence of the plaintiff, and render judgment for such sum only as shall appear by the evidence to be just. * * *"
The section mentioned has been amended so as to require that the justice "must" hear the evidence. Rev. Laws, sec. 5754.
Prior to the amendment, it may be that it was discretionary with the justice of the peace to hear the evidence, but the amendment indicates an entirely different intention on the part of the legislature.
There is no rule more widely recognized than that a substantial change in the language of a statute indicates a change in the legislative intent. This court, in speaking of a legislative change in a statute, said: "* * * We are bound to presume that it was done ex industria, for the purpose of effecting the change which is effected in the law. * * *" Crane Co. v. Gloster, 13 Nev. 279; 36 Cyc. 1080.
What could have been the intention of the legislature in making the change pointed out, except to make the taking of testimony a condition precedent to the entry of a judgment? None. The word "must" is generally construed to be mandatory, and, in view of the situation presented, it can be given no other construction in this matter.
This court has often held that a court may have jurisdiction of the parties and of the subject matter but be without jurisdiction to render the particular judgment. In Re Estate of Foley, 24 Nev. 197, 51 P. 834, 52 P. 649; Ex Parte Dela, 25 Nev. 346,60 P. 217, 83 Am. St. Rep. 603; In Re Forney's Estate,44 Nev. 279, 194 P. 331.
In Windsor v. McVeigh, 93 U.S. 274, 282, *Page 211 23 L.Ed. 914, it is said: "Though the court may possess jurisdiction of a cause, of the subject matter, and of the parties, it is still limited in its modes of procedure, and in the extent and character of its judgments. It must act judicially in all things, and cannot then transcend the power conferred by the law."
This doctrine was approved by this court in Estate of Foley, supra.
Not only was the respondent restricted by the statute mentioned to the course of procedure therein pointed out, but, pursuant to a long line of decisions of this court, commencing with Mallett v. Uncle Sam, etc., Co., 1 Nev. 188, 90 Am. Dec. 484, and culminating in Levy J. Zentner Co. v. Justice Court,48 Nev. 425, 233 P. 40, his authority is limited and must be strictly adhered to.
The following cases, by analogy, support the conclusion reached: McKinney v. Brown, 130 Pa. St. 365, 18 A. 642; Barney v. Fahs, 10 Pa. Co. Ct. Rep. 424; Kaiser Brother v. Brown,98 Ga. 19, 25 S.E. 925.
The respondent not having proceeded as required by statute, his judgment is void.
The contention that the justice of the peace was without jurisdiction because the suit was not brought in the proper township is without merit. Section 5715, par. 3, Rev. Laws, provides that to recover for injury to property the action must be instituted in the township in which the injury was committed. So far as appears from the record of the justice of the peace, to which alone we must look (11 C.J. 199), this was done.
Judgment annulled. *Page 212