I agree with the reasoning of the majority opinion and with the authorities therein cited and with the well-recognized limitations of the functions of the writ of certiorari. The majority opinion likewise recognizes the rule that where a statute prescribes the mode of acquiring jurisdiction that mode must be complied with or the proceedings will be a nullity. We part company in the determination of the nature of the proceedings in the court below wherein the defendants there moved for an order setting aside their respective defaults. The majority opinion concludes that the issue there raised "was not whether, because of any of the grounds specified in the statute, the defendants should be relieved of a default, but the issue was, on the other hand, whether the defaults had been properly entered and invoked the action of the court exercising a judicial power altogether different from that of its power to relieve of default." That the clerk in entering a default acts in a ministerial capacity is clear. Price v. Brimacombe, 58 Nev. 156,72 P.2d 1107, 75 P.2d 734. *Page 157 But that the general power of a court to make its records speak the truth and to correct defects in proceedings and to control its records for the proper administration of justice may be extended to include the situation presented here is by no means supported by the record. The separate motion of each defendant was for an order "to set aside and strike from the files herein that certain document denominated `default' which purports to have been entered by the clerk. * * *" The motion was to set aside the default. The motion to strike the document denominated "default" added nothing to it. Such document is merely an instrument used by the county clerk reciting the date of service appearing from the return of summons and the failure of the defendant to answer within the time allowed by law and the entry of the default. The motion made in each case was upon the ground that the petition for removal filed in the state district court was an answer. The additional ground that the defendant had not been served with "a full, true and correct copy" of the complaint we need not consider, as the point involved a minor clerical discrepancy. The court minutes of February 2, 1949 show that such date was the time set for the hearing of "defendants' motion to set aside the default" and that counsel for United States Gypsum Company "made its motion to set aside the default." The minutes of the same date show that counsel for defendant Pacific Portland Cement Company "made its motion to set aside the default." The minutes further show that affidavits were filed by the plaintiffs in opposition to the "motion to set aside default." The minutes of February 4 show that such was the time to which the argument on defendants' "motion to set aside default" was continued, and "the motion" stood submitted. The minutes of March 2, 1949 show the following:
"The court at this time rendered its decision on defendants Pacific Portland Cement Co. and the United *Page 158 States Gypsum Co., motions to set aside default which had heretofore been entered, said motions having heretofore been argued and submitted, and ordered the motion of each defendant above named be granted."
The motions before the district court were simply motions to set aside the defaults, nothing more. I do not overlook the distinction sought to be made by my learned associates — that the defendants contended that the defaults had been unlawfully entered, while the usual motion would admit the default and seek relief from it. But if as a matter of law the defaults were lawfully entered, the defendants could not by persisting in their error by-pass the jurisdictional requirements necessary to obtain relief. They could not create a jurisdiction to act, on the theory that the order sought "would make the record speak the truth." It already spoke the truth. Adding one error to another could not build up a jurisdiction that could be invoked only in the statutory manner.
The main question thus presented to this court is whether the jurisdiction of the district court to entertain, hear and grant such motion to set aside these defaults was ever properly invoked. Section 8640, N.C.L., referred to in the prevailing opinion, provides that: "The court may, * * * upon such terms as may be just, and upon payment of costs, relieve a party or his legal representatives from a judgment, order, or other proceeding taken against him through his mistake, inadvertance, surprise or excusable neglect * * *." The liberality of district courts and of this court in granting such relief has been evidenced many times, and all courts have uniformly adhered to the desire that all cases be tried upon their merits wherever possible. Just why the defendants in the court below steadfastly avoided any motion for relief under this statute does not appear. They relied entirely upon their contention that their respective motions to remove comprised *Page 159 answers under the statutory definition. The prevailing opinion does not reach this point, but there is no reason why it should be avoided. This court in other cases, and notably in State ex rel. Hinckley v. Sixth Judicial District Court, 53 Nev. 343,1 P.2d 105, held in an appeal from a conviction for contempt that it was error for the district court to exclude testimony which would have shown justification for the contemnor's acts but that such error was within jurisdiction. There can be little question but that the district court's order setting aside the defaults upon the only ground asserted, namely, that the motion to remove constituted an answer, was error.
The only authority for the removal of a cause from a state court to a federal court must be found in the acts of congress. Under the amendment a petition for removal must be filed in the federal court, and the filing of the petition in the state court in the instant case had no legal effect whatsoever. The petition thus filed was a fugitive or vagrant paper, having no more effect than if it had been filed in this court or in the court of some justice of the peace, or if it had prayed for permission to change the corporate name of the defendant, or for permission to change its capital stock structure. Although addressed to the district court, its filing failed to invoke the exercise of any discretion, judgment or power of action of any kind whatsoever. It was a complete nullity. Being so, the court was without jurisdiction to act upon it. As above noted, the majority opinion does not reach this situation. On the other hand this conclusion must be just as clear to my learned associates. Their conclusion, however, means that although the petition for removal was a vagrant paper and although the county clerk therefore acted properly in entering the defaults, and although the district court was in error in setting aside the defaults upon the ground asserted, its general jurisdiction over the parties *Page 160 and the subject matter and its power to make its records speak the truth resulted in the vesting of its jurisdiction to decide wrongly as well as correctly, and that its erroneous order setting aside the defaults must therefore stand until reversed on appeal — a fate which in my opinion inevitably confronts it (if plaintiffs should be unsuccessful and should appeal) even in view of the majority order vacating the writ of certiorari.
As the removal proceedings were a nullity and the defaults were therefore properly entered by the ministerial act of the clerk, the jurisdiction of the district court to set aside the defaults could be invoked only by proper application and statutory procedure as provided in N.C.L. sec. 8640. My learned associates present the hypothetical situation "if we consider for the purpose of making the point that the clerk was entirely wrong in entering the defaults." I do not think that we need to consider such a hypothetical situation. His erroneous ministerial act in such case would be a mere nullity. Relief might possibly be had in a number of ways which we need not consider. In Gerbig v. Gerbig, 60 Nev. 292, 108 P.2d 317, 319, in which a notice of appeal from the judgment was filed with the clerk of this court despite our statutory requirement that such notice be filed with the clerk of the district court, this court held that there was no appeal. So strongly did the court feel in the matter that it even denied the respondent's motion to dismiss the appeal because, as this court there stated, "There is * * * nothing to dismiss."
The prevailing opinion relies strongly on State ex rel. Hinckley v. Sixth Judicial District Court, 53 Nev. 343,1 P.2d 105, 108. This court did indeed probably go farther in denying certiorari in that case than in any other of its holdings on the point, and stated that it refused to follow the California decisions holding a contrary view. But even the analogy of that case lends much support to relators' contention here. There, COLEMAN, C.J., said: "The question before us seems to be *Page 161 a simple one. Did the lower court proceed regularly? The complaint charging contempt was filed, citation issued, and the defendants appeared. The court had jurisdiction of the subject-matter and of the defendants; hence it had authority to proceed." The emphasis upon the fact that the statutory requirements had been followed is significant. The statutory requirements in the present case must be found, not in the mere fact that notice of the motion to vacate the default was given, but in sec. 8640, N.C.L., and in the many opinions of this court outlining the requirements of that section. Defendants below, for reasons of their own, deliberately ignored that section. Relators concede in their brief that the court would have had full jurisdiction to exercise a legal discretion in entertaining and acting upon a motion of the defendants to be relieved of their respective defaults on the ground of mistake, inadvertence, surprise or excusable neglect. A proper showing of such statutory ground for relief would have been comparable to the contempt complaint, citation, etc., in the Hinckley case and would have given the court jurisdiction to decide — whether rightly or wrongly. Blundin v. Blundin, 38 Nev. 212, 147 P. 1083, 1084, involved an appeal and not an application for certiorari. Yet this court there found in no uncertain terms that the setting aside of a decree of divorce on the basis of a private letter received by the judge of which no notice was given to the parties was found to have "no legal basis upon which [the] order can be sustained," although it might have been sustained had it "been based upon the statutory ground of mistake, inadvertence, surprise, or excusable neglect."
The prevailing opinion also discusses Yowell v. District Court, 39 Nev. 423, 159 P. 632, which held that as mandamus is the proper remedy to compel a lower tribunal to entertain jurisdiction (where it has erroneously refused to do so), so certiorari is proper to review an erroneous assumption of jurisdiction. The Yowell *Page 162 case cites with approval Hoffman v. Lewis, 31 Utah 179,87 P. 167, holding that a lower tribunal proceeding to try an appeal where no appeal had been taken as required by law would be halted by certiorari. I think that is the situation that confronts us here.
In Floyd v. District Court, 36 Nev. 349, 135 P. 922, 923, 4 A.L.R. 646, the district court had granted a motion to dismiss an appeal from a justice's court and the petitioners sought mandamus to compel the district court "to take cognizance and jurisdiction of the said case and try and determine the same on its merits." The respondents insisted that even if the dismissal was error, still it was within the exercise of jurisdiction and that mandamus would accordingly not lie. The question was considered at great length by McCARRAN, J., speaking for the court, and by NORCROSS, J., in his concurring opinion. The former said:
"While it may be said that in cases of this character the lower court had jurisdiction to grant or deny a motion to dismiss, nevertheless that court could not refuse to hear a matter upon its merits when it was regularly before it for that purpose, nor could it divest itself of jurisdiction by an erroneous order any more than it could assume jurisdiction by arbitrarily saying that it had the right to proceed."
The latter in concurring said:
"As we said in the recent case of Gamble v. Silver Peak Co. Mines, 35 Nev. [319] 326, 133 P. 936: `It is the primal duty of all courts to keep within their jurisdiction. Whenever a court takes any affirmative action, there is an implied adjudication that it has jurisdiction.'
"Without conflict of authority, it is settled that when an inferior court erroneously determines that it has jurisdiction, its judgments and orders will be set aside by the higher courts."
See, also, Radovich v. Western Union Tel. Co., 36 Nev. 341,135 P. 920, 136 P. 704, which immediately followed the Floyd case and, on certiorari, annulled an order *Page 163 striking out a cost bill, although the court said: "Unquestionably, a court has jurisdiction to strike out a cost bill not filed within the time allowed by law, but whether an order, made upon motion duly noticed, striking out a cost bill duly filed, is in excess of jurisdiction so that the same may be annulled on certiorari is not so clear." In the Floyd case the court undoubtedly had jurisdiction to entertain a motion to dismiss the appeal, and in the Radovich case the court had undoubted jurisdiction to entertain a motion to strike the cost bill as not timely filed. The first case was an erroneous determination that the court had no jurisdiction. The second was an erroneous assumption of jurisdiction. The one order was annulled by mandamus, the second by certiorari. Both cases are authority for the issuance of the writ in the instant case.
To deny the motion to quash would not necessarily prevent the trial of the main case on the merits. I would deny the motion to quash and would annul the order setting aside the defaults, but without prejudice to the right of the district court to entertain an application of the defendants below for leave to present a motion to be relieved of their defaults on the statutory grounds provided in sec. 8640, N.C.L., and thereafter to entertain such motion when presented and to grant or deny the same in the exercise of its sound judicial discretion. If the court should consent to hear the new application and should upon such hearing grant the same, the defendants would then be in position to assert their defenses to the action. The effect of the majority ruling vacating the writ of certiorari heretofore issued is to give the defendants in the main action a temporary shelter in a house built upon the sands of patent error which will, if defendants prevail below, be washed away by the waters of a future appeal, thus leaving the whole thing to be done over again.
As the majority opinion holds that the district court did not exceed its jurisdiction, such opinion does not *Page 164 discuss the other points raised by the motion to vacate the writ. If any other remedy is open to relators, none such has been suggested in the briefs or oral argument of respondents or defendants. It is obvious, also, that the remedy of appeal would not be adequate.