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Plankinton v. District Court

Supreme Court of Nevada
Dec 21, 1977
572 P.2d 525 (Nev. 1977)

Opinion

No. 10260

December 21, 1977

Appeal from Fifth Judicial District Court

Smith Maurer, Las Vegas, for Petitioner.

Robert List, Attorney General, Carson City; and Peter L. Knight, District Attorney, Nye County, for Respondent.


OPINION


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. 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.


Summaries of

Plankinton v. District Court

Supreme Court of Nevada
Dec 21, 1977
572 P.2d 525 (Nev. 1977)
Case details for

Plankinton v. District Court

Case Details

Full title:WALTER R. PLANKINTON, PETITIONER, v. THE FIFTH JUDICIAL DISTRICT COURT OF…

Court:Supreme Court of Nevada

Date published: Dec 21, 1977

Citations

572 P.2d 525 (Nev. 1977)
572 P.2d 525

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