Talbot, J., dissenting.

the legislature, and that it ought not to be repealed and nullified by the courts, whether it be deemed that some other rule would be better or more in consonance with the views of this and other tribunals. The practice act provides:

"Sec. 150. The relief granted to the plaintiff, if there be no answer, shall not exceed that which he shall have demanded in his complaint; but in any other case the court may grant him any relief consistent with the case made by the complaint and embraced within the issue." (Comp. Laws, 3245.)

"Sec. 155. An issue of fact arises: First, upon a material allegation in the complaint, controverted by the answer; and, second, upon new matter in the answer, except an issue of law is joined therein." (Comp. Laws, 3250.)

"Sec. 65. The allegation of new matter in the answer shall on the trial be deemed controverted by the adverse party." (Comp. Laws, 3160.)

Provisions similar to section 150 are in force in New York, California, Iowa, Indiana, South Carolina, Colorado, Kentucky, and Missouri. (Bliss, Code Pleading, 3d ed. 160.)

In Mitchell v. Mitchell, 28 Nev. 123, we have already had occasion to construe the fore part of section 150, and to hold that upon default the court had no power to enter judgment for more than the relief demanded in the complaint.

In McLeod v. Lee, 17 Nev. 112, 117, 28 Pac. 125, this court stated: "The general principle that a judgment of a court of competent jurisdiction between the same parties and upon the same issues is, as a plea, a bar, or, as evidence, conclusive, is too well settled to require discussion. Such a judgment is not only conclusive of the right which it establishes, but of the facts which it directly decided. This rule is necessary for the repose of society. It is in the interest of the public that there should be an end of litigation. * * * The estoppel 'extends to every material allegation or statement which, having been made on one side and denied on the other, was at issue in the cause, and was determined in the course of the proceedings.'"

In that case evidence was allowed to identify a dam. It was said that "this testimony was admissible, not for the purpose of varying, controlling, or contradicting the record,

Talbot, J., dissenting.

but for the purpose of more clearly showing that the dam in question in this suit was the same dam that was in issue in the former action."

The cases are numerous and uniform holding that extrinsic evidence is not admissible to impeach or contradict statements in the record with reference to points or matters in litigation, or which have been adjudicated.

In Low v. Blackburn, 2 Nev. 73, it was stated: "Even in equity, where technicalities are mostly discountenanced, a party can have relief, if at all, only upon the allegations in the pleadings. No decree can be made in favor of a party upon grounds not set forth in his complaint or answer. The rule is absolute, in chancery, that a party can only recover upon the case he presents. Secundum allegata et probata.' (Bailey v. Ryder, 10 N. Y. 363, 370; Byrne v. Romaine, 2 Edw. Ch. 446, 447; Beaty v. Swarthout, 32 Barb. 293, 294.)"

Chief Justice Hawley, speaking for this court, in Perkins v. Sierra Nevada S. M. Co., 10 Nev. 412, 413, said: "The question whether the judgment in the case under consideration was final must be determined with reference to the facts and issues presented by the record. * * * It is a well-established principle of law that the findings of a court should be confined to the facts at issue, and the judgment of the court must be warranted by the pleadings. (Burnett v. Stearns, 33 Cal. 473; Bachman v. Sepulveda, 39 Cal. 689; Marshman v. Conklin, 21 N. J. Eq. 548; Munday v. Vail, 34 N. J. Law, 418; Dodge et al. v. Wright, 48 Ill. 383.) And the fact that plaintiffs consented to this judgment does not change the rule. (Hastings v. Burning Moscow, 2 Nev. 96.)"

If parties are to be bound by matters litigated without pleadings when the judgment is set up as res judicata in another action, they would likewise be concluded by the same judgment on appeal in the first action, for, by voluntary litigating matters outside of the issues, they would be without the proper objection and specification of error on which to base an appeal, and consequently the judgment would be equally conclusive and the rule the same in either case.

We should remember that we are acting on the chancery side of the court, and that equity principles should apply,

Talbot, J., dissenting.

and, as this action is one purely in equity, doubts, if any, would be more properly resolved in such a way that the rights of none would be cut off or lost. With this purpose in view, if we had no statute or decisions applicable in this state, it still would be better to hold that the parties are not concluded by the former judgment which is not supported by any issue or allegation in the pleadings, nor clearly shown by competent evidence to rest upon matters which were litigated by the parties as adversary codefendants. It is apparent from the record and uncontradicted that the property was of the value of about $14,000, more than sufficient to pay the prior claim of the Sacramento Bank for $8,000 and interest, and the $2,000 mortgage of Gulling, which was the second lien on the property, and yet the Washoe County Bank has its unsecured debt for $5,000, which was subsequent to both of these claims, satisfied, while the Gulling mortgage remains unpaid.

The statute and decisions of this court rendered since its passage should be followed, and the judgment of the district court, and of this court sustaining the same, as rendered before the rehearing, ought to be affirmed.

Argument for Respondent.

[No. 1711.]

C. C. TURNER, PETITIONER, v. HON. F. P. LANGAN, AS JUDGE OF THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, LYON COUNTY, AND I. H. STROSNIDER, RESPONDENTS.

1. PROHIBITION-WHEN WRIT WILL LIE-REMEDY BY APPEAL. The writ of prohibition will not lie to restrain a judge of the district court from canvassing the returns from an election precinct in an election contest, since the party aggrieved by any erroneous action of the court has an adequate remedy by appeal.

APPLICATION of C. C. Turner for a writ of prohibition directed to F. P. Langan, District Judge of the First Judicial District of the State of Nevada, and I. H. Strosnider. Denied. The fact sufficiently appear in the opinion.

Alfred Chartz, for Petitioner.

C. E. Mack, for Respondent:

I. A writ of prohibition never issues to review what has already been done, nor to prevent the doing of an act which is not threatened to be done. (Coker v. Superior Court, 58 Cal. 178.) An order of prohibition may issue from the supreme court of this state in a proper case to arrest the progress of a trial, but such order should not issue when there is another and adequate remedy. (Low v. Crown Point M. Co., 2 Nev. 75.)

II. It is well established that when an appeal affords a complete and adequate remedy and the same ends can be accomplished, although perhaps not in so expeditious a manner, the party is not entitled to the extraordinary remedy of prohibition, but must have resort to his remedy by appeal. (White v. Superior Court, 110 Cal. 58.) The writ of prohibition lies only where there has been an excess of jurisdiction and there is "not a plain, speedy, and adequate remedy in the ordinary course of law." The petitioner, having a right of appeal from any order made by the inferior court, is not entitled to a writ of prohibition. (Havemeyer v. Superior Court, 84 Cal. 327.)

III. In all cases of contested elections the district court of the respective districts shall have original jurisdiction to

Opinion of the Court-Norcross, J.

try and determine all such cases, and may, by mandamus or otherwise, obtain all documentary evidence required by either of the parties litigant. (Comp. Laws, 1621, 1622, 1623, 1624, 1625, 1635; Garrard v. Gallagher, 11 Nev. 386.)

IV. The petition of C. C. Turner shows that he and his colleagues, as commissioners of Lyon County, acting as a board of canvassers, passed upon the Churchill returns and refused to canvass the same, because the returns were irreg ular and indicative of a fraud perpetrated after the votes had been cast, and having once acted on the returns they cannot be compelled by mandamus to determine whether or not a question of fraud had been perpetrated after the returns and votes had left Churchill Precinct, even if this were the only question set forth in the complaint and answer. (McCreary on Elections, par. 57; People v. Supervisors of Green, 12 Bar. 217; State v. Rodman, 43 Mo. 256; Oglesby v. Sigman, 58 Miss. 502; McCreary on Elections, 362, 363.) To have attempted to determine the question of how many votes in other precincts had been thrown out that had been cast for contestant, as alleged in the complaint, also to determine the question as to how many ballots were thrown out and not counted for contestee by the various boards of election of Lyon County, by mandamus against said board of county commissioners of Lyon County, would have been the height of folly.

By the Court, NORCROSS, J.:

This is an application, upon notice to respondents, for the issuance of a writ of prohibition directed to the respondent, F. P. Langan, as District Judge of the First Judicial District in and for Lyon County, and commanding him to refrain from canvassing the returns from a certain election precinct in said county called Churchill Precinct, in a certain election contest for the office of short-term county commissioner, now pending before said court, in which the respondent, I. H. Strosnider, is plaintiff and contestant, and petitioner, C. C. Turner, is the defendant and contestee. The writ is also asked for the purpose of prohibiting the respondent judge from deciding the contest.