Nevada Reports 1926-1928 (50 Nev.) PDF

50 Nev. 1, 1 (1926) State v.
Verganadis
STATE v. VERGANADIS
No. 2741
September 10, 1926. 248 P. 900.
1. SodomyPleading.
Information charging that defendant attempted to comit infamous crime against nature on a male
human being by doing certain acts which tended to accomplish said crime, held not deficient in failing to
charge overt act, and stated attempt to commit offense within Rev. Laws, 6291.
2. Criminal LawAttempt Must Be Overt Act.
Act done as attempt to commit crime within Rev. Laws, sec. 6291, must be overt act and go beyond
mere preparation to commit and tend to accomplish it.
3. SodomyPleading.
In information charging attempt to commit infamous crime against nature, it was unnecessary to
allege the substantive crime by more than its statutory designation.
4. SodomyEvidence.
Evidence held to show purpose of committing infamous crime against nature and sufficient to sustain
conviction of attempt to commit.
5. Criminal LawAccomplice.
Testimony of a feigned accomplice does not require corroboration.
It is for jury to determine from evidence whether witness was an actual or only a feigned accomplice.
7. Criminal LawFinding Conclusive.
Finding of jury under proper instructions as to whether witness was actual or only feigned accomplice
is conclusive.
8. Criminal LawAccomplice Defined.
Accomplice is one who knowingly, voluntarily, and with common intent with principal offender
unites in commission of crime, but one who cooperates with view of aiding justice to detect crime is a
feigned accomplice.
Instruction stating that witness simulating complicity in crime to secure evidence was not accomplice
held not to assume that witness was feigned accomplice.
In prosecution for attempt to commit infamous crime against nature, instruction stating statute as to
corroboration necessary in case of accomplices, and that if crime was committed by mutual criminal
consent of parties and that if complaining witness criminally participated he was an accomplice, held not
error, in view of instruction as to feigned accomplices.
Instruction in exact language of statute as to extent of corroboration of accomplice necessary to
support a conviction held not error.
50 Nev. 1, 2 (1926) State v. Verganadis
12. SodomyConsent No Defense.
Where jury found under evidence complaining witness was not an accomplice, instruction that in
prosecution for infamous crime against nature, or attempt to commit it, it was immaterial whether person
abused consented thereto and consent constituted no defense held not to deprive defendant of substantial
defense.
13. Criminal LawSodomyInstruction.
In prosecution for attempt to commit infamous crime against nature, instruction setting out elements
of crime and stating substantive crime attempted held not error, in absence of request for more specific
instruction.
C.J.CYC. REFERENCES
Criminal Law16 C.J. sec. 93, p. 113, n. 16; p. 114, n. 21; sec. 1344, p. 670, n. 68; sec. 1351, p. 673, n. 89,
90; sec. 1370, p. 678, n. 65; sec. 2331, p. 952, n. 16; sec. 2416, p. 1001, n. 2; sec. 2495, p. 1053, n. 93; sec.
2498, p. 1056, n. 20; 17 C.J. sec. 3597, p. 271, n. 28.
Indictments and Informations31 C.J. sec. 173, p. 654, n. 20; sec. 292, p. 742, n. 35.
Sodomy36 Cyc. p. 503, n. 21; p. 504, n. 30; p. 505, n. 41, 45.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Peter Verganadis was convicted of an attempt to commit the infamous crime against
nature, and he appeals. Affirmed.
Frame & Raffetto, for Appellant:
Information does not state cause of action. It alleges certain acts were committed with
intent to commit the infamous crime against nature, but does not allege that acts set out and
intended to be overt acts were committed with intent to penetrate body of complaining
witness, thereby stating merely legal conclusion. Constituent elements of attempt to commit
offense consist of some act toward commission of offense with intent to commit act and
failure of consummation. State v. Dawson, 45 Nev. 255. Argumentative allegations and mere
conclusions are insufficient. Between preparation for attempt and attempt itself, there is wide
difference. State v. Lung, 45 Nev. 209; State v. Logan, 1 Nev. 93.
Complaining witness is in law accomplice whose uncorroborated testimony is insufficient to
convict. Rev. Laws, 6274, 7180. It is unlawful for public officers to originate scheme to
entrap person in commission of crime.
It is unlawful for public officers to originate scheme to entrap person in commission of crime.
Zoline, Fed. Crim. Law & Pro. 305; State v. Douglas, 26 Nev. 196.
M. A. Diskin, Attorney-General; William J. Forman, Deputy Attorney-General; L. D.
Summerfield, District Attorney, and H. L. Heward, District Attorney, for Respondent:
Information is clearly sufficient; overt act is specifically and completely set out, not mere
preparation for act. Cases cited by appellant differ vitally from charge made in case at bar.
Whether charge be that of act itself or attempt to commit same, it is sufficient to charge it by
name only, the offense being too well known and too disgusting to be further defined. 36
Cyc. 503; In Re Benites, 37 Nev. 145.
Rev. Laws, 6274, is not defense enactment; it deals with principals, not accomplices,
and enables state to prosecute certain class as principals. Clause relied on the fact that the
person aided, etc., could not or did not entertain a criminal intent, shall not be a defense to
any person aiding, etc., does not apply. One who feigns complicity in order to entrap accused
is not accomplice. 16 C. J. 673; 1 R. C. L. 159; State v. Doulgas, 26 Nev. 196; State v. Smith,
33 Nev. 438.
Distinction between real and feigned accomplice depends upon criminal intent or lack of it.
16 C. J. 673.
It is proper that jury be left to determine whether complaining witness was real or feigned
accomplice. 16 C. J. 678.
All corroboration necessary is evidence tending to connect defendant with commission of
crime. Rev. Laws, 7180.
Consent of complaining witness is no defense. Act is so vile that its commission,
irrespective of consent, is criminal. 36 Cyc. 504.
Crime is so well known it is not necessary to detail acts which constitute it. 36 Cyc. 503;
in Re Benites, supra.
Instruction defining offense in language of statute was sufficient.
sufficient. 36 Cyc. 503. If defendant desired more detailed instructions it was incumbent on
him to prepare and present same. State v. Switzer, 38 Nev. 108.
OPINION
By the Court, Ducker, J.:
The appellant was convicted by a jury upon an information the charging part of which is as
follows, to wit:
That said defendant on the 3d day of February, A. D. 1926, or thereabout, and before the
filing of this information, at and within the county of Washoe, State of Nevada, did then and
there willfully, unlawfully, and feloniously attempt to commit the infamous crime against
nature with and upon one-, a male human being, by then and there placing his penis at
and against the thighs and rectum of the said, which act then and there tended to
accomplish the said crime, to wit, the infamous crime against nature with or upon the
said.
1, 2. He appeals from the judgment and order denying his motion. He contends that the
information does not state facts sufficient to constitute the public offense of an attempt to
commit the infamous crime against nature in that it fails to allege that the acts designated
were done with intent to penetrate the body. In this respect it is contended that the allegation
that the acts were done with intent to commit the infamous crime against nature is a legal
conclusion and does not supply the deficiency. It is argued that the acts alleged, at the most,
merely show preparation to commit the crime, which is not sufficient to show an attempt to
commit it. Section 6291 of the Revised Laws defines an attempt as follows:
An act done with intent to commit a crime, and tending but failing to accomplish it, is an
attempt to commit the crime.
The act done must be an overt act. It must go beyond mere preparation to commit the
crime and tend to accomplish it. State v. Lung, 21 Nev. 209, 28 P. 235, 37 Am. St. Rep.
37 Am. St. Rep. 505, and People v. Murray, 14 Cal. 159, are cited by appellant in support of
his last-mentioned contention. They are, however, readily distinguished on the facts from the
instant case. In State v. Lung, the act complained of did not go beyond the stage of
preparation in mixing cantharides in some coffee which the defendant knew a certain woman
would drink. So, in People v. Murray, there was no overt actmerely preparation to contract
an incestuous marriage by the defendant in eloping with his niece for that avowed purpose,
and his request to one of the witnesses to go for a magistrate to perform the ceremony. The
court held that these acts were preparatory to the marriage, and that the attempt could not
have been made until the officer was engaged and the parties stood before him ready to take
the vows appropriate to the contract of marriage. As said by this court in the former case,
quoting approvingly from the latter:
Between preparation for the attempt and the attempt itself, there is a wide difference. The
preparation consists in devising or arranging the means or measures necessary for the
commission of the offense; the attempt is the direct movement toward the commission after
the preparations are made.
Certainly it cannot be held that the information in this case does not allege a direct
movement toward the commission of the crime by the allegation, by then and there placing
his penis at and against the thighs and rectum of the said. State v. Dawson, 45 Nev.
255, 201 P. 549, is also cited by appellant, but in that case the information failed to allege any
act showing an attempt. In this respect it alleged merely a willful, unlawful, and felonious
attempt to have carnal knowledge of a female child of the age of ten years. In State v.
Peirpoint, 38 Nev. 173, 147 P. 214, this court held that an indictment which charged that the
defendant did then and there unlawfully and feloniously attempt to carnally know upon the
person of a female child * * * of the age of 13, by procuring her to get in bed with him, the
said defendant, and soliciting her to have intercourse with him, all with the felonious intent
then and there to rape, etc.," sufficiently charged an overt act and the crime under the
statute.
to have intercourse with him, all with the felonious intent then and there to rape, etc.,
sufficiently charged an overt act and the crime under the statute.
3. It will be seen that the allegation in the instant case is more directly a step toward the
commission of the substantive crime than in that case. The information is not deficient in
failing to charge the overt act essential in this class of cases, and states facts sufficient to
constitute a public offense. It was not necessary to allege the substantive crime with which
appellant is charged with attempting to commit by more than its statutory designation, to wit,
the infamous crime against nature, either with man or beast. The statute does not further
define it, but what is meant is common knowledge. Even though a conclusion of law, it is
sufficient to enable a person of common understanding to know what is intended. By statute
the attempt to commit it is a crime. As was said in State v. McKiernan, 17 Nev. 224, 30 P.
831, and quoted with approval in State v. Switzer, 38 Nev. 108, 145 P. 925:
The technical exactness which existed under the rules of the common law has been
superceded by statutory provisions, and it is now sufficient if the offense is clearly and
distinctly set forth in ordinary and concise language * * * in such a manner as to enable a
person of common understanding to know what is intended.'
How can it be said that appellant in this case could not know what was intended by the
charge in the information of an attempt to commit the infamous crime against nature?
Assuming that he did not know what was meant by the term the infamous crime against
nature, whether it was a crime with man or beast or in what particular manner it must be
done to constitute the crime, the act alleged in the information constituting the attempt, to wit,
by then and there placing his penis at and against the thighs and rectum of the said-,
informed him specifically in this regard.
4-6. It is claimed that, even though it should be conceded that the complaining witness
was not an accomplice, the evidence does not support the charge of the information.
accomplice, the evidence does not support the charge of the information. Though several
witnesses, including officers and the father of the complaining witness, saw the latter and
appellant go into and emerge from the place where it is alleged the crime was committed, no
one testified to having seen the appellant commit the crime except the complaining witness.
But his evidence is sufficient to sustain the conviction. It tends to show more than preparation
for its commission and an actual attempt. What we have said as to the allegation of the
information showing an overt act instead of preparation applies to the evidence. There is no
merit in the contention that the evidence did not tend to disclose a present ability on the part
of appellant to commit the infamous crime against nature. It is insisted that the evidence fails
because complaining witness was an accomplice and his testimony as to the attempt is
uncorroborated as required by the statute. The state contends that the evidence discloses that
the complaining witness was a feigned accomplice and not within the meaning of the statute;
that the question therefore was properly left with the jury under the instructions of the court.
The question depends upon whether there is evidence tending to show that the complaining
witness was a feigned accomplice, for it is well established in this state and elsewhere that the
testimony of such does not require corroboration to support a conviction. State v. Smith, 33
Nev. 438, 117 P. 19; People v. Bolanger, 71 Cal. 17, 11 P. 799; State v. McKean, 36 Iowa,
343, 14 Am. Rep. 530; Campbell v. Commonwealth, 84 Pa. 187; Greenleaf on Evidence, sec.
382. It is also well established that it is for the jury to determine from the evidence whether
the witness was an actual or only a feigned accomplice. See cases cited above.
7. Where the voluntary cooperation in the commission of a crime is admitted, says Mr.
Wharton in his work on Criminal Evidence, vol. 1 (10th ed.) sec. 440, the court may charge
the jury that the witness is an accomplice; but where the evidence is conflicting as to the
manner of cooperation, the question as to whether or not the witness is an accomplice
should be submitted to the jury, under instructions as to voluntary or real cooperation in
the commission of the offense charged."
or not the witness is an accomplice should be submitted to the jury, under instructions as to
voluntary or real cooperation in the commission of the offense charged. The finding of a jury
as to the fact under proper instructions is conclusive. State v. Smith, supra.
The testimony introduced by the state was in substance as follows: The complaining
witness is a boy 18 years of age and the appellant a man of Greek nativity who conducted a
pool hall in Reno. The chief of police and Mr. Morse, a boy scout executive of the western
Nevada council, suspected the appellant of perpetrating the infamous crime against nature on
boys, and the former asked the latter to find out what he could about it. Under their directions
the boy went to the appellant's pool room on the 21st day of December, 1925, and asked him
for $7.50, telling him that he wanted the money to repair his automobile. Appellant told him
to come back on the following day and he would give it to him. The complaining witness did
so, and appellant gave him $7.50. The complaining witness told him that he might not be able
to pay him back until after pay day, and appellant replied that if he (complaining witness)
would give him something that he had promised him a couple of years ago all loan
transactions would be square. He tried to make a date with the boy for 10 o'clock that
evening. The latter told him that he was working and had to be home early. Appellant then
asked the boy to set the date, which he did, setting it at 7:30. At that time he returned, and
appellant told him that he had to work and could not go. He gave the complaining witness 50
cents on this occasion and made a date with him for the following evening. The complaining
witness returned on that evening. Appellant told him that he had to work and could not go,
and made a date for the following evening. The complaining witness then told him that if he
did not keep the date on the next evening all debts would be canceled because of his failure to
do as he promised. When he returned on the following evening the appellant told him he had
to work, but finally walked out, motioning him to follow.
The appellant led the boy to a place where a stairway went underneath a building and asked
the complaining witness to follow him down, but he refused, stating that it was dark and that
a Japanese prostitute lived down there and that he did not want to go unless he knew exactly
where he was going. The appellant said a friend of his lived down there and tried to persuade
him to go down. They walked back to a corner of the street and separated. Before separating
the appellant gave the boy 50 or 75 cents. Mr. Morse, Mr. Scott, an officer, and the father of
the complaining witness followed the pair on this occasion according to arrangements with
the complaining witness. In the latter part of January, as the complaining witness was passing
the pool room, appellant accosted him and tried to induce him to go to his room. As the
former was moving away the appellant ran after him and stopped him and tried to get him to
go to his cabin. The complaining witness refused, and was asked by appellant for another
date. The witness next saw appellant at his place of business on the afternoon of February 3,
and was asked by him for another date which was fixed at 10 o'clock that evening. Before
parting appellant gave the witness 50 cents and took some liberties with his person. The
witness informed Mr. Morse of the date and place. He returned on the hour agreed upon, and,
meeting appellant at a corner of the street, followed him to an opening between two sheds
into a small house. In this place the appellant made the attempt upon the person of the
complaining witness for which he was convicted. In going to the place the witness walked
slowly so as to give the officers who were following an opportunity to be close enough to
watch their actions. On coming out of the place the witness asked appellant if that was all he
got, and appellant gave him a few nickles, dimes, and quarters. Appellant was arrested by the
officers before he reached his place of business. We do not care to state the revolting details
of what happened at the place where the attempt was made. It is sufficient to say that,
according to the testimony of the complaining witness, he did only what the appellant asked
him to do by removing a part of his clothing and placing himself in a position on the bed
to facilitate the appellant's purpose.
he did only what the appellant asked him to do by removing a part of his clothing and placing
himself in a position on the bed to facilitate the appellant's purpose. He did not request
appellant to do anything, and never intended to permit him to proceed further than making an
attempt to commit the crime. He made several exclamations intended as signals to the officers
on the outside. He afterwards on that night appeared at the police station when the officers
were questioning appellant. He turned over to the officers or Mr. Morse all moneys received
from appellant shortly after receiving it.
The appellant was a witness in his own behalf and the only witness for the defense. He
denied that he made an attempt to commit the crime. On this state of facts the question of
whether the complaining witness was a feigned accomplice or a real accomplice whose
testimony required corroboration under the statute was properly submitted to the jury. If they
believed his testimony as to his statements to the appellant and his actions and his purpose in
seeking his company, his testimony as to the commission of the crime required no
corroboration to support a conviction.
8. An accomplice is one who knowingly, voluntarily, and with common intent with the
principal offender unites in the commission of the crime. Wharton, Crim. Ev. 440; 1 R. C. L.
158. But, says the author above quoted, there are certain relations recognized by law, in
which the voluntary cooperation of a person with the accused does not render such a person
an accomplice. Thus, those who cooperate with a view to aid justice by detecting a crime.
Such an one is termed in law a feigned accomplice. 1 R. C. L. 159.
The rule established by the weight of authority is that one who feigns complicity in the
commission of a crime in order to entrap the person on trial is not an accomplice, even
though he may have actually encouraged or counseled the commission of the crime. 16 C. J.
673. See cases cited in note 89 in support of the rule declared. It is insisted that the
commission of the crime did not originate with the appellant, but with the officers who
through the agency of the complaining witness induced him to make the attempt to
commit it and that this, together with the fact that the witness actually participated in the
attempt, makes him an accomplice.
of the crime did not originate with the appellant, but with the officers who through the agency
of the complaining witness induced him to make the attempt to commit it and that this,
together with the fact that the witness actually participated in the attempt, makes him an
accomplice.
The evidence we think shows that the purpose of committing the crime originated with the
appellant. The officers suspected him of committing such crimes, and merely originated the
idea of entrapping him by giving him an opportunity to do so. The witness did not suggest the
crime; it was suggested by appellant. Dates were asked for and money given by the appellant
to him for the purpose. The witness acted throughout under the instructions of officers, which
were to do nothing further than afford appellant an opportunity to make the attempt to
commit the crime. It is true as stated by appellant's counsel that the witness actually
participated in the attempt, but this does not make him an accomplice under the facts of this
case for the reason that there was no criminal intent on his part to commit the infamous crime
against nature. The intent must be to commit some one of the substantive crimes mentioned
in the statute. Section 6291 of the Revised Laws, supra. As said in State v. Thompson, 31
Nev. 216, 101 P. 559:
In an attempt to commit a crime, three elements are involved: First, the intent to commit
the crime. Second, performance of some act towards its commission. Third, failure to
consummate its commission.
Section 6274 of the Revised Laws, cited by appellant, has no application to the facts of
this case. It applies principally to persons concerned in the commission of a crime with a
criminal intent. That portion of the section which reads, The fact that the person aided,
abetted and counseled, encouraged, hired, commanded, induced or procured could not or did
not entertain a criminal intent shall not be a defense to any person aiding, abetting,
counseling, encouraging, hiring, commanding, inducing or procuring him, means simply
what it states, that is, if one gets another to commit a crime who was incapable of forming
or did not have a criminal intent, the lack of such is no defense to the one procuring him.
states, that is, if one gets another to commit a crime who was incapable of forming or did not
have a criminal intent, the lack of such is no defense to the one procuring him. The former
may be prosecuted and convicted as a principal under the other provisions of the section.
Counsel for appellant cite State v. Douglas, 26 Nev. 196, 65 P. 802, 99 Am. St. rep. 688,
and declare that the law of this state is settled by that decision that one who participates in a
criminal act is an accomplice. The language relied on is as follows:
The record does not show that the witness was a coconspirator,' within the meaning of
that term. He did not participate in the criminal act, and did not suggest or plan it. It does
show that the appellant planned and committed the crime. It further shows that he suggested
the commission of the crime to the witness, who had, in anticipation of some such suggestion,
been appointed a deputy sheriff by the sheriff of Lyon County, and was acting as such,
without the knowledge of the appellant, when appellant invited him to join in the commission
of the crime of larceny; that the witness consented to join in the offense, but did not, and kept
his principal, the sheriff, fully informed as to what was transpiring between him and
appellant.
It will be observed that the court was merely stating the facts of the case which showed
that the witness was not a coconspirator, one of which was that he did not participate in the
criminal act. It certainly cannot be consistently contended as tantamount to a holding that in
all cases one who participates in the commission of a crime regardless of his intent must
necessarily be a coconspirator, principal, accessory or accomplice. It will be observed also
that the court said, It [the record] also shows that all that was done or said by the witness
was without criminal purpose or intentciting in support of this statement Campbell v. Com.
84 Pa. 187. In that case it was held that a detective who joins a criminal organization for the
purpose of exposing and bringing the criminals to punishment and honestly carries out the
design is not an accessory before the fact, although he may have encouraged and counseled
the parties who were about to commit crime, if in so doing he intended that they should
be discovered and punished.
he may have encouraged and counseled the parties who were about to commit crime, if in so
doing he intended that they should be discovered and punished.
9. The question of whether or not the complaining witness was an accomplice was under
the facts of this case submitted to the jury by proper instructions. Instruction No. 2 reads as
follows:
The court instructs the jury that the question of whether or not a witness is an accomplice
is to be decided by the jury. You are further instructed that one who without criminal purpose
or intent feigns or simulates complicity in the commission of a crime merely for the purpose
of securing evidence against the person on trial is not an accomplice.
This is a correct statement of the law. It does not, as claimed by appellant, assume that the
witness was a feigned accomplice.
10. In instruction No. 7 the court stated the statute as to the corroboration necessary in the
case of an accomplice, and added:
In this connection you are instructed that if the said crime was committed as alleged in
the information by the mutual criminal consent of the parties, they are equally guilty thereof,
and that the said , the complainant, if the jury believe from the evidence that he
criminally participated, then in law he was what is known as an accomplice, and it is the law
of this state that no person should be convicted on the uncorroborated testimony of such an
accomplice.
The instruction is complained of on account of the words, mutual criminal consent, and
that he criminally participated, it being claimed as heretofore stated that if the witness
participated in the attempt, regardless of any criminal intent, he was an accomplice. What we
have said as to the evidence on this point applies to the instruction, and it is not erroneous in
this respect. If the jurors were satisfied from the evidence that the witness did not intend to
participate in the commission of the infamous crime against nature and was acting merely to
procure evidence against appellant of an attempt to commit the crime, his testimony could
not be regarded as the testimony of an accomplice.
of an attempt to commit the crime, his testimony could not be regarded as the testimony of an
accomplice. This instruction, together with instruction No. 2, properly submitted the question
to the jury.
11. It is also insisted that the instruction is erroneous in that it nowhere tells the jury that
the fact that a crime was committed by the appellant must be corroborated. The instruction is
in the exact language of the statute as to the extent of the corroboration necessary to support a
conviction. It is therefore correct in this respect.
12. Instruction No. 8 is complained of. It reads:
The court instructs the jury that in a prosecution for the infamous crime against nature, or
for an attempt to commit said crime, it is immaterial whether the person so abused, if he was
so used or abused, consented thereto, and consent to such an act or attempt constitutes no
defense.
The instruction is correct. The proposition that consent of the prosecuting witness is no
defense in a case of this character is so well established that citation of authority in support of
the rule is unnecessary. It is argued against the instruction that it deprived the appellant of a
substantial defense, to wit, that the commission of the act was procured through the
connivance and consent of the officers and through their agent, the complaining witness. If
this were true, it is said, the consent and participation in the act so committed would render
the defendant guiltless, it being the policy of the law not to punish for an offense the
commission of which was induced by and participated in by the acts and conduct of the
agents of the state.
Under the state of facts assumed in the argument the complaining witness could have been
found to have been an accomplice, providing his consent was given with criminal intent, but
this would have amounted to only a failure of proof on account of the lack of corroboration
required by the statute. The jury, however, found on substantial evidence and under proper
instructions that the complaining witness was not an accomplice.
the complaining witness was not an accomplice. The instruction therefore did not deprive
appellant of a substantial defense.
13. Appellant complains of instruction No. 1, and insists that it is erroneous in that it did
not detail the acts essential to constitute the infamous crime against nature, or an attempt to
commit that crime. The instruction sets out the information, defines an attempt to commit a
crime in the language of the statute, states the elements involved in an attempt to commit a
crime, and tells the jury that, in view of the foregoing, if it finds from the evidence and
beyond a reasonable doubt that the defendant did in Washoe County, Nevada, on the 3d day
of February, 1926, or thereabout, willfully, unlawfully, and feloniously make the attempt in
the manner charged in the indictment, then it should find the defendant guilty as charged. The
instruction sets out the essential elements of an attempt to commit a crime, and states the
substantive crime attempted, in the language of the statute. If appellant desired a more
specific instruction on this point he should have prepared and presented such an instruction to
the court. State v. Switzer, 38 Nev. 108, 145 P. 925.
Finding no error in the record, the judgment is affirmed.
It is so ordered.
____________
50 Nev. 16, 16 (1926) In Re Hansen's Estate
IN RE HANSEN'S ESTATE
HANSEN v. BIGGANE
No. 2726
September 11, 1926. 248 P. 891.
1. Executors and AdministratorsFinal Account.
Under Rev. Laws, sec. 6112, order allowing administrator's final accounting of estate exceeding
$13,000 was appealable by heirs at law as interested parties.
2. Executors and AdministratorsCompensation.
Under Rev. Laws, secs. 6038, 6040, district court was without power to allow administrator increased
compensation for extraordinary services, statutory commissions being intended as full compensation
except as to additional just and reasonable allowance for services respecting realty.
3. Executors and AdministratorsAttorney's Fee.
Under Rev. Laws, sec. 6126, fee of attorneys for services to decedent's estate is charge on estate to be
allowed by court.
4. Executors and AdministratorsAttorney's Fee.
Under Rev. Laws, sec. 6126, attorney for decedent's estate is entitled to allowance of only reasonable
fees, and court is without power to grant allowance for extraordinary services.
5. Executors and AdministratorsBad Faith.
Whether there was bad faith in appointment of administrator and management of estate by
administrator and his attorney held for court of probate to determine, and will not be passed on originally
by supreme court.
C. J.-CYC. REFERENCES
Appeal and Error3 C. J. sec. 511, p. 648, n. 46.
Executors and Administrators24 C. J. sec. 931, p. 310, n. 49; p. 311, n. 61; sec. 2423, p. 988, n. 24; sec.
2523, p. 1047, n. 66.
Appeal from Ninth Judicial District Court, White Pine County; C. J. McFadden, Judge.
In the matter of the estate of Ole Hansen, deceased. From an order allowing and
confirming the final account of John W. Biggane, administrator of the estate of decedent, Jens
Christian Hansen and others appeal. Cause remanded.
Le Roy F. Pike, Henshaw, Black & Lyders, and Eric Lyders, for Appellants:
Fees of administrator and attorney are grossly excessive. Osborn's Estate, 58 P. 521;
McDermid's Estate, 222 P. 295; Kirchoff v. Bernstein, 181 P. 746; Rev. Laws, 6040.
Court cannot make extra allowance in absence of claim therefor. Steel v. Holladay, 26 P.
562; Partridge's Estate, 51 P. 82.
One who obtains administration of estate by false allegation is not entitled to
compensation for himself or attorney, even though estate is properly administered. Hall v.
Santangelo, 60 So. 168.
Administrator and attorney disregarded law application to administration and should
receive no compensation. Inventory was filed six years, instead of twenty days, after
appointment. Rev. Laws, 5942. First account should be filed within thirty days after claims
are acted upon. Rev. Laws, 6041. Full account must be filed by administrator. Rev. Laws,
6042. Seven years after only claim filed was acted upon, account was filed, not by
administrator, but by his brother. Administrator may not delegate discretionary duties to
another. 24 C. J. 1006; Cheever v. Ellis, 96 NW. 1067.
Courts frown upon mismanagement of estates. Nicholson's Estate, 1 Nev. 516; Lucich v.
Medin, 3 Nev. 98. Property was allowed to depreciate; claim due estate was neglected;
interest on deposit was not collected. Administrator who mismanages or defrauds estate may
be deprived of compensation. 24 C. J. 997; Estate of Rutledge, 56 NE. 511; Estate of
Delaney, 41 Nev. 384.
Uncertainty as to heirs does not justify delay in closing administration. Delaney's Estate,
supra.
Appeal should not be dismissed. Record contains all papers used on hearing below. Rev.
Laws, 5326.
J. M. Lockhart, for Respondents:
No fraud was practiced in obtaining appointment. Petitioner alleged he had charge of
property and had obligated himself to pay funeral expenses, clearly putting himself in class
11, Rev. Laws, 5894. Court found petitioner was creditor. When findings are within issues,
this court will assume they are supported by evidence. Young v. Holman, 47 Nev. 4.
As no claims were filed against estate, first account was not required.
was not required. Rev. Laws, 6041. Funeral expenses do not come within this section. It is
not necessary to get court order to pay them.
Administrator is not obliged to pay any expenses, except those of last sickness and funeral,
nor any legacy, until so ordered by court. Rev. Laws, 6055.
Rev. Laws, 6042, requires account to be under oath. That was done.
Much, rather than little, work was required in settlement of this estate. In comparison with
work done, attorney in Shufeldt v. Hughes, 104 P. 253, received double or treble amount
received by attorney in this case.
Decisions cited regarding wasted estates do not apply, as this estate increased steadily in
value during administration.
Unless trial court is shown to have abused discretion in allowance of attorney's fee,
supreme court will not interfere, particularly when there is no evidence in record as to what
services were reasonably worth. In Re Davis' Estate, 104 P. 521.
Charge of fraud is too silly to deserve comment. Each step taken was submitted to court,
and approved.
Direct appeal should not be permitted. In each case cited, objections were urged in trial court.
Our court rules and practice provide proper procedure. In Re Hegarty's Estate, 47 Nev. 369.
It is province of trial court to decide all questions of fact. McNee v. McNee, 49 Nev. 90.
OPINION
By the Court, Sanders, J.:
Appellants are subjects of the kingdom of Denmark, and are the heirs at law and the
distributees of the estate of Ole Hansen, who died in Los Angeles, Calif., in 19l8, intestate,
leaving an estate in Ely, White Pine County, Nevada, which place was deceased's domicile.
The deceased left no known heirs, and the identity of appellants as his heirs was established
through depositions taken under the direction of the Consul General of the United States at
Copenhagen, upon interrogatories submitted upon an order of the court below in the matter of
said estate.
On the 18th day of April, 1918, John W. Biggane qualified as administrator of said estate,
and on the 20th day of May, 1925, as such administrator, filed his first and final account of
his trust, showing total receipts of $14,716.22 and total disbursements of $1,668.90, thus
leaving a balance in the hands of the administrator subject to distribution upon court order of
$13,047.32. Upon the filing of his account the administrator petitioned for its allowance and
confirmation, and prayed distribution of the estate and his discharge as administrator. In the
petition it was represented that all the debts of the deceased and of his estate and all expenses
of administration had been paid except the commissions, expenses, and allowances due the
administrator and the attorney of record in the matter of said estate.
We note from the proceedings below that the affairs of the estate were not involved, and
that the deceased was not indebted, and there was no outstanding indebtedness against his
estate other than the funeral expenses. The legal work of the estate consisted simply of
preparing the usual papers incident to the settlement of an estate and the preparation of
applications and obtaining orders for the management of the property of the estate. The estate
consisted of $5,884.67 on deposit in the First National Bank of Ely, Nevada, bonds of the
White Pine Telephone Company of the face value of $5,000, and three lots at the corner of
Fifth and Campton Streets, Ely, Nevada, of the appraised value of $2,650.
On the 19th day of June, 1925, upon notice previously given, the court allowed and
confirmed the account of the administrator, and ordered that out of the sum of $13,047.32, the
balance in the hands of the administrator subject to distribution, there be paid $1,300 as the
compensation of the administrator and $2,000 as compensation for the attorney of
record, reciting in the order or decree as follows:
the compensation of the administrator and $2,000 as compensation for the attorney of record,
reciting in the order or decree as follows:
And which sums approved as a compensation to the said parties for such services, the
services rendered by the administrator and his said attorney, and being deemed extraordinary
services in addition to their regular duties.
Appellants made no appearance in the matter of the administration of said estate and took
no steps in the court below to have the settlement of the estate opened, vacated, or set aside,
but appealed from the order of allowance and confirmation of the administrator's final
account, and particularly that portion thereof which fixed the compensation of the
administrator at $1,300 and that of his attorney at $2,000. In support of their appeal, based
solely upon a transcript of the proceedings in the matter of said estate, appellants insist that
the compensation allowed the administrator is in violation of the statute; that the
compensation of the administrator and his attorney is excessive; that because of their
mismanagement and negligence said parties forfeited their right to any compensation
whatever; and that the court in the settlement of said estate should have surcharged the
administrator with interest at the legal rate on the funds of the estate kept over for a long
period of time in the First National Bank of Ely, Nevada, of which institution the
administrator was cashier.
1. The decision and decree allowing the final account of the administrator is appealable,
and appellants, being interested in and affected and aggrieved by said decision and decree,
had a statutory right of appeal. Section 6112, Rev. Laws. Consequently the motion of the
respondents to dismiss the appeal for want of a bill of exceptions is not well taken.
It is provided by statute that upon such an appeal the appellate court may in its discretion
reverse, affirm, or modify the judgment, order, or decision appealed from. Section 6113, Rev.
Laws. But there being nothing before the court other than the proceedings incident to the
settlement of estates of deceased persons, we shall review the proceedings only for the
purpose of determining whether the court exceeded its jurisdiction, power, and authority
in fixing the compensation of the administrator and his attorney in the amounts specified
as increased compensation for extraordinary services rendered the estate.
the settlement of estates of deceased persons, we shall review the proceedings only for the
purpose of determining whether the court exceeded its jurisdiction, power, and authority in
fixing the compensation of the administrator and his attorney in the amounts specified as
increased compensation for extraordinary services rendered the estate.
Section 6038, Rev. Laws, provides:
He [the executor or administrator] shall be allowed all necessary expenses in the care and
management as well as settlement of the estate, and for his services such fees as provided by
law; but when the deceased shall, by his will, make some other provision for the
compensation of his executor, this shall be deemed a full compensation for such services,
unless the executor files a renunciation, in writing, of all claim for the compensation provided
by the will.
Section 6040, Rev. Laws, provides:
When no compensation shall have been provided by the will, or the executor shall
renounce all claims thereto, he shall be allowed commissions upon the whole amount of the
personal estate accounted for by him, as follows: For the first thousand dollars, at the rate of
six per cent; for all above that sum and not exceeding five thousand dollars, at the rate of four
per cent; for all above five thousand dollars, at the rate of two per cent and the same
commissions shall be allowed to administrators. In all cases such additional allowance may
be made by the court for services in regard to the real estate, when it shall be made to appear
that the same is just and reasonable.
2. Under such statutory provisions it is universally held that personal representatives can
be allowed only the compensation fixed by the statute even though the administration of the
estate has been especially difficult or they have rendered unusual services which have
benefited the estate. 24 Cyc. 988, note 24. As a result of section 6040, Rev. Laws, which fixes
the exact amount of commissions allowed an executor or administrator, the court below
exceeded its powers in allowing to the administrator an increased compensation for
extraordinary services in addition to his regular duties.
extraordinary services in addition to his regular duties. The statutory commissions are
intended to be a full compensation for the services rendered during the entire administration,
except an additional allowance may be made by the court for services in regard to the real
estate, when it shall be made to appear that the same is just and reasonable. It is manifest that
the court did not follow the statute in respect to the allowance of commissions and took no
note of the statute in respect to an additional allowance in reference to the real property. The
real property was sold upon court order in accordance with the requirements of the statute,
and the sale was confirmed for the priced of $l,800.
3, 4. As to the compensation of attorneys in the matter of settlement of estates, section
6126, Rev. Laws, provides:
This act shall be liberally construed, to the end that justice may be done all parties, and as
speedy settlement of estates at the least expense secured; and all proceedings in matters of
estate shall be proceedings of record as other actions and proceedings; and all attorneys for
estates or executors or administrators appointed in the proceedings shall be attorneys of
record with like powers and responsibilities as attorneys in other actions and proceedings, and
shall be entitled to receive a reasonable compensation, to be paid out of the estate they
respectively represent for services rendered, to be allowed by the court.
Under this statute the fees of attorneys are a charge upon the estate to be allowed by the
court. In Re Hegarty's Estate, 47 Nev. 369, 222 P. 793. But the fees allowable under the
statute are required to be reasonable. Unlike California, our legislature has not seen fit to
provide a uniform standard for the determination of what shall be allowed for the services of
an attorney, but leaves it to the discretion of the court; and, unlike California, no provision is
made for increased compensation for extraordinary services rendered an estate by the attorney
of record. Consequently, in the absence of a statute, we are not called upon in this case to
consider whether the services rendered were extraordinary or not.
whether the services rendered were extraordinary or not.
We are of the opinion that the court, in basing the compensation of both the administrator
and his attorney upon what it deemed extraordinary services in addition to their regular
duties, committed error.
5. In the present state of the record we cannot in fairness to the court below uphold the
contention of counsel for appellants that bad faith was displayed in the appointment of the
administrator and in the management of the estate by the administrator and his attorney.
These were matters peculiarly within the province of the court of probate to consider and
determine upon a proper showing, and we decline to convert this court into one of original
jurisdiction and say that the respondents, because of their alleged derelictions, forfeited their
right to any compensation whatever for the services rendered the estate, or that the
administrator should be surcharged with interest on the funds of the estate.
The order will be that the cause be remanded for such further proceedings as the parties
may be advised with respect to the compensation of the administrator and his attorney under
the sections of the statute above set out.
It is so ordered.
____________
50 Nev. 24, 24 (1926) Water Co. v. Belmont Dev. Co.
WATER CO. v. BELMONT DEV. CO.
No. 2714
October 5, 1926. 249 P. 565.
1. Appeal and ErrorJudgment.
Judgment will be affirmed, in view of Rev. Laws, sec. 5328, where appellant contended only that
court erred in overruling his motion for new trial and no motion for new trial was in the record, since
reviewing court cannot determine upon what ground motion for new trial was based.
2. Appeal and ErrorPresumption.
Court in overruling motion for new trial is presumed to have committed no error.
C. J.-CYC. REFERENCES
Appeal and Error4 C. J. sec. 2227, p. 486, n. 6; sec. 2733, p. 782, n. 45.
Appeal from Fifth Judicial District Court, Nye County; Frank T. Dunn, Judge.
Action by the Water Company of Tonopah against the Tonopah Belmont Development
Company. From a judgment for plaintiff and order denying new trial, defendant appeals.
Affirmed. (Sanders, J. dissenting.)
Hugh H. Brown and Walter Rowson, for Appellant:
This court will pass on evidence when presented in proper bill of exceptions, and when
motion for new trial has been made and denied. Corcoran v. Dodge, 45 Nev. 406; Giannotti v.
De Bock, 47 Nev. 332.
Transcript of proceedings certified by reporter shall constitute bill of exceptions. Stats. 1923,
163.
Bill of exceptions contains all oral and documentary evidence. Therefore court has power
to pass on sufficiency of evidence.
Wm. Forman and Wm. J. Forman, for Respondent:
Every presumption is in favor of correctness of proceedings in court below, in absence of
evidence to contrary. State v. Kelly, 1 Nev. 226; Adams v. Rogers, 31 Nev. 163.
Record does not contain notice of intention, notice of motion, instructions complained of, nor
memorandum of errors. There is no error on face of judgment roll. There is, therefore,
nothing before this court for review. Corcoran v. Dodge, 45 Nev. 410; Rev. Laws, 5322.
OPINION
By the Court, Coleman, C.J.:
This is an appeal from the judgment in favor of the plaintiff and from the order denying
the defendant's motion for a new trial. An order was made herein striking certain papers from
the record, among which was defendant's motion for a new trial. 49 Nev. 172, 241 P. 1079.
We will refer to the parties as designated in the trial court.
1. The plaintiff now asserts that, since the defendant makes no contention other than that
the court erred in overruling defendant's motion for a new trial, the judgment and order
appealed from must be affirmed. This contention is based upon the proposition that, no
motion for a new trial being in the record, this court cannot ascertain upon what theory the
motion for a new trial was urged upon the trial court, and hence we cannot say whether or not
prejudicial error was committed in denying the motion.
Counsel for defendant on the other hand say that a bill of exceptions is before us
containing all of the evidence, and from an inspection thereof it will be seen that the evidence
does not sustain the verdict. If we were to concede that the assertion of the defendant is well
founded, nevertheless we would have to affirm the judgment.
There are several grounds upon which a motion for a new trial may be based, among them
being misconduct of the jury, newly discovered evidence, accident or surprise, insufficiency
of the evidence to justify the verdict, error in ruling upon the evidence, and upon instructions
claimed to be erroneous. Section 5328, Rev. Laws 1912, expressly provides that where the
appeal is based upon the ground that the evidence is insufficient to justify the verdict or
decision of the court or upon alleged errors in ruling upon the evidence, or upon instructions
claimed to be erroneous, a motion for a new trial must be made and determined before the
appeal is taken. If the motion for a new trial was based solely upon the ground last mentioned
and the court overruled the motion, it is obvious that if the evidence be insufficient to
justify the verdict it could not be said that the court committed error if there was no
showing of error in the giving of an instruction even though the evidence was clearly
insufficient to justify the verdict.
motion, it is obvious that if the evidence be insufficient to justify the verdict it could not be
said that the court committed error if there was no showing of error in the giving of an
instruction even though the evidence was clearly insufficient to justify the verdict. As has
been said repeatedly, cases are appealed and reversed for the correction of errors. Truckee
River G. E. Co. v. Durham, 38 Nev. 311, 149 P. 61; Giannotti v. De Bock, 47 Nev. 332, 221
P. 520.
2. The mere fact that the motion for a new trial was denied does not justify the assumption
that the trial court erred. In fact, the presumption is that no error was committed. State v.
Boyle, 49 Nev. 386, 248 P. 48.
Not being able to determine from the record upon what ground the motion for a new trial
was based, we are unable to say that error was committed, hence the judgment must be
affirmed.
It is so ordered.
Sanders, J.: I dissent.
____________
50 Nev. 27, 27 (1926) State v. Monahan
STATE v. MONAHAN
No. 2725
October 5, 1926 249 P. 566.
1. Criminal LawPrejudice Cured.
Any prejudice resulting to defendant because after jury had been accepted and sworn district attorney
was permitted to indorse on information names of witnesses known to district attorney before trial, in
violation of 3 Rev. Laws, p. 3399, sec. 2, held cured by granting defendant's motion for continuance to
prepare to meet testimony of additional witnesses.
2. Criminal LawNames of Witnesses on Information.
Under 3 Rev. Laws, p. 3399, sec. 2, indorsement of names of witnesses on information is largely a
matter of discretion with court, and, in absence of showing of abuse, or that some substantial injury had
resulted to accused, an order permitting such indorsement even after trial has commenced does not
constitute of itself reversible error.
3. EmbezzlementLimitation.
Rev. Laws, sec. 6653, providing that conversion of bailee, agent, etc., of money, goods, or property
intrusted to his possession shall constitute embezzlement, is limited to cases in which there is a relation of
trust and confidence.
4. EmbezzlementAgent Includes Broker.
Rev. Laws, sec. 6653, providing that any agent, etc., shall be guilty of embezzlement who converts
the money, goods, or property of another to his own use, includes brokers, though they are not named
therein.
5. EmbezzlementTransaction Constituting.
Transaction in which broker was ordered to buy stock, and received part payment, and subsequently
payment in full, but never delivered the stock, but gave various and conflicting excuses for his failure to
do so, held not to create relation of debtor and creditor, but to constitute embezzlement of the money
within Rev. Laws, sec. 6653.
6. EmbezzlementIntent.
Where a deliberate diversion by a broker of money transmitted to him by his principal is shown, it
requires but slight evidence to satisfy jurors as to existence of felonious or criminal intent.
7. EmbezzlementBurden of Proof.
Where prosecution in trial of broker for embezzlement made a prima facie case, defendant was
required to adduce evidence in denial or explanation of incriminating circumstances.
8. Criminal LawEvidence of Similar Transactions.
In prosecution of broker for embezzlement, admitting evidence of financial circumstances of
defendant and of similar transactions with other customers by him at or immediately before commission
of the offense held not erroneous, where jury were fully instructed as to purpose for which evidence
could be considered. C.J.CYC.
C. J.CYC. REFERENCES
Brokers9 C J. sec. 1, p. 509, n. 2; sec. 16, p. 515, n. 62.
Criminal Law16 C. J. sec. 1159, p. 596, n. 59; p. 597, n. 60, 62, 63, 64; sec. 2027, p. 796, n. 55; p. 797, n.
60; sec. 2157, p. 856, n. 23; 17 C. J. sec. 3613, p. 281, n. 15 (new).
Embezzlement20 C. J. sec. 12, p. 422, n. 91, 93; sec. 30, p. 441, n. 12; sec. 36, p. 445, n. 48; p. 447, n. 52;
sec. 78, p. 482, n. 34; sec. 83, p. 488, n. 66.
Appeal from Fifth Judicial District Court, Nye County; Frank T. Dunn, Judge.
J. E. Monahan was convicted of embezzlement, and he appeals. Affirmed.
McCarran & Mashburn, for Appellant:
Whole deal from beginning to end was marginal stock gambling transaction. Receipt
shows stock, not money, was to be delivered to Carden. Monahan, as he had right to do,
mingled Carden's money with his own. It was general, not special deposit, to be used by
Monahan generally in his business. Failure to return deposit was not embezzlement. Relation
established was that of debtor and creditor. Fiduciary relations did not exist. People v.
Thomas, 82 N. Y. S. 219; Lamprecht v. State 95 NE. 656; 9 R. C. L. 1274.
Criminal courts should not be called upon to act as collection agencies in civil suits.
People v. Paine, 72 N. Y. S. 3; People v. Flynn, 118 N. Y. S. 534.
Indictment charges embezzlement of money, not stock. Proof of embezzlement cannot be
sustained by proof of embezzlement of other property. People v. Caselton, 164 SW. 495;
People v. Peck, 253 SW. 1021.
Broker who invests money in stock as directed cannot be convicted of embezzlement of
such money, even upon upon proof of fraudulent conversion of that stock. People v. Peipsic,
62 P. 311.
There must be proof that conversion was with intent to steal. State v. Rothrock, 45 Nev.
214.
Failure to return money without proof of fraudulent appropriation is not sufficient to
constitute crime. Where no time limit is fixed for delivery, demand is necessary. Demand was
made for stock, not money.
Monahan was not bound to deliver stock until margin period had expired. State v. Weber,
31 Nev. 385.
Names of witnesses should have been indorsed on information as early as possible. Stats.
1913, 294. By adding names after jury was sworn, prosecutor deprived defendant of
knowledge of witnesses against him. Sweenie v. State, 80 NW. 815; People v. Hall, 12 NW.
665; People v. Quick, 25 NW. 302.
Evidence of vague and uncertain character offered for purpose of proving defendant had
been guilty of similar offenses should never be admitted under any pretense whatever. Baxter
v. State, 110 NE. 456; People v. Glass, 112 P. 281.
M. A. Diskin, Attorney-General, Wm. J. Forman, Deputy Attorney-General, and Joseph T.
Murphy, District Attorney, for Respondent:
This action was brought under Rev. Laws, 6653, providing that any bailee of money who
converts it to his own use with intent to steal is guilty of embezzlement.
Transaction ceased to be marginal one when Carden paid defendant full amount for
purpose of purchasing and delivering stock to him. Facts do not bring case within rule of
People v. Thomas, 82 N. Y. S. 218.
Money deposited was not used for proper purpose, but was used by defendant to pay his
own overdraft. Conviction for embezzlement was upheld under very similar circumstances in
People v. Meadows, 121 N. Y. S. 17. People v. Lorden, 217 P. 117.
Relation of debtor and creditor did not exist. It is doubtful if it would be defense, even if it
existed, because defendant's civil liability would not be defense to violation of statute.
Goldman on Stock Exchange Laws, 109.
Monahan never bought stock. It would be foolish to charge him with embezzling
something he never procured.
Intent is question of fact to be determined from evidence. State v. Trolson, 21 Nev. 419. In
State v. Weber, 31 Nev. 3S5
In State v. Weber, 31 Nev. 385, cited by appellant, there was no proof that defendant ever
appropriated money.
Evidence that defendant was in straightened circumstances tended to show temptation or
motive and was admissible. 15 Cyc. 592; Dimmick v. U. S., 135 Fed. 257; 1 Wigmore, 475.
Evidence of other acts of embezzlement at about same time is relevant to show intent,
even though such evidence tends to prove other distinct offenses. Underhill (3d ed.), sec. 447.
Fact that evidence introduced to show motive also shows guilt of totally dissimilar offense
does not justify its rejection. Underhill (3d ed.), sec. 154.
Names of witnesses objected to, and materiality of their testimony, were not known when
information was filed. Names of such witnesses may be indorsed on information before trial.
3 Rev. Laws, pp. 3399, 3412. Late indorsement might entitle defendant to continuance, but
not reversal. State v. Kemplin, 134 NW. 275. Some courts hold indorsement may be made
even after trial has started. Gore v. People, 44 NE. 500; State v. Price, 40 P. 1000.
No demand is necessary for particular article alleged to have been embezzled. 20 C. J. sec.
17; Underhill (3d ed.), sec. 448.
OPINION
The defendant, a mining stockbroker, was convicted for embezzling $600, the money of
one H. W. Carden. He appeals from the judgment of conviction and from an order denying
his motion for a new trial.
The information upon which the defendant was tried reads as follows:
That he, the said J. E. Monahan, while engaged in the business of and acting as a
stockbroker in the town of Tonopah, Nye County, Nevada, had placed into his possession,
and was intrusted with, property and money having a greater value than $50, to wit, $200
currency, lawful money of the United States, together with two bank checks drawn on the
Lander County Bank, of Austin, Nevada, each of the said checks being made payable to
the said J. E. Monahan in the sum of $200, and signed by one H. W. Carden; the said H. W.
Carden having on deposit with the said bank the said sums of money at the said time, and
the said checks were properly indorsed.
having a greater value than $50, to wit, $200 currency, lawful money of the United States,
together with two bank checks drawn on the Lander County Bank, of Austin, Nevada, each of
the said checks being made payable to the said J. E. Monahan in the sum of $200, and signed
by one H. W. Carden; the said H. W. Carden having on deposit with the said bank the said
sums of money at the said time, and the said checks were properly indorsed. The said checks
were in due course of business deposited by the said J. E. Monahan with the Nevada First
National Bank of Tonopah, Nevada, to the credit of the account of the said J. E. Monahan,
and in due course payment made thereon to the said Nevada First National Bank by the
Lander County Bank, upon which the said checks were drawn. The total value of the said
lawful money of the United States, together with the said checks, was $600.
The aforesaid money and checks were placed in his, the said J. E. Monahan's possession,
and intrusted to him by the H. W. Carden of Round Mountain, Nye County, Nevada, the
lawful and rightful owner of the said checks and money, for the sole purpose of purchasing
5,000 shares of White Caps Mining Company stock, which stock was to be purchased at the
market price of 12 cents per share, and that he, the said J. E. Monahan, was intrusted with the
aforedescribed money and checks of a value of $50, to wit, $600 for the sole and only
purpose of purchasing the said mining stock and turning the said stock over to him, the said
H. W. Carden, in the regular course of business, as soon as he, the said J. E. Monahan, acting
then and there as a stockbroker, should purchase the said stock; and that he, the said J. E.
Monahan, was not intrusted with the said property and money aforedescribed for any other
purpose whatsoever, and that he, the said J. E. Monahan, did represent to him, the said H. W.
Carden, that he had purchased the said stock, when in truth and in fact he, the said J. E.
Monahan, knew that he had not purchased the said stock, and that he, the said J. E. Monahan,
did convert the said money and checks in the sum of $600 to his own use and benefit, and
appropriate the same with an intent to steal the same and to defraud the lawful and
rightful owner, H. W. Carden, thereof, and did dispose of the same for his, the said J. E.
Monahan's own use and benefit."
to his own use and benefit, and appropriate the same with an intent to steal the same and to
defraud the lawful and rightful owner, H. W. Carden, thereof, and did dispose of the same for
his, the said J. E. Monahan's own use and benefit.
The undisputed facts, omitting details, are as follows:
At the time of the commission of the alleged offense the defendant was engaged in a
general brokerage business in Tonopah, Nye County, Nevada, under the name of the Divide
Brokerage Company. On the 9th day of June, 1925, H. W. Carden, who lived at Round
Mountain in said county, went to the defendant's place of business, and gave to defendant an
order in writing to buy 5,000 shares of the capital stock of the White Caps Mining Company
at 12 cents per share. The order is as follows:
6/925. Buy 5,000 W Caps @ 12 B 60. H. W. Carden.
At the request of the defendant, Carden gave him the sum of $300 to use on the purchase
of said stock, and the defendant, agreeing to make the purchase, received the money for that
specific purpose. Carden subsequently visited the place of business of the defendant, and
upon inquiry was told by the defendant that the 5,000 shares of stock had been purchased in
San Francisco. The stock of the White Caps Mining Company was a listed stock on the San
Francisco mining stock exchange, and was actively dealt in on the 9th day of June, 1925, at
12 cents per share. On the 22d day of June, 1925, H. W. Carden again visited the place of
business of the defendant, and asked that, if he were to pay the balance in full upon the stock,
would the defendant deliver the stock to him immediately? The defendant replied,
Absolutely, just as quickly as it could be shipped from Frisco. Thereupon Carden, relying
upon the defendant's representation that he had purchased the stock, gave to the defendant
$300 to pay for the stock in full, with the understanding that the stock would be delivered
without delay, and the defendant gave Carden this receipt: "6J22, 1925.
6/22, 1925. Received from H. W. Carden three hundred dollars in full bot 5,000 W Caps
@ 12 cents stock due you $300.00.
J. E. Monahan.
Thereafter the complainant Carden made frequent demands upon the defendant for the
stock, but each demand was met with various and conflicting excuses. On the 9th day of July,
1925, Carden visited the office of the defendant, and pressed him for the delivery of the
stock. The defendant represented that the stock would be mailed to complainant at Round
Mountain on the next Monday, and that it would be no later than the following Thursday in
arriving there. Carden said, That will do, and left the office in a disgruntled frame of mind.
Shortly thereafter the defendant called Carden back into his office, and told him that he had
borrowed 1,500 shares of White Caps stock which he could have upon receipting therefor.
Carden accepted the 1,500 shares and gave this receipt:
791925. Received from J. E. Monahan fifteen hundred shrs dollars Wh Caps Bal due
HWC 3,500 fully paid. H. W. Carden.
On the same day, to wit, the 9th of July, 1925, Carden went to the office of Joseph T.
Murphy, district attorney of Nye County, and laid before him the entire transaction between
him and the defendant, and on the advice of Mr. Murphy the following letter was addressed to
the defendant:

Tonopah, Nevada, July 9, 1925.
Mr. J. E. Monahan, Tonopah, NevadaDear Sir:
Your are hereby notified that the undersigned demands the immediate surrender of thirty-five
hundred (3,500) shares of White Caps Mining Company stock, due the undersigned by you,
as evidenced by your receipt of June 22, 1925. And you are hereby notified that between this
date and the date of the surrender of the thirty-five hundred (3,500) shares of stock, the
undersigned will hold you liable for the highest market price which the stock reaches in the
meantime. H. W. Carden.
Carden again visited the office of Mr. Murphy, and a criminal complaint was filed in the
justice court of Tonopah township charging the defendant with the embezzlement of $600.
The date of the filing of the complaint is not given, but it appears affirmatively from the
transcript that such proceedings were had thereon as resulted in the filing of the foregoing
information in the court below on the 1st day of August, 1925, upon which was indorsed the
names of three witnesses. The case was set for trial on the 14th day of October, 1925.
Upon the trial the prosecution, over the defendant's objections, was permitted to adduce
evidence of the financial circumstances of the defendant and evidence of similar transactions
with other customers by the accused at or immediately before the time of the commission of
the alleged offense. Upon the close of the evidence for the prosecution the defendant moved
the court to advise the jury to acquit the defendant, upon the ground that the facts proved by
the prosecution were not sufficient to establish the guilt of the defendant of embezzlement.
The motion was denied. The defendant introduced no evidence, and rested his case upon
instructions given at the request of both the state and the defendant. The jury returned this
verdict:
We, the jury in the above-entitled cause, find the defendant, J. E. Monahan, guilty as
charged in the information.
We have very carefully considered the admitted facts, and the result to which we have
arrived will be stated after disposing of a preliminary question of practice arising under the
statute in reference to prosecutions for crimes by information. Statutes 1913, p. 293; 3
Revised Laws, p. 3399.
Section 2 of said act provides as follows:
All information shall be filed in the court having jurisdiction of the offenses specified
therein, by the district attorney of the proper county as informant, and his name shall be
subscribed thereto by himself or by his deputy. He shall indorse thereon the names of such
witnesses as are known to him at the time of filing the same, and shall also indorse upon
such information the names of such other witnesses as may become known to him before
the trial at such time as the court may, by rule or otherwise prescribe; but this shall not
preclude the calling of witnesses whose names, or the materiality of whose testimony are
first learned by the district attorney upon the trial."
same, and shall also indorse upon such information the names of such other witnesses as may
become known to him before the trial at such time as the court may, by rule or otherwise
prescribe; but this shall not preclude the calling of witnesses whose names, or the materiality
of whose testimony are first learned by the district attorney upon the trial.
1, 2. The transcript shows that, after the jury had been accepted and sworn to try the case,
the district attorney was permitted, over the defendant's objections, to indorse on the
information the names of twenty-four witnesses known to the district attorney before the trial.
The defendant insists that the indorsement was in violation of the statute, deprived him of a
substantial right, and was prejudicial and reversible error. Upon motion of the defendant, the
case was continued for a period of three days to enable the defendant to prepare to meet the
testimony of the additional witnesses. If any prejudice resulted from the indorsement, it was
cured by the granting of the defendant's motion for a continuance. The weight of authority is
to the effect that under statutes such as ours the indorsement of names of witnesses upon an
information is largely a matter of discretion with the court; and, in the absence of a showing
of abuse, or that some substantial injury has resulted to the accused, an order permitting such
indorsement, even after the trial has commenced, does not constitute of itself reversible error.
16 Corpus Juris, p. 796, sec. 2027.
The delay, inconvenience, and expense incident to the continuance of this case in the midst
of trial should impress upon district attorneys the necessity of indorsing the names of
prosecuting witnesses known to them on informations before trial. Had the trial court in this
instance forced the defendant to trial without giving him sufficient time to inquire as to the
character and credibility of the witnesses whose names were indorsed on the information after
the trial had begun, and to prepare to meet their testimony, it would probably have been an
abuse of discretion, but in the present state of the record we cannot say that the
indorsement violated or prejudiced any of the defendant's rights.
the record we cannot say that the indorsement violated or prejudiced any of the defendant's
rights. The questions raised on the merits of the case require a construction and application of
the statute upon which the information is based.
The principles of the common law not being found adequate to protect general owners
against the fraudulent conversion of property by persons standing in certain fiduciary
relations to those who were the subject of their peculations, certain statutes have been
enacted, * * * creating new criminal offenses and annexing to them their proper punishments.
The consequence is, therefore, that many acts which formerly were denominated mere
breaches of trust, and subjected the party to a civil action only, have now become cognizable
before our criminal courts, as offenses against the commonwealth. Com. v. Stearns, 2 Metc.
(Mass.) 343.
Section 6653, Rev. Laws, provides as follows:
Any bailee of any money, goods or property, who shall convert the same to his own use,
with intent to steal the same or to defraud the owner or owners thereof and any agent,
manager or clerk of any person, corporation, association or partnership, or any person with
whom any money, property or effects shall have been deposited or entrusted, who shall use or
appropriate such money, property or effects or any part thereof in any manner or for any other
purpose than that for which the same was deposited or entrusted, shall be guilty of
embezzlement, and shall be punished in the manner prescribed by law for the stealing or
larceny of property of the kind and name of the money, goods, property or effects so taken,
converted, stolen, used or appropriated. The term bailee, as used in this section, shall be
construed to include and mean all persons with whom any money, goods, or property has
been deposited, and all persons to whom any goods or property has been loaned or hired, and
all persons to whom any goods or property shall be delivered, for any purpose whatsoever,
and all persons who shall, either as agent, collector, or servant, be empowered, authorized, or
entrusted to carry, collect, or receive any money, goods or property of another; and any use
of said money, goods, or property by any bailee thereof, other than that for which the
same was borrowed, hired, deposited, carried, received, or collected, shall be prima facie
evidence of conversion and of intent to steal the same and defraud the owner or owners
thereof."
or receive any money, goods or property of another; and any use of said money, goods, or
property by any bailee thereof, other than that for which the same was borrowed, hired,
deposited, carried, received, or collected, shall be prima facie evidence of conversion and of
intent to steal the same and defraud the owner or owners thereof.
It is argued on behalf of the defendant that the information in this case fails to set forth any
charge of which a criminal court has jurisdiction, and that the prosecution of the defendant is
an attempt to make a criminal offense out of an ordinary business transaction between a
broker and his customer, and is an effort on the part of the district attorney to use the criminal
courts as a means of enforcing a civil obligation.
3. We concede that the statute necessarily requires a careful discrimination in its
application. It is limited to cases in which there is a relation of trust or confidence. State v.
Trolson, 21 Nev. 419, 32 P. 930. But it is not every breach of trust or confidence that is
brought within the terms of the statute. Consequently it is argued in this case that, in so far as
the case made by the state is cognizable by law, it must be treated rather as a gross default in
a civil obligation than the commission of an act of embezzlement; that there is no proof that
defendant had fraudulently misappropriated the money in question; that no demand had been
made upon the defendant for the money, and nothing but the delivery of the stock would have
satisfied the complainant; that the relationship of the parties was that of debtor and creditor.
Our first inquiry will be to ascertain the true relation between the parties to determine
whether the defendant under the admitted facts is within the statute.
4. Brokers are but agents for those who employ their services, and the terms of the agency
define and govern the nature and scope of the agent's powers. People v. Meadows, 199 N. Y.
1, 92 NE. 128, affirming 136 App. Div. 226, 121 N. Y. S. 17; 19 Cyc. 190. Brokers are not
named in our statute, but the term agent is employed, and, as used in the statute, is
comprehensive enough to include brokers.
and, as used in the statute, is comprehensive enough to include brokers. State v. Trolson,
supra.
In People v. Karste, 132 Mich. 455, 93 NW. 1081, it is said:
This is not a statute to punish embezzlement, but to protect persons who place in charge
of another funds for control or investment, accompanied by specific instructions, and, we
think, is broad enough to cover the relation of principal and broker, unless there should be
something in the relations of the parties or in their dealings which indicate a purpose to create
the relation of debtor and creditor.
5. The learned counsel for the defendant insist that by reason of the order to buy 5,000
shares of White Caps at 12 cents, buyer 60, accompanied by a payment of $300 as margin, the
inference must be drawn that it was the purpose of the parties to create the relation of debtor
and creditor, and, therefore, there could be no embezzlement of the money. We do not so
construe the transaction. The complainant gave the defendant, his broker, an order to
purchase 5,000 shares of White Caps at 12 cents, buyer 60, and gave him $300 to use on the
purchase. The defendant received the money for that specific purpose. He afterwards
represented that he had purchased the stock in San Francisco. Subsequently the complainant
became desirous of closing the buyer contract by purchasing the stock outright. He visited the
office of the defendant, and inquired if immediate delivery of the stock would be made if the
balance of $300 were paid. The defendant replied, Absolutely, just as quickly as it could be
shipped from San Francisco. Thereupon the complainant gave the defendant $300 to purchase
the stock outright without delay. The defendant never delivered the stock, but gave various
and conflicting excuses for his failure to do so. The complainant parted with his money on the
faith of the defendant's misstatements and representations, altered his position in
consequence, and was deceived to his pecuniary injury. The money paid the defendant was to
pay for the 5,000 shares of White Caps stock.
to pay for the 5,000 shares of White Caps stock. The defendant acted as the complainant's
agent, and it was his duty to use the money intrusted to him according to his principal's
directions.
6, 7. In People v. Meadows, supra, it was held that, where the defendant's firm of brokers
had no general account with the principal who transmitted money in payment of stock, the
relation of debtor and creditor did not exist between defendant and the principal as affecting
the defendant's liability for embezzlement. We think People v. Meadows effectually disposes
of the debtor and creditor argument advanced by counsel for the defendant. The case is also
authority for the proposition that, where a deliberate diversion by a broker of money
transmitted to him by his principal is shown, it requires but slight evidence in facts and
circumstances to satisfy the jurors as to the existence of felonious or criminal intent. Where
the prosecution makes such a plain prima facie case as this, it becomes incumbent upon the
defendant to adduce evidence in denial or explanation of the incriminating circumstances.
The act of the defendant is one denounced by the statute, and it was knowingly and
voluntarily committed.
The decision in People v. Meadows, supra, is not in conflict with that in People v.
Thomas, 83 App. Div. 226, 82 N. Y. S. 215, nor with those in other New York cases relied
upon by counsel for the defendant in support of their argument that, where money is
deposited with a broker as margin, the relation of debtor and creditor exists. If it were a
marginal transaction in its inception, the complainant within a few days after giving the order
paid the money in full, with directions to purchase the stock in question outright without
delay. Demand and refusal to deliver the stock are admitted. The defendant refrained, as he
had a right to, from going upon the stand and explaining to the jury his remarkable and
unusual manner of dealing with a customer who reposed confidence in his honesty as a man,
and who had unquestioning faith in his financial standing.
Probably it was because it was inexplainable upon any theory of honesty and rectitude of
purpose. The complainant's direction to purchase and deliver the stock was thwarted by the
actual diversion of the money by the defendant, his agent. The defendant knew the exact
situation in regard to the stock. The complainant did not. Instead of executing the commission
of his principal the defendant diverted the money paid him for the specific purpose to his own
use. Consequently the debtor and creditor argument falls.
It is argued on behalf of the defendant that the evidence is conclusive that, if there was any
appropriation or conversion, it was of stock, and not of money. The fallacy of counsels'
position is that they assume that defendant was not the agent of the complainant. The
defendant represented that he had purchased the stock in San Francisco; but under the buyer
contract it was not deliverable until the defendant had received payment in full. The money
was intrusted to the defendant for the specific purpose of fulfilling the transaction. Instead of
complying with his customer's directions, the defendant commingled the money with his own
individual funds, and never delivered the stock. The elements of the offense as defined by the
statute were established.
8. It is insisted that the court admitted incompetent and irrelevant evidence which
prejudiced the rights of the defendant with the jury. The evidence complained of was the
testimony of other customers of the defendant who had been dealt with in the same manner as
the complainant, and also the testimony of witnesses tending to show that the defendant, at or
immediately preceding the commission of the alleged offense, had borrowed certain shares of
stock from the witnesses, and given them his check as security for the loan, and that
afterwards the checks were not paid. The testimony of other witnesses tended to show that the
defendant was involved, and the pressure of debt was very heavy upon him; that his bank
account at the time of the delivery of the money to him for the purchase of the stock was
several thousand dollars overdrawn; and that at about the time of the commission of the
offense he actually mortgaged his home for a loan of $250.
the stock was several thousand dollars overdrawn; and that at about the time of the
commission of the offense he actually mortgaged his home for a loan of $250. The argument
of the defendant is that the effect of all this line of testimony was to show that the defendant
was guilty of other crimes and of swindling other customers and to prejudice the minds of the
jurors against him. If it be conceded that the effect of this testimony was to show that the
defendant had committed other crimes of a like character, it does not necessarily follow from
such fact that the evidence was not admissible against him. 16 Corpus Juris, sec. 1159, p.
596.
In State v. McFarlin, 41 Nev. 486, 172 P. 371, the court said:
It is the general rule that evidence of the perpetration of distinct crimes from those for
which a defendant is being tried will not be considered. There are, however, exceptions to
this general rule. In the well-known case of People v. Molineux, 168 N. Y. 264, 61 NE. 286,
62 L. R. A. 193, this question was considered at length, and it was held that, generally
speaking, evidence of other crimes might be considered only when it tends to establish either
(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan,
embracing the commission of two or more crimes so related to each other that proof of one
tends to establish the others; or (5) the identity of the person charged with the commission of
the crime for which the defendant is being tried. Such is, we think, the correct rule.
In the present case the jury were fully instructed as to the purpose for which the evidence
complained of could be considered, and we find no error in its admission.
Finding no reversible error in the record, the judgment of conviction is sustained, and the
order overruling the defendant's motion for a new trial is affirmed.
____________
50 Nev. 42, 42 (1926) Joudas v. Squire
JOUDAS v. SQUIRE
No. 2750
October 21, 1926. 249 P. 1068.
ON MOTION TO STRIKE AND DISMISS
1. Appeal and ErrorTranscript.
Where certificate of clerk of trial court, filed with notice of motion to strike, showed that transcript of
proceeding was never filed in his office, transcript never became part of record of trial court.
2. Appeal and ErrorTranscript.
Stats. 1923, c. 97, sec. 1, providing for correction of defects in appellate proceedings, does not
authorize supreme court to order lower court to permit transcript to be filed as a bill of exceptions after
time for filing has expired and record on appeal has been filed in supreme court.
3. Appeal and ErrorJudgment Roll.
Papers, including notice of calling up demurrer and request for statement of points and authorities,
stipulation withdrawing demurrer and extending time to answer, affidavit for attachment, undertaking in
attachment, writ of attachment, notice of motion to discharge attachment, order vacating attachment,
order of inspection, excerpts from court's minutes, cost bill, and stipulation for cash bond in stay of
execution, not designated in Rev. Laws, sec. 5273, and not incorporated in bill of exceptions, are not part
of judgment roll, and should be stricken from transcript of record on appeal.
4. Appeal and ErrorDemurrer.
Demurrer to complaint withdrawn by stipulation is not a part of record on appeal.
5. Appeal and ErrorSupreme Court Rule 2.
Thirty days prescribed by supreme court rule 2 for filing of transcript on appeal does not begin to run
until statement or bill of exceptions is settled.
Statutes having substituted bill of exceptions for statement on appeal, the word statement in
supreme court rule 2, requiring filing of transcript within 30 days after settling of statement, means a bill
of exceptions.
Party moving to dismiss appeal has burden of showing that transcript of record on appeal was not
filed within 30 days after settlement of bill of exceptions as required by supreme court rule 2, and, in
absence of showing, appeal will not be dismissed under rule 3.
Appeal and Error4 C. J. sec. 1715, p. 110, n. 15 (new); sec. 1808, P. 209, n. 20; p. 210, n. 29 (new); sec.
2196, p. 465, n. 42; sec. 2267, p. 505, n. 84; p. 506, n. 85; sec. 2425, p. 602, n. 32.
Appeal from Ninth Judicial District Court, White Pine County; W. R. Reynolds, Judge.
Action by George Joudas and others against William F. Squire. Judgement for plaintiffs,
and defendant appeals. On motion to strike parts of transcript and to dismiss appeal. Motion
to strike granted; motion to dismiss denied.
G. E. Baker and J. M. Lockhart, for Appellant:
Chandler & Quayle, for Respondents:
OPINION
This case came before us on motion of the respondent to strike several parts of the
transcript of record on appeal and to dismiss the appeal. The motion to strike is first directed
to pages 1 to 35, inclusive, of the record entitled Transcript of Proceedings, and containing
what purports to be the evidence, testimony, and proceedings taken and had at the trial of the
case, including the certificate of the official court reporter who took down the shorthand and
transcribed the same. The following grounds are assigned by respondent in support of the
motion, to wit: First. That the said transcript of proceedings was never filed in the office of
the clerk of the court below. Second. That the certificate thereto by the official reporter is
insufficient. Third. That a bill of exceptions containing matter other than that embodied in
said transcript of proceedings, duly stipulated by counsel and filed in the lower court, appears
in the record and constitutes the only bill of exceptions in this case.
1, 2. Appellant contends that the latter is an additional bill of exceptions, and that, if the
certificate of the clerk to the transcript is insufficient, it may be amended under the rule of
liberality prescribed in the statute of 1923 concerning bills of exceptions. But it appears from
the certificate of the clerk of the lower court, which was filed with the notice of motion to
strike, and noticed therein, that the transcript of proceedings was never filed in his office.
court, which was filed with the notice of motion to strike, and noticed therein, that the
transcript of proceedings was never filed in his office. Therefore it never became a part of the
record in the court below. The statute of 1923, c. 97, permits a party to file a transcript of the
proceedings properly certified in lieu of a bill of exceptions. In this respect section 1 of the
act of 1923 reads:
A transcript of the proceedings certified by the court reporter to be a full, true, and correct
transcript thereof may be filed in lieu of such bill of exceptions and when so filed shall be and
constitute the bill of exceptions without further stipulation or settlement by the court;
provided, however, that on motion duly noticed, the court may at any time correct any error in
such transcript by appropriate amendment thereto.
Unless so filed in conformity with this provision the transcript does not become a part of
the record in the court below, and no opportunity is given the adverse party to have it
corrected as contemplated by the statute so as to verify the proceedings.
Broad and liberal as are the provisions of the statute of 1923 for the correction of defects
and informalities in the appellate proceedings, they are not so comprehensive as to authorize
this court to order the lower court to permit a transcript of the proceedings to be filed as a bill
of exceptions after the time for such filing has expired and the record on appeal has been filed
in this court. Such procedure would lead to confusion and subvert the purpose of the statute.
The reporter's transcript of the proceedings is therefore ordered stricken from the record on
appeal.
3. The motion to strike is also directed to a copy of the demurrer and a number of other
papers appearing in the record on appeal on the ground that they are not incorporated in a bill
of exceptions and are not properly a part of the judgment roll. The motion must be granted as
to all the papers mentioned in the notice of motion to strike. Section 5273 enumerates the
papers which, when attached together and filed by the clerk, constitute the judgment roll, and
the papers mentioned in said notice exclusive of the demurrer are not designated in the
section, nor are they incorporated in a bill of exceptions.
exclusive of the demurrer are not designated in the section, nor are they incorporated in a bill
of exceptions.
4. The demurrer to the complaint was withdrawn by stipulation, and consequently is not
properly a part of the record on appeal in this case. The following papers are therefore
ordered stricken, to wit: Demurrer, notice of calling up demurrer, and request for statement of
points and authorities, stipulation withdrawing demurrer to complaint and extending time to
answer, affidavit for attachment, undertaking in attachment, writ of attachment, notice of
motion to discharge attachment, order vacating attachment, order of inspection, excerpts from
court minutes as set forth in transcript of appeal, cost bill, and stipulation for cash bond in
stay of execution in lieu of execution bond.
5, 6. The motion to dismiss the appeal is on the ground of noncompliance with rule 2 of
the rules of the supreme court, which requires the transcript of the record on appeal to be filed
within 30 days after the appeal has been perfected, and the bill of exceptions settled, if there
be one. By rule 3, an appeal may be dismissed for noncompliance with rule 2. The notice of
appeal was filed on June 19, 1926, and the transcript of the record filed more than 30 days
thereafter, to wit, on July 22, 1926. Due to what appears to be an error in the record as to the
date of service of the notice of appeal, we are unable to tell with certainty when the appeal
was perfected. However, the time prescribed by the rule does not begin to run until the bill of
exceptions is settled, if there be one.
7. In the record before us is a bill of exceptions settled by stipulation of the parties, but we
are unable to determine therefrom when it was settled. We think the burden was on the
movant to show that the transcript of the record on appeal was not filed within 30 days after
the settlement of the bill of exceptions.
In the absence of such a showing, and the fact not otherwise appearing, the motion to
dismiss the appeal should be denied.
It is so ordered.
____________
50 Nev. 46, 46 (1926) Sirbeck v. Sunbeam Divide Mining Co.
SIRBECK v. SUNBEAM DIVIDE MNG. CO.
No. 2739
October 22, 1926. 249 P. 865.
1. PleadingComplaint Not Demurrable.
It was not error to overrule defendant's general demurrer to complaint on premise that there was no
jurisdiction alleged of defendant, where complaint stated cause of action and alleged that defendant was
domestic corporation and that contract sued upon was performed in county where action was brought,
since court had jurisdiction of subject matter and it acquired jurisdiction of defendant when service of
summons was made.
2. AppearanceGeneral Appearance Gives Jurisdiction.
General appearance of defendant by filing general demurrer to complaint will give court jurisdiction
over defendant, where such court had jurisdiction of subject matter but no service of summons was made.
3. CorporationsSecretary Who Is Not Director May Recover on Quantum Meruit for
Services Rendered.
Secretary and treasurer, who was not director of corporation and had nothing to do with directing
policy or business management but rendered such services as were usual and incident to duties of
secretary and treasurer, could recover on quantum meruit.
4. Appeal and ErrorEvidenceAdmission of Corporate Certificate Not Error.
In action against corporation, admission in evidence of copy of certificate filed with secretary of state
certifying that certain person was president of company was not reversible error, if error at all, where
there was ample evidence to show who president was.
5. CorporationsEvidence Held to Support Finding.
In action against corporation by its secretary for services rendered, evidence held sufficient to support
finding that he was employed by corporation.
6. ContinuanceCourt Has Discretion to Refuse.
It was not abuse of discretion to deny defendant's motion for continuance on ground that its principal
witness was sick in sister state, where it appeared that case had been reset for trial several times, and that
defendant did not take steps to procure his deposition when case was first set for trial.
Appeal and Error4 C. J. sec. 2780, p. 809, n. 32, 33; sec. 2955, p. 975, n. 88.
Appearances4 C. J. sec. 29, p. 1337, n. 64, sec. 43, p. 1353, n. 48.
Continuances13 C. J. sec. 4, p. 123, n. 14; sec. 59, p. 149, n. 56; sec. 86, p. 163, n. 27; sec. 88, p. 165, n.
42; sec. 157, p. 199, n. 27.
Corporations14a C. J. sec. 1906, p. 136, n. 64; p. 139, n. 69; sec. 1918 p. 148, n. 58.
Courts15 C. J. sec. 96, p. 799, n. 68.
Pleading31 Cyc. p. 301, n. 49, 53; p. 302, n. 57.
Appeal from Seventh Judicial District Court, Esmeralda County; J. Emmett Walsh, Judge.
Action by William E. Sirbeck against Sunbeam Divide Mining Company. Judgment for
plaintiff, and defendant appeals from the judgment and from the order denying a motion for a
new trial. Affirmed. Rehearing denied.
Ryland G. Taylor, for Appellant:
Failure to allege defendant was resident of Esmeralda County is fatal. Residence is
essential to jurisdiction and determines place of trial. Rev. Laws, 5014.
Officer of company cannot recover on quantum meruit. Brown v. Valley View Mng. Co.,
60 P. 424. Regular officers presumably serve without compensation. 10 Cyc. 952.
Affidavit for continuance meets all requirements of statute, and there is no showing that
plaintiff could have been damaged by continuance. Choate v. Brown, 1 Nev. 73; Betts Spring
v. Jardine, 139 P. 657.
Contracts are usually made by directors, not president. Directors did not employ Sirbeck.
Cook, Corporations, sec. 704.
Minute book of directors' meeting is proper evidence of contracts or authority of corporate
agent to contract for it. Cook, Corporations, sec. 714, 716.
Copy of list of officers filed in office of secretary of state was not best, nor any, evidence.
J. A. Houlahan and Wm. J. Forman, for Respondent:
Appellant does not point out absence of any allegation in complaint essential to statement
of cause of action, but objects to omission of statement of place of residence. This goes only
to jurisdiction of party, could not be raised by general demurrer, and was waived by general
appearance. Demurrer is frivolous.
Application for continuance was for purpose of delay only. Affidavit is entirely defective;
it does not show diligence to procure witness, nor any facts to which he would testify. District
Court Rule 12. Several continuances had been granted. Court did not abuse its discretion.
discretion. Durkman v. Von Blumenthal, 232 P. 152; Wood v. French, 176 P. 734.
Party to suit is bound by stricter rule than disinterested witness. Obstacle to attendance
cannot be created by his own act. Neven v. Neven, 38 Nev. 541; Schlesinger v. Nunan, 26 Ill.
App. 525.
Parol testimony of Sirbeck established that Hauer was president, and was admitted without
objection. Where secondary evidence is admitted without objection, adverse party may not
complain. Jones, Evidence (3d ed.), sec. 202; Elliott, Evidence, vol. 1, 215. Where primary
evidence is beyond jurisdiction of court, secondary may be admitted. Jones, sec. 217.
Where corporation exercises its power through president or general manager, it is liable on
their contracts. Cook, Corporations, par. 716; Edwards v. Plains L. & W. Co., 143 P. 962;
Bradley v. N. C. O., 42 Nev. 411.
Verdicts and findings, when supported by substantial evidence, will not be disturbed.
McCone v. Eccles, 42 Nev. 451; Gault v. Grose, 39 Nev. 274.
New trial was properly denied. There was no error in trial. No memorandum of errors relating
to third ground was filed. Rev. Laws, 5322.
OPINION
By the Court, Coleman, C.J.:
This action was brought to recover judgment in the sum of $925 for services alleged to
have been rendered by the plaintiff as secretary and treasurer of defendant company.
Judgment was rendered in favor of the plaintiff in the sum demanded. Defendant has
appealed from the judgment and from the order denying a motion for a new trial.
1. The first contention is that the court erred in overruling defendant's general demurrer to
the complaint. The basis of this contention is that there is no jurisdiction alleged of the
defendant.
2. The complaint states a cause of action. It alleges that the defendant is a domestic
corporation and that the contract sued upon was made to be performed and was performed in
Esmeralda County, in which the action was brought. The court had jurisdiction of the subject
matter, and it acquired jurisdiction of the defendant when service of summons was made. Had
there been no such service, the general appearance of the defendant by filing the general
demurrer gave the court jurisdiction over the defendant. The defendant could have moved for
a change of venue as provided in section 5015, Rev. Laws, if it deemed itself entitled thereto.
3. It is next contended that an officer of a corporation cannot recover on quantum meruit,
and hence the court erred in rendering judgment for the plaintiff. It is held, as a general
proposition of law, that an officer of a company, who is a director thereof, cannot recover on
a quantum meruit for services rendered. In the instant case, there is no contention that the
plaintiff was a director of the company or had anything to do with directing the policy or
business management. It appears that he rendered such services as are usual and incident to
the duties of a secretary and treasurer, or as specifically required of him. The rule invoked by
appellant does not apply to the situation presented. 14 C. J. 136.
4. It is also contended that the court erred in admitting in evidence a copy of the certificate
filed with the secretary of state certifying that Kenneth Hauer is the president of the company.
We do not deem it necessary to determine this question, for, if error was committed, there is
ample evidence to show who the president was. There are, in the record, two affidavits in
support of motions for a continuance on the part of the defendant stating that Mr. Hauer is an
officer of the company. No judgment will be reversed for an error that is not prejudicial.
5. It is insisted that the evidence is not sufficient to sustain the judgment. This contention
is based upon the proposition that the employment of the plaintiff to act as secretary and
treasurer was negotiated by the president of the company, and not by the board of
directors.
act as secretary and treasurer was negotiated by the president of the company, and not by the
board of directors.
It appears from the testimony that prior to the 12th day of May, 1923, one Arthur Wood
was a stockholder in the company and was also the secretary and treasurer thereof at a salary
of $200 per month; that the president of the company was anxious to procure the
displacement of Mr. Wood as such secretary and treasurer and to procure the services of the
plaintiff at a greatly reduced salary of $50 per month; that Mr. Hauer, the president of the
company, suggested to the plaintiff that, if he would purchase the stock owned by Wood,
plaintiff could succeed Wood as secretary and treasurer of the company at a salary of $50 per
month; that plaintiff did purchase such stock; and that he was thereafter elected the secretary
and treasurer of the company.
The following undisputed testimony is in the record:
Q. You state that you were elected secretary and treasurer of this company. At what date
was that? A. Between May 12th and 15th, 1923.
Q. Were you present at the election yourself? A. I was.
Q. Who was elected president at that time? A. Kenneth Hauer.
Q. Had he been president previous to that? A. He was.
Q. Did you have any correspondence leading up to your election and taking office? A. I
did.
Q. Have you any written evidence with you in respect to the matters discussed, by
correspondence, with you? A. I have.
Q. Where are they? A. Here.
Q. Can you identify the signature of the letter that I am handing you? A. I can.
Q. Whose signature? A. Kenneth Hauer, president of the Sunbeam Divide Mining
Company.
The testimony also shows that the plaintiff thereafter took from Wood possession of the
books and papers of the company and acted as such officers for about 18 months, and then
delivered the books and papers to Walter Rowson, the resident agent of the company,
who sent them to Mr.
months, and then delivered the books and papers to Walter Rowson, the resident agent of the
company, who sent them to Mr. Hauer, the president, in Cincinnati, Ohio. The defendant
offered no evidence.
The trial court found that the plaintiff was employed as secretary and treasurer of
defendant company, and the reasonable value of the services rendered was $925. The
evidence is ample to support the findings.
6. It is also contended that the court erred in denying defendant's motion for a
continuance. The case was originally set for trial on July 27, 1925. It was thereafter reset for
September 4, 1925. On September 4, the court reset the case for trial for October 7, and on
October 7 the court reset it for October 16, and on October 16 the court reset it for October
21. On October 21 the defendant again made a motion for a continuance on the ground that its
principal witness was sick in Florida. From the time the case was set for trial for July 27, the
defendant had notice that it was incumbent upon it to take the deposition of the nonresident
witness. It was its duty to at once take steps to procure his deposition, but it delayed in doing
so until some time in September. It did not show the diligence it should have shown. Yori v.
Cohn, on rehearing, 26 Nev.227, 67 P. 212. The granting of a continuance is a matter largely
in the discretion of the trial court. Neven v. Neven, 38 Nev. 541, 148 P. 354, 154 P. 78 Ann.
Cas. 1918b, 1083. We cannot say that the court abused its discretion.
No prejudicial error appearing, it is ordered that the judgment and order appealed from be
affirmed.
On Petition for Rehearing
December 4, 1926.
Per Curiam:
Rehearing denied.
____________
50 Nev. 52, 52 (1926) Sirbeck v. Divide Annex Mining Co.
SIRBECK v. REORGANIZED DIVIDE ANNEX
MINING COMPANY
No. 2740
November 3, 1926. 250 P. 245.
1. CorporationsControl.
No combination of stockholders less than all will be permitted to control company in their interest
alone.
2. CorporationsCompany Not Liable for Services of One Who Acts for President's Sole
Benefit.
In action by acting secretary of company for extra services rendered on trip made at instance of
president thereof, where plaintiff was employed and paid by president, and it did not appear there was
meeting of board of directors, or that any of them knew plaintiff was acting as secretary, held, since
president acted for his personal interest, there could be no presumption of ratification of employment by
company.
Corporations14 C. J. sec. 1292, p. 851, n. 81 (new); 14a C. J. sec. 2280, p. 428, n. 64; p. 429, n. 65.
Action by William E. Sirbeck against the Reorganized Divide Annex Mining Company.
From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, the
defendant appeals. Reversed. Rehearing denied.
J. A. Houlahan and Wm. J. Forman, for Respondent:
(Briefs similar to those in Sirbeck v. Sunbeam Divide Mng. Co., next preceding case.)
OPINION
By The Court, Ducker, J.:
This action was instituted to recover a judgment for services rendered as acting secretary
and treasurer of the defendant company, for extra services rendered on a trip to New York,
and for a part of expenses incurred on such trip. From a judgment in favor of plaintiff, and
from an order denying a motion for a new trial, the defendant has appealed.
Several errors are assigned and urged upon our consideration; but, taking the view we do,
it is necessary to consider only one of them. It is the contention of the appellant that the
plaintiff was never employed by the defendant company, and that it never ratified such
employment on its behalf. It is asserted on behalf of the the company that Kenneth Hauer, of
51 Central Avenue, Cincinnati, the president of the company, employed the plaintiff as his
personal representative.
The only witness to testify was the plaintiff. The testimony in the case shows that on the
9th day of October, 1922, Hauer wrote to the plaintiff:
I will pay you a salary of $50 per month as secretary of the Annex to look after their
property and my best interest.
Thereafter the plaintiff acquired possession of the books of the company, and in fact acted
as secretary of the company for about two years. It does not appear that there was ever a
meeting of the board of directors of the company after the plaintiff proceeded to act as such
secretary, and there is not a scintilla of evidence that any director of the company, other than
Hauer, ever knew of his acting as such secretary. The testimony shows that, when the plaintiff
entered upon the discharge of the duties of secretary, there were $6 in the treasury of the
company, and that no other funds ever reached that depository. It also appears that Hauer paid
by his personal check plaintiff's salary as secretary for the period of about 21 monthsthe
only payments ever made on account thereof. It also appears from the plaintiff's testimony
that, at the time he began to act as secretary of the company, stock in the defendant company
had been issued as follows: To Kenneth Hauer (the president), 298,000 shares; to various
individuals, 154,000 shares. The plaintiff also testified as follows:
Q. During the time that you were acting as secretary, didn't he (Hauer) acquire further
stock? A. He did.
Q. How much more? A. 500,000 at one cent; 300,000 at 2 1/2 cents; and 243,541 at 3
cents.
Q. Making how much? A. All there was in the treasury. * * *
Q. Did you make any transfers of the stock, as secretary, to Mr. Hauer? A. I did.
Q. How did you come to do that? A. On his instructions.
Q. Were those instructions oral or written? A. Written and telegraph. * * *
On March 21, 1924, the plaintiff wrote a letter to Hauer, in which he said, among other
things:
Also be sure and get a resolution from the board of directors to file with the minutes for
the sale of the treasury stock and have it dated previous to the date of the certificates. This
will clear me, when I have to turn the books over to government inspectors, in case they
should come in at any time.
There is no evidence that a directors' meeting was ever held, and none that they ever knew
of any of the transactions mentioned herein, as we have stated.
The plaintiff also testified that he went on a trip east at the request of Hauer, made by
telegram, early in May, 1924. Hauer's telegram is dated May 3, 1924, and reads:
Your letter April twenty-eighth received. If you are coming east suggest you come at once
or at your earliest convenience. No doubt you could assist to close a deal on Annex and
Sunbeam. Come direct to Cincinnati and advise me in advance of your coming when you will
arrive.
This is the only telegram in the record alluding to plaintiff's going east.
This is the evidence upon which the plaintiff bases his right to recovery. In our opinion, it
utterly fails to show any liability on the part of the defendant company. The theory of the
plaintiff is that Hauer, the president of the company, is the company, and hence the company
cannot escape liability.
While we are inclined to the opinion that a mere shell of a corporation, used as a cloak to
promote fraud, when an individual is in fact the owner of all of the stock, cannot protect
itself from the acts of such owner by claiming that it never authorized a contract sued
upon, nor ratified it, we do not deem it necessary to decide the point in the instant case,
since such is not the fact herein.
cannot protect itself from the acts of such owner by claiming that it never authorized a
contract sued upon, nor ratified it, we do not deem it necessary to decide the point in the
instant case, since such is not the fact herein. Hauer, in offering employment to the plaintiff,
said:
I will pay you a salary of $50 per month as secretary of the Annex to look after their
property and my best interest.
By this letter Hauer bound himself, and not the company. He did not pretend to speak for
the company, but for himself. It is a personal obligation. But, if we waive aside this phase of
the case, the judgment cannot be justified upon the theory above stated, for, as a matter of
fact, Hauer was not the sole owner of stock; he was not the company. It appears from the
testimony of the plaintiff that, when he began to act as secretary of the company, Hauer
owned 298,000 shares of stock, and that other individuals owned 154,000 shares. This is far
from showing that Hauer was at that time the company. So far as appears, there may have
been, at the time of the employment, 5,000 individual stockholders. It is true that the plaintiff,
after he became the acting secretary, on the request of Hauer, transferred to Hauer 1,043,541
shares of the capital stock of the company for a mere pittance. The plaintiff realized that he
had no right to do this, because he later wrote, as we have shown, asking that Hauer have the
board of directors ratify his action in issuing the stock to Hauer so as to clear him when the
government inspectors came around.
1. It is a well-recognized rule that no combination of stockholders of a corporation less
than all will be permitted to manage or control a company in their interest alone. This is
equally true of an individual stockholder. Glengary Con. M. Co. v. Boehmer, 28 Colo. 1, 62
P. 839; Dunbar v. Amer. Tel. & T. Co., 224 Ill. 9, 79 NE. 423, 115 Am. St. Rep. 132, 8 Ann.
Cas. 57; Jones v. Missouri-Edison Co., 144 F. 765, 75 C. C. A. 631; Monmouth Inv. Co. v.
Means, 151 F. 159, 80 C. C. A. 527; Wheeler v. Abilene, etc.,
Abilene, etc., 159 F. 391, 89 C. C. A. 477, 16 L. R. A. (N.S.) 892, 14 Ann. Cas. 917.
2. Since Hauer acted for his personal interest alone, we will not assume that he brought
the facts of the case to the attention of the board of directors, and, there being no proof that he
did, there can be no presumption of ratification of the employment of the plaintiff by the
company.
For the reasons given, it is ordered that the judgment be reserved.
February 1, 1927.
Per Curiam:
Rehearing denied.
____________
50 Nev. 56, 56 (1926) Smith v. Gray
SMITH v. GRAY
No. 2743
November 5, 1926. 250 P. 369.
1. JudgmentRes Judicata.
To make a matter res judicata, there must be identity (1) in the thing sued for; (2) in the cause of
action; (3) in persons and parties; (4) in the quality in the persons for or against whom claim is made.
2. JudgmentRes Judicata.
Judgment in minority stockholders' action for relief against alleged fraud of majority in extending
option to purchase corporate property held not res judicata in action by same plaintiffs against the
corporation and purchaser of its assets, not a party to the former action, wherein different relief was
sought.
3. CorporationsEvidence of Fraud Against Minority.
In determining whether there was fraud, oppression, and violation of trust as to minority stockholders
in extending option to purchase corporate assets, facts must be considered in their entirety with reference
to all surroundings.
4. CorporationsDirectors as Trustees.
Directors and managing officers of corporation are quasi trustees towards the stockholders, but not
towards the corporation.
5. CorporationsEquity Relieves Oppression by Majority.
Where majority stockholders oppressively pursue course in name of corporation in violation of rights
of minority, stockholder may sue in equity on behalf of himself and other stockholders.
50 Nev. 56, 57 (1926) Smith v. Gray
6. CorporationsFraud and Conspiracy.
Fraud and conspiracy between majority stockholders and another corporation, purchaser of all of
corporation's assets, to transfer control by exchange of stock, and to force minority stockholders into like
exchange or loss of value of their stock, held not established.
7. CorporationsExchange of Stock.
Presumption is that majority stockholders in exchanging their stock for that in another company acted
on their individual judgment for their own best interests.
8. EvidenceExchange of Stock.
Minority stockholders are presumed to have known that, if majority stockholders exchanged their
stock for that in another company, it would control majority of the stock.
9. EvidenceMinority Presumed to Have Knowledge After Notice.
Minority stockholders of corporation selling all its assets presumably had full knowledge of policy of
purchasing corporation to exchange its stock for issued stock of selling corporation as proposed in
resolutions and circular letter.
10. CorporationsConstructive Fraud Not Shown.
Majority stockholders' exchange of stock for stock of another corporation purchasing all of
corporation's assets, the extension of an alleged option, and alleged conspiracy, held not to show
constructive fraud, entitling minority stockholders to equitable relief.
11.CorporationsMajority Bound to Good Faith.
Majority of stockholders are bound not to act fraudulently or in bad faith, but, where their acts are not
fraudulent or ultra vires, minority cannot complain.
12. CorporationsControl May Be Acquired.
No rule of law prevents one or more persons from purchasing majority of shares of stock of
corporation to acquire control of it.
13. CorporationsIntercorporate Fraud Prohibited.
When majority of shares of corporation are held or controlled by another corporation, its affairs must
be managed without fraud in the interest of all stockholders.
14. CorporationsArizona Laws Permit Exchange.
Arizona law does not prevent stockholders from exchanging their stock for stock in another
corporation either for investment or control, and such exchange, giving other corporation control, held
not fraudulent in law.
Corporations14 C. J. sec. 1292, p. 852, n. 87, 91; sec. 1444, p. 927, n. 23; p. 928, n. 29; sec. 1471, p. 947,
n. 26; 14a C. J. sec. 1866, p. 98, n. 62; sec,. 1879, p. 112, n. 23; sec. 2138, p. 290, n. 92.
Evidence22 C. J. sec. 46, p. 104, n. 80.
Judgments34 C. J. sec. 1162, p. 750, n. 24; sec. 1457, p. 1027, n. 28.
50 Nev. 56, 58 (1926) Smith v. Gray
Appeal from Fourth Judicial District Court, Elko County; J. M. McNamara, Judge.
Suit by Henry Smith and others and all other stockholders of the Nevada Copper Mining,
Milling & Power Company, a corporation, who are similarly situated, against E. F. Gray and
others. From judgment for defendants and order denying motion for new trial, plaintiffs
appeal. Affirmed. Rehearing denied.
Wm. H. Pratt and E. J. L. Taber, for Appellants:
Majority stockholders and directors hold actual, if not technical, trust relation to minority
and must not defraud or oppress. If they do, equity will relieve. Jones v. Missouri-Edison Co.,
144 Fed. 765; 14 C. J. 844.
Fact that majority of stock is held by another corporation does not change rule. Hyams v.
Calumet & Hecla Mng. Co.,221 Fed. 529. If minority are deprived of their rights, equity will
remedy. Ames v. Goldfield Merger Mines Co., 227 Fed. 292. If one corporation so dominates
another as to make it mere adjunct, courts will look beyond legal fiction of distinct corporate
existence as justice may require. Platte v. Bradner, 131 Wash. 573; 1 Fletcher, Corporations,
63.
Stockholder cannot be deprived of interest without his consent. Majority cannot compel
him to trade his shares for shares in another corporation or accept arbitrary cash price for
them. Forrester v. Mng. Co., 55 P. 229.
To set aside option agreement and replace property in hands of Nevada company would
not be adequate. Appellants are entitled to individual relief. Williams v. Mng. Co., 47 Wash.
360.
Washington case is res judicata because issues were identical, parties plaintiff were same,
and parties defendant were in reality same. Though Gray and Gray Company were not parties
in Washington because of nonresidence there, Gray had entire control of that litigation, had
same attorney as here, was then in control of both companies, and while not personally
present, case was heard and largely determined on his testimony. 242 P. 367; U. S. Env. Co.
v. Paper Co., 221 Fed. 79.
50 Nev. 56, 59 (1926) Smith v. Gray
Issue determined by competent court cannot be again tried where proper plea is interposed
between same parties or their privies. Vickers v. Vickers, 45 Nev. 274; 34 C. J. 757, 1006.
G. A. McElroy, F. A. Bottorff, and McElroy & Haskell, for Respondents:
Washington decree was interlocutory, not final, and therefore not res judicata. Whitman v.
Baker, 3 Nev. 386. Final Washington decree was not entered until after trial in Nevada.
Fraud has not been shown. Equity will not interfere with internal management of
corporations unless actions of majority stockholders or directorate are illegal, fraudulent or
oppressive. Wheeler v. P. I. & S. Co., 32 NE. 421; 14 C. J. 877; Ellerman v. C. R. & U. S.
Co., 23 Atl. 287; 7 R. C. L. 609.
Contracts between corporations whose directors are same persons are legal if in good faith.
San Diego v. P. B. Co., 112 Cal. 53.
It is insufficient to allege only that unless injunctive relief be granted, irreparable injury
will result. Thorne v. Sweeney, 12 Nev. 251.
Shareholder cannot stand idly by and acquiesce in proceedings, then take his choice and abide
by them if favorable and repudiate them if unfavorable. 4 Pom. Eq. sec. 1725; Rabe v.
Dunlap, 25 Atl. 959.
Courts must consider best interest of corporation, not personal interest of stockholder. 3
Pom. Eq. sec. 1095.
When action is representative one, and corporation alone has direct interest in subject
matter and relief, stockholder cannot in one suit recover for wrong to himself and to
corporation. Such joinder is improper. 3 Pom. Eq., sec. 1095; Turner v. Markham, 102 P.
272.
OPINION
This is an equitable action brought by three stockholders of the Nevada Copper Mining,
Milling & Power Company, a corporation, suing for themselves and other minority
stockholders similarly situated, against respondents, praying injunctive and other
equitable relief, the nature and character of which will sufficiently appear in the
statement of facts.
50 Nev. 56, 60 (1926) Smith v. Gray
Company, a corporation, suing for themselves and other minority stockholders similarly
situated, against respondents, praying injunctive and other equitable relief, the nature and
character of which will sufficiently appear in the statement of facts. After a full hearing upon
the pleadings and evidence, the trial court found in favor of respondents, and, upon its
findings of fact and conclusions of law, ordered, adjudged, and decreed that plaintiffs take
nothing by reason of their complaint, and that defendants have judgment against plaintiffs
dissolving a temporary restraining order issued at the commencement of the action, and for
their costs. The plaintiffs appeal from said judgment, and also from an order denying their
motion for new trial.
The parties will be designated here as they were in the court below, and we shall refer to
the corporation defendants as the Nevada Company and the Gray Company. The pleadings
are too lengthy to attempt a detailed statement of their various allegations, and we find it
difficult to make a condensed statement of the facts; but the case is one that cannot be
thoroughly understood without a full knowledge of all the conditions and causes which led to
the acts of which complaint is made.
It is a long story. Prior to, or during, the year 1905, Henry Smith, plaintiff, grubstaked one
Jeffrey McDermott to search and prospect for mineral on the public domain. McDermott
located a number of copper bearing lode prospects in the Salmon river mining district in Elko
County, Nevada, far in the interior, and 40 miles from any railroad. The locations were
considered to be of such promise that in 1905 the plaintiff, Henry Smith, promoted and
organized the Nevada Company under the laws of the State of Arizona, with an authorized
capital stock of 1,500,000 shares, of the par value of $1 each, for the purpose of taking over
and financing the development thereof through sale of treasury stock of the corporation. Upon
its organization all said locations were conveyed to the corporation for a stock consideration.
Smith and McDermott continued in control of the majority of the stock of the corporation
up to the year 1907, when McDermott sold and transferred his stock to one E. F.
Messinger, an incorporator, and one of the directors of the corporation.
50 Nev. 56, 61 (1926) Smith v. Gray
majority of the stock of the corporation up to the year 1907, when McDermott sold and
transferred his stock to one E. F. Messinger, an incorporator, and one of the directors of the
corporation. Smith and Messinger continued in control of the majority of the issued stock up
to the year 1918. A large amount of stock was sold to the public, and its proceeds were
devoted to the exploration and development of the property. A large amount of low-grade ore
was exposed by the development work carried on under the management of Henry Smith,
which, in the judgment of the interested parties, justified the further development of the
mining ground. The company, however, was unsuccessful in selling enough of its treasury
stock to raise sufficient funds to prove the value of the ore bodies at depth. It was a
stupendous undertaking in an unproven mining district, attended with the usual risk and
hazard of mining investments, and it required extraordinary effort and a large amount of
capital to prove the value of the property and to secure transportation facilities. While all the
officers and stockholders apparently believed in the merit of the property, it was deemed for
the best interest of the company to discontinue the sale of stock for development purposes,
and instead to make a sale, or interest in the property some person or persons, company or
corporation with sufficient capital to develop it, secure transportation, and, if possible, put the
property upon a paying basis without further expense to the stockholders. The property
consisted of forty-nine patented and two unpatented mining locations, mine machinery, tools,
and mine equipment.
In August, 1918, E. F. Messinger arranged a meeting between Henry Smith and one E. F.
Gray. The said Gray was a successful promoter of several dividend paying copper mines, one
of which was the Nevada Consolidated, at Ely, Nevada. Gray made an examination and
considered the property to be of such merit as to warrant further development, and as a result
he entered into negotiations with the officers of the company. A special meeting of the board
of directors of the company was held on the 11th day of September, 191S, at Tacoma,
Wash.
50 Nev. 56, 62 (1926) Smith v. Gray
the company was held on the 11th day of September, 1918, at Tacoma, Wash. The members
of the board at that time consisted of E. F. Messinger, Henry Smith, G. H. Reed, A. E. Irving,
and E. S. Price. At this meeting the following resolution was passed and adopted:
* * * Upon motion duly seconded and carried the president and secretary were authorized
and instructed to enter into a written lease and bond binding the company to sell its entire
holdings in the Salmon river mining district, Elko County, Nevada, to Mr. E. F. Gray, of
Seattle, Wash., for $250,000, to be paid as follows: $25,000 of the purchase price to be
expended in development work and improvements on the ground within one year from date
of signing of the lease and bond; $25,000 cash to be paid on or before the expiration of the
second year from the signing of the bond; and $200,000 or the full purchase price, to be paid
in cash on or before the expiration of three years from the signing of the lease and bond; said
E. F. Gray to have the right to make full payment at any time during the life of the lease and
bond; 25 per cent royalty to be paid to the Nevada Copper Mining, Milling & Power
Company on all ores shipped during the life of the bond, same to apply on the purchase price.
Said lease and bond to contain a clause which provides that said E. F. Gray agrees that on or
before one year from date of signing the lease and bond he agrees to give an option on 2,500
shares of stock in a holding company, which he proposes to organize on the following terms:
At a price based on pro rata ratio on bonded price of the property herein bonded to unit value
of stock in the holding company at $100 per share. Said stock, or any part thereof, to be
applied in settlement in lieu of cash to shareholders of the Nevada Copper Mining, Milling &
Power Company who may desire same. * * *
Pursuant to this resolution, the president and secretary, under the seal of the Nevada
Company, granted to E. F. Gray, in consideration of $1, and of the terms and conditions of
the agreement, the right, privilege, and option to purchase all the property of the Nevada
Company described therein for the price of $250,000, payable as provided in the above
resolution.
50 Nev. 56, 63 (1926) Smith v. Gray
Company described therein for the price of $250,000, payable as provided in the above
resolution.
Pursuant to the resolution, E. F. Gray promoted and organized the Gray Mining Company,
a corporation, under the laws of the State of Delaware, with 100,000 shares of capital stock,
of no par value. Upon its organization, E. F. Gray assigned to the Gray Company said option
agreement, which assignment was approved by the Nevada Company. The Gray Company
took possession of the property covered by the option, and proceeded to carry out a plan and
policy for its development upon a large and expensive scale. During the first year of the
option it expended in excess of the $25,000 required by the option agreement in development
work on the property. It extended a tunnel into the property for a distance of 2,500 feet, which
exposed 4,000,000 tons of commercial ore. The successful development of the property
attracted a large number of people to the mining district. An independent townsite company
was organized, and as a result the town of Contact came into existence.
At this stage of development the Gray Company took up the question of transportation. An
independent company was formed to build a railroad between Rogerson, Idaho, and Wells,
Nevada, which would pass through the town of Contact. It was represented that the building
company would have sufficient funds to construct said road, provided certain amounts could
be secured from the States of Idaho and Nevada. A certificate was granted by the Interstate
Commerce Commission to construct the road, but the parties were unable to finance the
enterprise. Thereafter certain committees from Idaho and Nevada, of one of which the
defendant E. F. Gray was a member, succeeded in having the Union Pacific Railway
Company build and equip a railroad between said points.
During the running of the option, the Nevada Company, on August 19, 1920, upon request
of the Gray Company, extended the period of the option to September 23, 1922. On August 9,
1921, the option was again extended to September 23, 1923.
50 Nev. 56, 64 (1926) Smith v. Gray
again extended to September 23, 1923. On August 25, 1922, upon request of the Gray
Company, the option was extended to September 23, 1924. The several resolutions extending
the time of the option show that, because of the adverse business conditions, it was difficult
for the Gray Company to finance the development work being carried on by it, and that it was
deemed for the best interests of the Nevada Company to grant said extensions. On these dates
E. F. Messinger, E. F. Gray, Myra K. Price, E. S. Price, and G. H. Reed composed the board
of directors of the Nevada Company.
On September 1, 1922, the Gray Company, in accordance with the resolution of September
11, 1918, issued a circular letter to the stockholders of the Nevada Company, as follows:
You are hereby notified that you have been granted the privilege of exchanging your
stock for stock of this company in the proportion of 505.05 shares of the Nevada Company
stock valued at 19.8 cents per share, for one share of the stock of this company valued at $100
per share.
This privilege must be exercised by you on or before the 31st day of July, 1923.
The proof shows that 37 out of 48 stockholders of the Nevada Company exchanged their
stock for stock in the Gray Company, upon the basis of said proposal for exchange of stock
contained in the resolution of the board of directors of the Nevada Company and the above
circular letter. E. F. Gray became a director in the Nevada Company, with one share of stock;
the other directors being E. F. Messinger, G. H. Reed, E. S. Price, and Myra K. Price. The
stock of the Nevada Company was held as follows:
Defendant Gray Mining Company approximately........ 936,337 shares
Defendant E. F. Gray 1 share
Plaintiff Henry Smith 291,742 shares
Plaintiff Canalise Smith 947 shares
Plaintiff H. M. Grinnell 3,334 shares
E. F. Messinger 1 share
G. H. Reed 1 share
Various other stockholders 29,406 shares The present directors of the
Nevada Company are E. F. Messinger, G. H. Reed, E. F. Gray, Laird Wilcox, and Oscar
Anderson.
50 Nev. 56, 65 (1926) Smith v. Gray
The present directors of the Nevada Company are E. F. Messinger, G. H. Reed, E. F. Gray,
Laird Wilcox, and Oscar Anderson. The present directors of the Gray Company are E. F.
Gray, E. L. R. Wallace, Franklin E. Clark, E. F. Messinger, Joesph B. Cotton, and Laird
Wilcox.
The evidence tends to show that the expenditure of $240,000 by the Gray Company and
the securing of a railroad, the property of the Nevada Company was at the time of the
commencement of this action of the reasonable value of $1,500,000.
The bill of complaint herein was filed on August 19, 1924. The option agreement referred
to is made a part of the complaint by proper reference, and is made an exhibit. The complaint
alleges, in substance, that upon the execution of the option agreement the officers of the
Nevada Company exchanged practically all of their stock for stock in the Gray Company, and
transferred one share of stock of the company to the defendant E. F. Gray; that the Gray
Company at the present time holds 909,329 shares of the stock of the Nevada Company, and
its officers and trustees do and perform such acts and things as are demanded and required of
them by the officers and trustees of the Gray Company; that upon the refusal of plaintiffs to
transfer their stock the defendants brought pressure to bear upon them to extend the time limit
of the option agreement, to their irreparable damage and injury. It is alleged that a fair basis
of exchange would be not to exceed 63 shares of Nevada Copper Mining, Milling & Power
Company stock for one share of Gray Mining Company stock. It is further alleged that E. F.
Gray, E. F. Messinger, G. H. Reed, E. S. Price, Myra K. Price, and the defendant Gray
Company entered into a conspiracy for the purpose of defrauding the plaintiffs and other
minority stockholders of the Nevada Company, and for the purpose of forcing them to
exchange their stock on the basis above set out, or freezing them out entirely, and making
their stock entirely worthless, and that, unless restrained, defendants would continue to
extend said option and to prevent plaintiffs and other minority stockholders from realizing
any amount upon their stock, and to make the same entirely worthless.
50 Nev. 56, 66 (1926) Smith v. Gray
option and to prevent plaintiffs and other minority stockholders from realizing any amount
upon their stock, and to make the same entirely worthless.
The prayer of the complaint is to the effect, first, that a permanent injunction be issued
restraining defendants from taking any action whatsoever to extend the option agreement, and
for a mandatory injunction requiring E. F. Gray and the Gray Company to either pay the
balance of $225,000 due on said option or forfeit all rights in the property covered thereby;
secondly, that the court enter its decree enforcing said option and finding that the Gray
Company shall pay plaintiffs and such other of the stockholders of the Nevada Company as
may join in this suit their proportionate share of said $225,000 represented by their shares of
stock in the Nevada Company, and, upon failure so to do, that plaintiffs be adjudged to be
undivided owners of the property covered by said option in the proportionate amount which
their stock in the Nevada Company bears to the whole amount of the stock of said company.
The answer of the defendants practically admits all the material facts, but specifically
denies the conclusions drawn therefrom with reference to the allegations of fraud, conspiracy,
and oppression, and for defense recites the facts and circumstances herein detailed, and prays
that the defendants take nothing by their complaint. The plaintiffs for reply set up by way of
estoppel or res judicata against all the claims and allegations contained in the answer the
judgment roll in an action commenced in August, 1924, in the superior court of Pierce
County, State of Washington, wherein these plaintiffs were plaintiffs and E. F. Messinger and
G. H. Reed, as directors and trustees of the Nevada Company, and the Tacoma Savings Bank
& Trust Company were defendants. It is claimed in the reply that, by reason of the findings
and decree of the Washington court in favor of plaintiffs, these defendants are estopped from
denying the facts alleged in the complaint which were adjudicated against defendants in the
Washington case.
50 Nev. 56, 67 (1926) Smith v. Gray
The record discloses that upon the trial of this action the attorneys for the respective
parties stipulated that at the time of the commencement of this action there was no valid
extension of the option agreement, and there was no valid and binding option in existence.
Other facts will be commented upon in the course of this opinion.
The legal questions involved on this appeal may be classified under two headings: (1)
Questions relating to fraud, conspiracy, and violations of trust and confidence; (2) questions
relating to estoppel or res judicata.
If the contentions of plaintiffs relative to res judicata are sustained, they dispose of this
case. We shall therefore consider them first.
The decree and findings of the superior court of Pierce County, State of Washington, were
affirmed by the supreme court of that state in the case of Smith v. Nevada Copper Mining,
Milling & Power Co., 137 Wash. 317, 242 P. 367. We note that the supreme court in the
course of its opinion states:
Upon the hearing of the case, on issues completed, no judgment was given against the
Gray Mining Company, manifestly for the reason that it was not a party to the action and was
at all times a foreign corporation doing no business in this state.
1, 2. We are in accord with the holding of the trial court that to make a matter res judicata
there must be a concurrence of four conditions, namely: (1) Identity in the thing sued for; (2)
identity of the cause of action; (3) identity of persons and of parties to the action; (4) identity
of the quality in the persons for or against whom the claim is made. 34 Cyc. 1666, and cases
cited under note 56. Undoubtedly plaintiffs' plea of estoppel or res judicata lacks two of the
required conditions: (1) Identity of parties to the action, and (2) identity in the thing sued for.
Therefore the contention that the defendants by reason of the decree in the Washington case
are estopped from taking issue with the allegations of the complaint herein is untenable.
50 Nev. 56, 68 (1926) Smith v. Gray
with the allegations of the complaint herein is untenable.
3. Coming to the question relating to fraud, oppression, and violations of trust and
confidence, the material facts are undisputed. The only dispute between the parties being the
inferences drawn therefrom. The facts speak for themselves. They must be taken in their
entirety, and weighed with and considered with reference to all the conditions and
surroundings of the Nevada Company to determine whether the defendants have so acted as
to deprive plaintiffs of their valuable property rights, or to entitle them to the relief
demanded.
4. The principles of law applicable to the undisputed facts are so well defined that it
would be a matter of supererogation to incumber this opinion with a review of them. The
directors and managing officers of a corporation, says Pomeroy, occupy the position of quasi
trustees towards the stockholders alone, and not at all towards the corporation with respect to
the shares of stock. Since the stockholders own these shares, and since the value thereof and
all their rights connected therewith are affected by the conduct of the directors, a trust relation
plainly exists between the stockholders and the directors, which is concerned with, and
confined to, the shares of stock held by the stockholders. 3 Pomeroy Eq. Jur. (4th ed.) sec.
1090.
5, 6. The directors and managing officers of the Nevada Company are charged by the bill
of complaint with having entered into a conspiracy with E. F. Gray and the Gray Company for
the purpose of defrauding plaintiffs and other minority stockholders, and for the purpose of
forcing them to accept Gray Company's stock for their stock in the Nevada Company upon an
unfair basis, or freezing them out entirely and making their stock in the Nevada Company
utterly worthless. We are of opinion that plaintiffs utterly fail to establish these allegations in
their complaint, which furnish the grounds for a court of equity to interfere in their behalf.
Undoubtedly it is the law that, where the majority stockholders are oppressively and illegally
pursuing a course, in the name of the corporation, which is in violation of the rights of the
minority, and which can only be restrained by the aid of a court of equity, a stockholder
may sue in equity on behalf of himself and other stockholders who may come in for
appropriate relief.
50 Nev. 56, 69 (1926) Smith v. Gray
of the rights of the minority, and which can only be restrained by the aid of a court of equity,
a stockholder may sue in equity on behalf of himself and other stockholders who may come in
for appropriate relief. Private Corporations (Clark & Marshall), sec. 536, p. 1661. It is a
significant fact in this case that none of the stockholders of the Nevada Company are here
complaining of the transactions carried on between the defendant corporations except
plaintiffs. The question to be decided is whether the facts presented by the record are of such
a character as to bring this case within the application of the principles of equity hereinabove
declared.
It will be observed that no point is made that the giving to E. F. Gray of an option to
purchase the property of the Gray Company, and obligating him to organize a holding
company, and give to its stockholders the right, privilege, or option to exchange their stock
for stock in the company to be organized upon the basis specified in the circular letter of the
Gray Company, was an ultra vires act.
7. Taking into consideration, as we must, the condition of the Nevada Company when the
transactions complained of were being carried on, we are satisfied that the directors of the
Nevada Company evidently honestly believed that they at all times were acting for the best
interest of the stockholders of the Nevada Company and within their powers. There was an
evident belief among the directors and stockholders of that company that with development
the property, then in prospect stage, would prove to be of great value. In this they were not
disappointed. The proof tends to show that, by reason of the expenditure by the Gray
Company of approximately $240,000 in development and the securing of transportation, the
property at the time of the commencement of this action was reasonably worth $1,500,000.
The acts with reference to the exchange of stock were not the acts of the corporation, but of
the shareholders individually. It is hard to understand in what respect the plaintiffs were
oppressed or injured by the act of the majority of the stockholders of the Nevada Company
in exchanging their stock for stock in the Gray Company.
50 Nev. 56, 70 (1926) Smith v. Gray
the act of the majority of the stockholders of the Nevada Company in exchanging their stock
for stock in the Gray Company. The proceedings were certainly open and free from actual
fraud, and the presumption is that the stockholders acted upon their individual judgment, and
for their own best interests. There was no fraud; no conspiracy. It was the open and avowed
purpose of the directors of the Nevada Company and its stockholders to enlist the Gray
Company in financing the development of the property of the Nevada Company and placing it
upon a paying basis. The proof tends to show that, upon the splendid showing made by the
expenditure by the Gray Company of $240,000 on the property, a majority of the stockholders
deemed it for their best interests to exchange their stock in lieu of their proportionate share of
the purchase price fixed in the option agreement, as they had the unquestioned right to do.
8, 9. In this connection the proof shows that the plaintiff Henry Smith, upon the
organization of the Gray Company, became a director, and that he participated in the adoption
of the resolution requiring E. F. Gray to form a holding company, and to give the
stockholders of the Nevada Company the privilege or option to exchange their stock if they so
desired. It appears that in two letters of Henry Smith in evidence he expressed himself as
being desirous of releasing his stock in the Nevada Company, then held in pledge by a third
party, so as to enable him to exchange his stock for stock in the Gray Company, which he
stated he was anxious to do. The plaintiffs are presumed to have known that, if a majority of
the shareholders exchanged their stock, it would of necessity result in giving to the Gray
Company the control of the majority of the stock of the Nevada Company. The plaintiffs
presumably had full knowledge of the plan and policy of the Gray Company to effect the
exchange of stock as proposed in the resolutions of the Nevada Company and the circular
letter of the Gray Company, if the property proved on development to be of sufficient value to
induce the stockholders to make the exchange.
50 Nev. 56, 71 (1926) Smith v. Gray
to make the exchange. In this situation it is difficult to understand upon what principle of
equity jurisprudence the plaintiffs can question the validity of the acts and conduct of the
directors and stockholders of either corporation.
In fairness to Mr. Smith, it is proper to state that as a witness in his own behalf he testified
upon the trial that he at no time assented to the resolutions extending the time of the option
agreement, except upon the condition that the Gray Company would be required to fix a
definite time limit for the payment of the purchase price of the property as fixed in the option
agreement. The trial court found against the testimony of Mr. Smith in this regard upon
conflicting evidence, and, in effect, found that he had acquiesced in the several resolutions
extending the time of the option agreement and was bound thereby. There was certainly no
evidence to justify a finding that by reason of said extension the directors and the majority of
the stockholders of the Nevada Company, in exchanging their stock in the Gray Company,
committed a fraud upon, or oppression on, the minority stockholders of the company by
extending the time limit of the option agreement. Furthermore, there is no necessity to enter
upon a discussion of the acts of the company extending the time limit of the option when it
affirmatively appears that the attorneys for the respective parties stipulated that at the
commencement of this action there was no valid or binding option in existence.
10-14. The debatable question is whether the facts show any such constructive fraud upon
the part of the defendants as would require a court of equity to interfere and to declare the
transactions complained of to be fraudulent in law. The plaintiffs take the position that, upon
their refusal to exchange their stock in the Nevada Company for stock in the Gray Company,
they were entitled to a mandatory order compelling the defendant Gray and the Gray
Company to pay them in cash their proportionate share of the amount due under the option
agreement of $225,000, as represented by the ratio which their shares bore to the whole
number of shares of the Nevada Company.
50 Nev. 56, 72 (1926) Smith v. Gray
their shares bore to the whole number of shares of the Nevada Company. We do not think the
facts and circumstances presented by this record justify or call for such relief. The only
averments in the bill of complaint which give plaintiffs any standing in a court of equity as
minority stockholders are the allegations in reference to an alleged conspiracy on the part of
the directors and managing officers of the Nevada Company to oppress plaintiffs and other
minority stockholders into exchanging their stock for stock in the Gray Company. As above
stated, there was nothing in the evidence to justify such a finding. It may be conceded that the
majority stockholders are bound not to act fraudulently or in bad faith, but, where the acts of
the majority are neither fraudulent nor ultra vires, the minority or dissenting stockholders
have no ground of complaint. There is no rule of law which prevents one or more persons
from purchasing a majority of the shares of a corporation for the purpose of acquiring control
thereof. It is true that when the majority of shares of a corporation are held or controlled by
another corporation its affairs must be managed without fraud in the interest of all the
stockholders and not for the aggrandizement of the majority stockholders. 14 C. J. sec. 1292,
p. 850. We find nothing in the law of Arizona, under which the Nevada Company was
created, that prevents stockholders from exchanging their stock for stock in another
corporation, either for investment or control. It appears that the plaintiffs, with full knowledge
of all the facts, permitted the Gray Company to acquire the control of the outstanding stock of
the Nevada Company without objection. And the evidence tends to show that the plaintiffs,
particularly the plaintiff Smith, participated in the movement of the Gray Company to bring
about an exchange of stock as outlined in the resolution of the Nevada Company of
September 11, 1918, and the circular letter of the Gray Company. There is running through
the complaint in this case an attempted assertion of a cause of action against the defendants,
not for the use and benefit of the Nevada Company, but exclusively affecting the
complainants as individuals.
50 Nev. 56, 73 (1926) Smith v. Gray
for the use and benefit of the Nevada Company, but exclusively affecting the complainants as
individuals. Such a cause of action is a personal one, and, but for the allegations of the
complaint with reference to fraud and oppression, the plaintiffs would have no standing
whatever in a court of equity as minority stockholders.
Plaintiffs have utterly failed to show any betrayal of trust or confidence on the part of the
defendants, and we think, after a review of the evidence, that the findings of the trial court are
amply sustained, and no other findings would have been possible in view of the undisputed
facts which appeared upon the trial. It is asserted, however, that through the predominant
influence of E. F. Gray as the owner of the majority of the stock of the Gray Company, the
majority of the stockholders in the Nevada Company were induced to make the exchange of
stock solely for the use and benefit of the gray Company, and to enable it to acquire an
interest therein without the payment of any consideration to the detriment and injury of the
stockholders of the Nevada Company. We are impressed from the evidence that it was the
success of the Gray Company in making a mine out of the property of the Nevada Company
that induced a large majority of its stockholders to exchange their stock for stock in the Gray
Company. There is certainly no evidence to justify a finding that E. F. Gray or the Gray
Company has done any act by which the property or business of the Nevada Company has
been interfered with or injured, or that, by reason of the control by the Gray Company of the
majority of the stock of the Nevada Company, the intermingling directors of the two
companies were, at the commencement of this action, oppressively and illegally pursuing a
course in violation of the rights of plaintiffs and other minority stockholders of the Nevada
Company. There is no proof to show a continuing intention on the part of the Gray Company
to absorb or destroy the interest of the minority stockholders of the Nevada Company, or to
affect the integrity of the corporation, or to interfere with its internal management, to the
detriment and injury of the corporation or its stockholders.
50 Nev. 56, 74 (1926) Smith v. Gray
of the corporation, or to interfere with its internal management, to the detriment and injury of
the corporation or its stockholders.
We find no occasion to disturb the findings of the lower court, and its judgment should be
affirmed.
It is so ordered.
March 2, 1927.
Per Curiam:
Rehearing denied.
____________
50 Nev. 74, 74 (1926) Segale v. Pagni
SEGALE v. PAGNI
No. 2724
December 1, 1926. 250 P. 991.
1. HomesteadMortgage Securing Loan to Pay Purchase-Money Mortgage Held Not Subject to Homestead
Exemption, Though Unsigned by Spouses.
Where defendants gave mortgage on real estate, not signed by spouses, for express purpose of
securing money to pay off purchase-money mortgage, spouses could not, on foreclosure, set up
homestead exemption, as mortgage was for purchase money, under Const. art. 4, sec. 30, and Rev. Laws,
sec. 2142.
Homesteads29 C. J. sec. 212, p. 864, n. 26.
See, also, 49 Nev. 313.
Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.
Action by Eugene Segale, administrator of the estate of Mike Maroni, deceased, against
Sabatino Pagni and another, wherein Maria Pagni and another intervened. From a judgment
for plaintiff and an order denying a motion for a new trial, defendants and interveners appeal.
Affirmed. Rehearing denied.
Frame & Raffetto, for Appellants:
Mortgage to Maroni was not for purchase price. It was not made at time of transfer nor
under express agreement that money be loaned and used to pay purchase price. Goldman v.
Clark, 1 Nev. 518; First N.
Bank v. Meyers, 39 Nev. 235; 29 C. J. 866. Transaction was mere debt secured by mortgage,
not vendor's lien for purchase price. Rev. Laws, 228; 13 R. C. L. sec. 94; Thomas v. Craft, 15
Ann. Cas. 1118.
Any portion of community land, whether occupied or not, may be selected as homestead.
Contention that land was not subject to homestead because held in joint tenancy is untenable.
13 R. C. L. 572; Gooch v. Gooch, 133 P. 242. Subsequent partition by cotenants does not
disturb previously selected homesteads. 29 C. J. 849; Massillon Engine Co. v. Barrow, 203
SW. 923.
Satisfaction of original mortgage rendered it functus officio. Subrogation, not having been
pleaded, is not in case. Laffranchini v. Clark, 39 Nev. 48, is entirely different case.
Homestead can be conveyed only by joint instrument executed by husband and wife.
Loomis v. Loomis, 82 P. 679.
Wm. M. Kearney and Harry Swanson, for Respondents:
Mortgage contained agreement that two prior mortgages were to be paid out of
consideration arising by virtue of it. This saving clause kept alive rights of prior mortgagees.
Van Loben Sels v. Bunnel, 53 P. 266; 37 Cyc. 363; Laffranchini v. Clark, 39 Nev. 48.
Homestead rights cannot be acquired as against mortgage debt for purchase money. Hopper v.
Parkinson, 5 Nev. 185; Rev. Laws, 2142.
Subsequent mortgagee who, in order to preserve his security, pays prior incumbrance is
entitled to be subrogated to rights of proper mortgagee. Swain v. Stockton, etc., Society, 21 P.
365; 37 Cyc. 458. Case turns, not on question of subrogation, but on whether money was lent
to buy land and used for that purpose. It was, and land is not exempt from payment of
obligations contracted for its purchase. Farmers Bank v. Pickering, 205 P. 1110; 29 C. J. 866.
Wife's attempt to carve out homestead cannot avail after prior conveyance by husband
with her consent.
Bier v. Leisle, 156 P. 870; Rev. Laws 2142. Wife's consent need not be in writing. Sullivan v.
Wicluta, 68 P. 55.
Homestead cannot be carved out of land held in joint tenancy or by partners. Terry v. Berry,
13 Nev. 514.
OPINION
By the Court, Coleman, C. J.:
This action was instituted to foreclose a mortgage upon a certain ranch. The wives of the
defendants intervened, claiming that, since they did not sign the mortgage, they are entitled to
their homestead exemptions in the property covered by the mortgage, free from the mortgage
lien and debt. The court entered judgment against the defendants and the interveners as well.
The interveners have appealed from both the judgment and the order denying their motion for
a new trial.
The facts necessary to an understanding of the case are these: On May 1, 1915, the
Comstock Tunnel Company, a corporation, sold the ranch in question to Sabatino Pagni and
Constantine Peri for $17,000; $3,000 being paid in cash, the balance being evidenced by two
notes which were secured by a mortgage on the ranch, the notes and mortgage being executed
by the parties named. One note was for $4,000, payable in one year, and the other, for
$10,000, payable in four years. The purchasers entered into possession of the ranch.
The interest in the ranch held by Peri was acquired by Attilo Pagni and Sylvio Pagni after
the execution of the mortgage to the Comstock Company, and before the first payment fell
due. When the $4,000 note fell due, the Pagnis were unable to meet it, and then induced Mike
Maroni to advance the money with which to pay it. They gave Maroni their note for the
money thus advanced, and secured it by a second mortgage upon the ranch. When the
$10,000 note fell due, the Pagnis, being unable to make payment, induced Maroni to advance
money to pay it off. The Pagnis gave Maroni their note for $14,000, the aggregate of the
amount he loaned to pay off the mortgage indebtedness, and secured its payment by the
mortgage now sought to be foreclosed.
their note for $14,000, the aggregate of the amount he loaned to pay off the mortgage
indebtedness, and secured its payment by the mortgage now sought to be foreclosed. This
mortgage contains the following provision:
It is understood that this mortgage is a first mortgage on the property described herein,
and that the discharge of the two prior mortgages is to be accomplished out of the
consideration named herein.
The mortgage to secure the $4,000, advanced by Maroni to pay the $4,000 note due the
Comstock Company, and the $10,000 mortgage of the Comstock Company, are the two prior
mortgages referred to.
We will allude to the parties as they were designated in the trial court.
In opposition to the contention of the interveners, to the effect that, since they did not sign
the mortgage to Maroni, their homestead rights are exempt from foreclosure, the plaintiff
contends (1) that the indebtedness for which it is sought to foreclose the mortgage is a part of
the purchase money of the property, and hence it was not necessary that the interveners sign
the mortgage; (2) that the ranch is held in joint tenancy, and that a homestead cannot be
carved therefrom; (3) that Maroni was subrogated to the rights of the Comstock Tunnel
Company; (4) that the interveners are estopped to deny the validity of the mortgage.
Article 4, sec. 30, of our constitution, and section 2142, Rev. Laws, provide that a
homestead shall be exempt from sale for all claims except for the purchase money and for
improvements.
In view of respondent's contention, we must determine if the $14,000, to secure which the
mortgage sought to be foreclosed was given, is a part of the purchase money paid for the
ranch by the defendants.
In what sense did the constitutional convention and the legislature use the term purchase
money in the connection referred to? We can reach no other conclusion than that they meant,
not only the unpaid balance of the purchase price due from the grantee to the grantor, but
also the money which was used in paying for the property, no matter from what source it
came.
grantor, but also the money which was used in paying for the property, no matter from what
source it came. What else could have been meant? Did the bodies mentioned have more
consideration for the person from whom the title passed, who had not received his money,
than for a third person who advanced it that the grantor might be paid? What equitable or
legal considerations could have prompted any such thought? It would be an unsound process
of reasoning which would lead to the conclusion that anything different was intended in the
one case than in the other, than the usual meaning applied to the term purchase money.
The Supreme Court of California, speaking through Mr. Justice Baldwin, disposed of the
question before us in a very brief opinion, wherein it is said:
Can it make any difference in equity whether the first debt to be renewed or another
debtif it be anotherfor the same sum created, to raise money to pay off the first? A clear
title to the homestead could not vest until the payment of the purchase money. In equity and
in effect, the advance of the money by Carr, under the circumstances, to pay off the purchase
money due, was equivalent to so much purchase money. The debt was to all intents and
purposes the same, though the creditor was changed. The authorities cited by the respondent,
and especially [Marriot v. Davey] 1 Dall. [Pa.] 164 [1 L. Ed. 83; Kauffman v. Myer], 6 Watts
[Pa.] 134; [Bemus v. Quiggle] 7 Watts [Pa.] 362, and Dillon v. Byrne, 5 Cal. 453 [455];
[Marsh v. Rice] 1 N. H. 168, support this view; and, if we could find no case to support it, the
sense and apparent justice of the rule would go far towards inducing us to adopt it. Carr v.
Caldwell, 10 Cal. 380, 70 Am. Dec. 740.
The Supreme Court of Kansas, in an early opinion of that court, in Nichols v. Overacker,
16 Kan. 54, in disposing of the question, said:
The borrowing and loaning of the money was simply a part of one common or general
purpose, of which the purchase of the land was another part, and the giving of the note and
mortgage still another part. All were parts of a general purpose, of which the main object
was the purchase of said land.
All were parts of a general purpose, of which the main object was the purchase of said land.
All were done in and about the purchase of said land, and to accomplish that purpose. And all
contributed thereto. Without the money, the land could not have been purchased. Obligations
of the kind we are now considering certainly come within the spirit of the provision of the
constitution above quoted. The spirit of that provision is that no man shall enjoy property as a
homestead, or an improvement thereon, as against the just claims of the person who procured
it for him. This is highly equitable and just.
Another case, which presents unanswerable reasoning in support of the view stated, is
Moseley v. Bevins, 91 Ky. 260, 15 SW. 527. The great weight of authority is in accord with
the view above stated, and we content ourselves with citing some of the authorities in support
thereof. Powers v. Pense, 20 Wyo. 327, 123 P. 925, 40 L. R. A. (N. S.) 785; Boles v. Walton,
32 Tex. Civ. App. 595, 74 SW. 81; Swift v. Kraemer, 13 Cal. 526, 73 Am. Dec. 603; Hicks v.
Morris, 57 Tex. 658; McWilliams v. Bones, 84 Ga. 203, 10 SE. 724; Scott v. Land, etc., Co.,
127 Ala. 161, 28 So. 709; Western Mort. & I. Co. v. Ganzer, 63 F. 647, 11 C. C. A. 371;
Middlebrooks v. Warren, 59 Ga. 230; Lawson v. Pringle, 98 N. C. 450, 4 SE. 188; Van
Loben Sels v. Bunnell, 120 Cal. 680, 53 P. 266; Kangerga & Bro. v. Willard (Tex. Civ.
App.), 191 SW. 195; Zehr v. May, 67 Okl. 97, 169 P. 1077, L. R. A. 1918c, 431; Magee v.
Magee, 51 Ill. 500, 99 Am. Dec. 571; Dorrah v. Hill, 73 Miss. 787, 19 So. 961, 32 L. R. A.
631; Calmes v. McCracken, 8 S. C. 87; 13 R. C. L. 604; 29 C.J. 864.
For the reason given, the judgment is affirmed.
January 18, 1927.
Per Curiam:
Rehearing denied.
____________
50 Nev. 80, 80 (1926) Springmeyer v. Irrigation District
SPRINGMEYER L. D. & L. S. CO. v. IRRIGATION
DISTRICT NO. 1.
No. 2660
December 4, 1926. 251 P. 351.
1. WaterStatute Repealed.
Stats. 1911, c. 134, secs. 60 and 61, providing that land, to be excluded from irrigation district, must
be too high, were repealed by Stats. 1919, c. 64, sec. 44, as amended by Stats. 1921, c. 79, sec. 19, and
Stats. 1923, c. 171, sec. 15, providing for exclusion if land will not receive benefits, in view of Stats.
1919, c. 64, secs. 68, 69.
2. WaterStatutes Held Applicable.
Stats. 1919, c. 64, sec. 44, as amended by Stats. 1923, c. 171, sec. 15, relative to exclusion of
property from irrigation district, held applicable to irrigation district organized, under Stats. 1911. c. 134,
without unanimous resolution of board of directors, prescribed by Stats. 1919, c. 171, sec. 68, as
amended by Stats. 1923, c. 171, sec. 20, since act of 1919 specifically repeals all inconsistent provisions
of act of 1911.
3. WaterEvidence.
Evidence held sufficient to show that land would not be benefited by proposed system of storage
works which irrigation district had under contemplation.
4. WaterOne Participating in Establishing Irrigation District Held Entitled to Petition to
Have Land Excluded.
One who participated in establishing irrigation district may petition to have land excluded therefrom,
where no improvements had been commenced, there was no indebtedness outstanding, the question of
benefits had never been determined.
5. Appeal and ErrorConflicting Evidence.
Finding of trial court on conflicting evidence held conclusive on appellate court, in absence of
showing that wrong conclusion was reached.
Waters40 Cyc. 820, n. 11.
Appeal from First Judicial District Court, Douglas County; G. A. Ballard, Judge.
The H. H. Springmeyer Land Development & Live Stock Company filed its petition with
the Board of Directors of Irrigation District No. 1, Carson Valley Unit, Truckee-Carson
Project, seeking to have its lands excluded from the district. The board of directors denied the
petition, and the petitioners filed a proceeding in the district court to have the order set
aside.
in the district court to have the order set aside. From a judgment setting aside the order of the
board of directors and from an order overruling a motion for a new trial, the irrigation district
appeals. Affirmed.
Platt & Sanford, for Appellant:
District was organized in 1914 under Stats. 1911, 248. Salient features were not changed
by acts of 1915 and 1917. Sole ground for withdrawal in 1911 act was that lands were too
high to be watered. Many grounds are urged in petition, but not this. Testimony showed lands
are not too high, but are watered by direct flow of East Carson River. Provisions of Stats.
1919, 103, expressly make it nonapplicable to present case. Section 44 limits action under it
to districts now or hereafter formed.
Irrigation acts are intended to encourage development, not to prevent it. Acts of 1911 and
1919 are based on California Wright Act. Assessments are proportioned to benefits
received. Every part of law should be interpreted with reference to its general object. Roney
v. Buckland, 4 Nev. 45.
If 1919 act is held applicable, what constitutes benefit is of importance. Lands within district
which receive only indirect benefit have been held assessable. O. S. L. Ry. v. Irrigation
District, 102 P. 908; Board of Directors v. Tregea, 26 P. 237; Fallbrook Irrigation District v.
Bradley, 164 U. S. 112.
Land owner waived right to withdraw if he did not object to being included when
opportunity was afforded. Knowles v. District, 101 P. 81.
Cantwell & Springmeyer, for Respondent:
District was organized to have United States build reservoirs on headwaters of Carson
River. There was no thought of district's building them. Respondent took active part in
organization for public spirited motives only, as it always had sufficient water and no crop
failures in fifty years. United States never built reservoirs, and in 1923 directors attempted to
force upon farmers reservoirs that could benefit only few, at expense of others, upon sites
rejected by government.
reservoirs that could benefit only few, at expense of others, upon sites rejected by
government. Respondent thereupon filed its petition to withdraw, as it had perfect right to do.
Stats. 1919, 114, repealed act of 1911 and all acts subsequent thereto. Legislation before
1919 needs no examination. Stats. 1921, 133, expressly amended sec. 44 of Stats. 1919,
simple requirement of which is that petition describe boundaries of lands owned by them, and
state reason for exclusion, and made it duty of directors to exclude lands not benefited. Stats.
1923, 296, contains requirement for quick action and notice not before required. Districts
theretofore organized were made subject to its provisions, so far as applicable. Sec. 68.
Exclusion is provided for in section 15.
Acts of 1911, 1919, 1921, and 1923 all provide that when lands are not benefited they
may be excluded. Nevada has no decision on the point, but other states have so held. 40 Cyc.
820; Knowles v. Irrigation District, 101 P. 81; In Re Riggs, 210 P. 217; In Re Harper, 216 P.
1020; Harrelson v. Irrigation District, 128 P. 1010.
Appellant offered no direct evidence that district would benefit respondent's land, or that
there was ever shortage of water or failure of crops in over fifty years. There was no conflict
of evidence. Even if there were, appellate court will not disturb findings based on substantial
evidence. Gaston v. Avansino, 39 Nev. 128.
OPINION
By the Court, Dunn, District Judge:
The appellant, Irrigation District No. 1, Carson Valley Unit, Truckee-Carson Project, is an
irrigation district in Carson Valley, Nevada, organized July 13, 1914, under and by virtue of
that certain act of the legislature, approved March 20, 1911. Statutes 1911, p. 248.
The respondent, H. H. Springmeyer Land Development & Live Stock Company, is a
corporation, organized and existing under and by virtue of the laws of the State of Nevada,
and owns certain lands included within the boundaries of the appellant, irrigation district.
of Nevada, and owns certain lands included within the boundaries of the appellant, irrigation
district.
The respondent sought to have its lands excluded from the irrigation district and filed its
petition with the board of directors of said irrigation district, alleging, among other things that
said lands cannot be benefited by any system of works in contemplation or otherwise by said
district. The board of directors denied the petition, and thereupon the respondent filed a
proceeding in the district court of Douglas County, Nevada, to have the order of the board of
directors set aside and an order made excluding the lands from the district. The appellant
thereafter filed a motion to strike and dismiss the petition upon the following grounds: (1)
That the court had no jurisdiction of the matter; (2) that the petition did not state any fact or
facts sufficient to comply with the law providing for such a petition nor facts sufficient to
constitute a cause of action.
The motion to strike and dismiss was overruled, and an answer to the petition was then
filed, and a hearing had, and, upon the matter being submitted, the court entered its judgment
setting aside the order of the board of directors of the irrigation districtrefusing to exclude
the lands of the respondentand further decreed the said board hereby is directed to exclude
said lands from said district. * * * Thereafter a motion for a new trial was made and denied,
and this appeal is taken from said judgment and from the order overruling the motion for a
new trial.
The questions or determination are:
(1) Is the irrigation district governed by the law of 1911, or by the law of 1919, as
amended?
(2) If it is governed by the 1919 law, as amended, would respondent's lands be benefited
by any proposed improvement the district might make?
The appellant contends: (1) That the district was organized under the law of 1911, and that
sections 60 and 61 of said act provide that lands may only be excluded when it appears that
said lands are too high to receive a benefit from the water owned or controlled by the
district," and, since the respondent did not allege this fact in its petition, that it therefore
failed to state sufficient facts, and that the court had no jurisdiction; {2) that
respondent's water rights are not sufficient, and that the lands of respondent will be
benefited by an available additional supply of water, and also by the supervision and
distribution of the water by the irrigation district.
by the district, and, since the respondent did not allege this fact in its petition, that it
therefore failed to state sufficient facts, and that the court had no jurisdiction; (2) that
respondent's water rights are not sufficient, and that the lands of respondent will be benefited
by an available additional supply of water, and also by the supervision and distribution of the
water by the irrigation district.
The respondent contends: (1) That sections 60 and 61 of the 1911 act were repealed by the
act of 1919, as amended, and that section 44 of the act of 1919 applies; (2) that the
respondent has a full and complete water right, to wit, its 1858 water right covering some 327
acres and its 1876 water right covering some 223 acres, and that, therefore, its lands cannot
be benefited by any proposed system of the irrigation district.
1. Section 60 of the act of 1911 (Statutes 1911, p. 248) provides:
Exclusion of Land from District. The holder or holders of any title to land included within
the boundary of an irrigation district may file with the board of directors of said district a
petition in writing praying that the boundaries of said district may be so changed as to
exclude the said lands described in said petition. The petition shall describe the boundaries of
the several parcels owned by the petitioners; if the petitioners be the owners respectively of
the district parcels of land, such petition must also state that the lands described in said
petition are too high to be watered from water owned and controlled by said irrigation district.
Said petition must be acknowledged in the same manner that conveyances of land are
required to be acknowledged.
Section 61 of the same act provides:
Survey of Lands to be Excluded. The board * * * must cause the lands * * * to be
surveyed * * * and, if found to be too high to receive any benefit, * * * must * * * exclude the
lands.
Under these sections, it is very evident that the sole ground for the exclusion of land is the
fact that the land is too high to be watered by water owned or controlled by the district."
by the district. It also appears that this fact must be stated in the petition. The petition in this
case did not state any such fact, and there was no evidence offered tending to show that the
ground was too high.
Different provisions of the 1911 act were amended and new sections were added by
subsequent legislatures in 1915 (Stats. 1915, c. 278) and 1917 (Stats. 1917, c. 150), but
sections 60 and 61 were not changed. In 1919 the legislature passed another act relating to the
same subject matter as the act of 1911, and section 68 of the act of 1919 (Statutes 1919, p.
114) provides:
Nothing in this act shall be construed so as to affect the validity of any district heretofore
organized under the laws of this state, or its rights in or to property, or any of its rights or
privileges of whatsoever kind or nature; but said districts are hereby made subject to the
provisions of this act as far as applicable.
Section 69 of the same act (Statutes 1919, p. 114) provides:
Nothing in this act shall be construed as repealing or in anywise modifying the provisions
of any other act relating to the subject of irrigation or drainage except such as may be
contained in the act entitled An act to provide for the organization and government of
drainage, irrigation and water storage districts, to provide for the acquisition of water and
other property, and for the distribution of the water thereby for irrigation purposes, and for
other matters properly connected therewith,' approved March 20, 1911, and subsequent acts
supplementary thereto or amendatory thereof, all of which acts, so far as they may be
inconsistent herewith, are hereby repealed.
It thus appears that it was the intention of the legislature to repeal all of the provisions of
the act of 1911 and amendments thereof, in so far as they are inconsistent with the provisions
of the act of 1919. The act of 1911 is the one under which the irrigation district in this case
was organized, and, as shown above, sections 60 and 61 of the 1911 act provided that lands
may only be excluded when it was shown in the petition and also determined by the board
that the lands were "too high" for the water to be used on them.
determined by the board that the lands were too high for the water to be used on them.
Section 44 of the act of 1919 (Statutes 1919, pp.103, 104) provides:
The holder or holders of title, or evidence of title, as described in section 1 hereof, may
file with the board of directors a petition, in writing, praying that the boundaries of said
district be so changed as to exclude the lands described therein. The petition shall describe
the boundaries of the several parcels owned by the petitioners and shall state the reasons for
the exclusion prayed for. The board of directors shall cause the land described in such petition
to be surveyed and reported upon by a competent irrigation engineer, and if the board shall
then find said lands to be of such a character as to prevent their receiving benefits from the
existing or proposed works, the board shall make an order changing the boundaries of said
district so as to exclude the land described in said petition.
By a comparison of this section with sections 60 and 61 of the 1911 act, we find that in the
1911 act, the petition must also state that the lands * * * are too high to be watered from
water owned and controlled by said irrigation district, and in section 44, supra, the petition
shall state the reasons for the exclusion prayed for, and if the lands be of such a character as
to prevent them from receiving benefits from the existing or proposed irrigation system then
they must be excluded: In the 1911 act they could only be excluded when they were too
high, and in the 1919 act they may be excluded for any reasons which show that the land
will not receive benefits. There is nothing in section 44 of the 1919 act which requires the
petition to show that the lands are too high. It is clear that, if there are any reasons stated
which show that the land cannot be benefited, they must be excluded, under the provisions of
section 44. Sections 60 and 61 of the 1911 act are therefore in conflict with section 44 of the
1919 act.
Section 69 of the 1919 act (Statutes 1919, p. 114) repeals all sections of the 1911 act and
amendments thereof, in so far as they are inconsistent with the provisions of this act.
repeals all sections of the 1911 act and amendments thereof, in so far as they are inconsistent
with the provisions of this act. Since sections 60 and 61 of the 1911 act are inconsistent with
section 44 of the 1919 act, which deal with the same matters, it therefore follows that sections
60 and 61 of the 1911 act are repealed and that section 44 of the 1919 act takes their place.
The legislature amended section 44 of the 1919 act in 1921 (Statutes 1921, p. 133, sec. 19)
by additional clauses to said section, but did not change it otherwise. In 1923 the legislature
again amended the 1919 act in many respects, and amended section 44 (Statutes 1923, p. 296,
sec. 15). However, it did not change the method of having lands excluded, but provided for
certain notices to be given; that if any improvements had been commenced or bonds issued
and benefits apportioned to the land, then said land could not be excluded; also provided that
an aggrieved holder of lands may institute court action. None of these amendments contains
anything about the land being too high, neither do they provide that the petition must state
that fact. All provide that the petition must state the reasons for the exclusion prayed for,
and, if the board finds said lands to be of such a character as to prevent their receiving
benefits from the existing or proposed works, the board must make an order * * * so as to
exclude the lands. These amendments to section 44 of the 1919 act are, therefore, also,
inconsistent with the provisions of sections 60 and 61 of the act of 1911.
2. The appellant contends that section 44, as amended in 1923 (Statutes 1923, p. 296) is
only applicable to districts now or hereafter formed under the provisions of this act [1919],
and that it therefore could not be invoked by the respondent, as the district was operating
under the 1911 act. Also, that the district did not pass a resolution subjecting itself to the
provisions of the 1923 act, in accordance with section 68, as amended (Statutes 1923, p. 303,
sec. 20), which provides among other things: "* * * Any district organized under prior laws
of this state may adopt and subject itself to all the provisions of this act by a unanimous
resolution of its board of directors, and the organization of such district is hereby
confirmed."
* * * Any district organized under prior laws of this state may adopt and subject itself to
all the provisions of this act by a unanimous resolution of its board of directors, and the
organization of such district is hereby confirmed.
We have pointed out above that section 69 of the 1919 act specifically repeals all
inconsistent provisions of the 1911 act; also, that section 44, as amended, and which deals
with the same subject matter as sections 60 and 61 of the 1911 act, is inconsistent with said
section 60 and 61, therefore section 44 of the 1919 act, as amended in 1923, takes the place of
sections 60 and 61 of the act of 1911, by virtue of the repealing section 69 of the 1919 act. It
was intended that the 1919 act would apply to districts organized under the 1911 act, in so far
as the provisions of the 1919 act and the 1911 act were inconsistent, and it was not therefore
necessary for the district to pass a unanimous resolution before it would be subjected to the
provisions of the 1919 act, as amended in 1923. It therefore follows that the motions to strike
and to dismiss the petition were properly overruled and denied.
3. The next question is, would the respondent's lands be benefited by any proposed system
of storage works which it has under contemplation?
There is nothing in the record showing that the district had proposed any definite plan or
project. The only thing that was being considered was some kind of storage system for
additional water. It was not shown whether the district had any water of its own, or where
said proposed storage works would be or how said water would be distributed. The
respondent admits that, when the district was formed, it consented to have its lands included
in the district, but that it now desires to have said lands excluded for several reasons, the main
one being that the respondent now has and for many years past has had complete water rights
and sufficient water for all of its purposes, and that the water users nominate and pay a water
commissioner, who is appointed by the governor and who works under the directions of the
state engineer, to regulate the distribution of the water along the Carson Valley, and that,
by reason thereof, the respondent's lands could not be benefited in any manner from any
storage system of the district or the distribution of water by said district.
state engineer, to regulate the distribution of the water along the Carson Valley, and that, by
reason thereof, the respondent's lands could not be benefited in any manner from any storage
system of the district or the distribution of water by said district.
Section 44 of the 1919 act, as amended in 1923 (Statutes 1923, p. 297), provides, among
other things, that lands may be excluded when the proposed system or systems * * * cannot
practically include such land or lands, or when such land or lands would not be benefited by
the district, or by any improvement it might make.
Considerable evidence was offered on behalf of the respondent, tending to show that
respondent had a complete water right, and that during a period of 50 years there were no
crop failures due to lack of water, and that respondent had always had sufficient water for all
of its purposes. Appellant admitted that the respondent had sufficient water for the land
covered by the 1858 water right, but contended that it did not have sufficient for its lands
covered by the 1876 water right. This conclusion was arrived at by a witness for the appellant,
who collected data regarding the amount of water which was available during a certain period
of time and from this data determine that at certain times there was a scarcity of water.
However there was no showing that respondent did not have sufficient water during that
period. There was no showing how or where the district was to obtain any additional water,
and, if it did, how respondent's lands would be benefited.
4. It is claimed by appellant that, as respondent participated in establishing the district and
took part in the elections held by the district, it is now estopped from objecting to the
boundaries established by the district, and that respondent's lands cannot now be excluded.
The only restriction placed upon the board of directors of the district, when they find that land
is subject to be excluded, is contained in section 44, supra, wherein it is provided:
* * * That if improvements have been commenced or authorized or if there are bonds or
other contracts or certificates of indebtedness outstanding, no land upon which benefits
have been apportioned shall be excluded, and no liens established shall be released.
contracts or certificates of indebtedness outstanding, no land upon which benefits have been
apportioned shall be excluded, and no liens established shall be released. * * *
There is no provision in the statute limiting or specifying the time within which the
petition must be filed, asking for the exclusion of the land from the district, and there was no
evidence showing any of the foregoing limitations existed. While the district was established
in 1914, there is no showing that the question of benefits had ever been determined in any
way.
5. There is substantial evidence to sustain the finding, both as to the sufficiency of the
respondent's water rights for all purposes, and also that the proposed storage system of the
district would not benefit the respondent's lands. The district court was the judge of the
conflicting evidence, and, where there is a substantial conflict in the evidence, the finding of
the trial court is conclusive upon the appellate court, in the absence of a showing that a wrong
conclusion was reached. Moore v. De Bernardi, 47 Nev. 33, 213 P. 1041, 220 P. 544, and
cases cited.
We, therefore, in the absence of anything to show that the court reached a wrong
conclusion, decline to disturb the finding of the lower court that the proposed storage system
of the district would not benefit the respondent's lands.
The judgment of the lower court should be affirmed.
It is so ordered.
NoteDucker, J., being disqualified, the Governor designated Hon. Frank T. Dunn,
District Judge, to sit in his stead.
[Pending on petition for rehearing.]
____________
50 Nev. 91, 91 (1927) Martin v. Duncan Automobile Co.
MARTIN v. DUNCAN AUTOMOBILE CO.
(STUART, Intervener)
2737
January 5, 1927. 252 Pac. 322.
ON ORDER APPOINTING RECEIVER
1. Appeal and ErrorMortgagor and Purchaser Interested Parties in Receivership
Proceedings.
Mortgagor of automobile and one to whom he sold it held to have sufficient interest in subject matter
to appeal from order in foreclosure suit appointing receiver pendente lite, who was directed to take
possession of mortgaged cars.
2. Chattel MortgagesConsent to Sale Waives Lien.
Where mortgagee under chattel mortgage expressly or impliedly consents to sale of mortgaged
property by mortgagor, he waives lien, and purchaser takes title free from it, regardless of whether he
knew of existence of mortgage, and notwithstanding want of knowledge, when he made purchase, that
such consent had been given.
3. Chattel MortgagesGeneral Authority to Sell Includes Particular Sales.
As affecting superiority of chattel mortgagee's lien, want of knowledge by mortgagee that sale of
mortgaged property had been made is immaterial, where he gave mortgagor general authority to sell.
4. Chattel MortgagesLimitations Void in Absence of Notice.
Any conditions placed on authority to chattel mortgagor to sell mortgaged property, or on consent to
such sale, are without force, unless purchaser had notice of them.
5. Chattel MortgagesWhen Possession by Receiver Is Not Justified.
In suit to foreclose chattel mortgage on automobile, appointment of receiver to take possession of car
held not justified as to purchaser from mortgagor, without actual notice of mortgagee, where there was
evidence that mortgagee knew of and impliedly consented to sale and delivery without payment of
mortgage.
6. Chattel MortgagesWhen Possession by Receiver Is Justified.
In suit to foreclose chattel mortgage on automobile, appointment of receiver to take possession of
automobiles held justified as to mortgagor.
7. Chattel MortgagesSale in Usual Course.
Chattel mortgages on automobiles being good as between parties, mortgagor was not in position in
foreclosure suit to claim they were void as against bona fide purchaser for value without notice, because
automobiles were allowed to be sold in usual course of trade.
C. J.CYC. REFERENCES.
Chattel Mortgages11 C. J. sec. 269, p. 557, n. 91; sec. 339, p. 624, n. 35; p. 625, n. 36, 37, 39, 47; sec.
550, p. 727, n. 62, 72 (new).
Action by Eli L. Martin, sometimes known as E. L. Martin, against the Duncan
Automobile Company, in which Charles G. Stuart intervened. From an order appointing a
receiver pendente lite, defendant and intervener appeal. Reversed as to intervener, and case
remanded.
Cooke & Stoddard and L.F. Pike, for Appellants:
No chattel mortgage, valid as against purchasers, can be made upon personal property
other than live stock, where mortgagor remains in possession with express or implied right of
sale. Stats. 1923, p. 153; Boice v. Finance & G. Co., 102 SE. 591.
Where power to sell is given and no provision is made for application of proceeds to debt,
mortgage if void per se. Lutz v. Kinney, 24 Nev. 38.
Stipulation which will invalidate mortgage is included in it will have same effect if otherwise
agreed to. 11 C. J. 572.
Permitting goods to be handled in usual course of trade destroys any claim against
purchaser as effectively as if included in mortgage, regardless of their bulk, value or
possibility of identification. Gramm v. Todd, 209 P. 3; Boice case, supra.
Plaintiff knew Duncan Company's only purpose was to sell cars in usual course. Mortgage
lien was therefore waived. State Bank v. Plow Co., 212 P. 148; Boice case, supra.
Purchasers were necessary and indispensable parties in application for receiver to take cars
away from them. Notice was necessary. Recordation is of no avail except as to persons of
the county. Recordation with secretary of state is not declared to be notice to any one, hence
it did not impart notice. 11 C. J. 538.
Parties must be brought in when complete determination cannot be had without them. Rev.
Laws, 5008; Fapp v. McQuillan, 38 Nev. 117.
Hardin v. State Bank, 205 P. 382, giving mortgagee right to claim automobile in hands of
purchaser from dealer in usual course of trade on ground that stock of automobiles is not
shifting merchandise, is based on unsound reasoning, is conductive to demoralization of
trade, and is opposed by Boice case, supra; Rogers v, Whitney, 99 A. 419; Bryan v. Johnson,
61 NW. 920; and Auto Co. v. St. Geramine, 121 Atl. 398.
W. M. Kearney and M. E. Jepson, for Respondent:
Whether mortgagee has authorized sale or is estopped to deny mortgagor's authority to
sell, depends on intent of parties and is fact to be determined. Lower court found there was no
waiver of mortgage or consent to sale, such as would release mortgage. Knollin v. Jones, 63
P. 638; Jones, Chattel Mortgages, par. 457.
To claim recordation in county where goods were bought is not notice to person who
happened to reside in another county is height of absurdity, to hold which would make act
useless piece of legislation. Domicile of purchaser is immaterial. Act places personal property
mortgage on same footing as real property mortgage. Stats. 1923, p. 153.
Separate mortgage was placed on each car, not single mortgage on whole stock of goods
usually referred to in cases that hold mortgage on shifting stock in trade is void per se. In
Hardin v. Bank, 205 P. 382, the court refused to follow Boice v. Finance & G. Co., 102 SE.
591, and held that chattel mortgage, covering one particular automobile in stock of dealer
without permission to sell, is not mortgage on shifting stock within rule that purchaser
acquires title free from mortgage. Boice case, relied on by appellants, construes so-called
traders' act of Virginia, but our act declares recordation gives notice. Sec. 5. Valid recorded
chattel mortgage creates lien prior to any subsequent lien created by any contract to which
mortgagee is not party or to which he does not give actual or implied consent.
give actual or implied consent. Hawkes v. Bank, 224 P. 224.
Stuart and Duncan Company were in court and cannot complain of lack of formal notice.
Other parties have not yet appealed.
Mortgagee has right to possession on breach of condition, and may sue to recover from
any person holding possession. Lacey v. Giboney, 36 Mo. 320, Wiekes v. Ry. Co., 67 SE.
292. Appointment of receiver is discretionary. Ft. Wayne Co. v. Ft. Payne Co., 11 So. 439.
OPINION
By the Court, Sanders, C. J.:
These appeals are taken from an order appointing a receiver pendente lite, which order
directed the receiver to take possession of four particularly described Nash automobiles, each
covered by a chattel mortgage which the mortgagee seeks by this action to have foreclosed.
The matter of the appointment of the receiver came before the trial court upon the hearing of
an order to show cause why such receiver should not be appointed.
1. The respondent, plaintiff below, has moved the dismissal of the appeals, particularly
the appeal of the intervener, because of lack of interest of appellants in the subject matter of
the appeals. The motion to dismiss is denied. While the appeals are presented and argued
before us as if there had been a trial, findings, and decree in favor of the plaintiff, as we
understand the record the only question presented by the appeals is whether the trial judge
was justified in appointing a receiver.
We shall consider this question first in connection with the appeal of Charles G. Stuart, the
intervener. These are the facts:
For some time prior to the dates herein mentioned the Duncan Automobile Company was
a licensed dealer in automobiles, and was engaged in business at 130 Sierra Street, Reno,
Nevada, where it conducted an automobile business and had a salesroom and showroom,
where it displayed new and secondhand automobiles for sale, and during this time it was
agent for Nash automobiles in Reno.
displayed new and secondhand automobiles for sale, and during this time it was agent for
Nash automobiles in Reno. Prior to the dates herein mentioned the Duncan Company, on
different dates, ordered the four automobiles in controversy from the Nash Company, which
the company shipped, and drew a sight draft on the Duncan Company for the purchase price
of each automobile with bill of lading attached. Upon the arrival of each automobile, the
Duncan Company obtained a loan from one Eli L. Martin for the purchase price of the
automobile and paid the draft and obtained the bill of lading. In order to secure the loan, the
Duncan Company executed its note and a chattel mortgage on each automobile. Each
mortgage was duly recorded.
Upon the Duncan Company securing possession of the automobiles in controversy, the
automobiles were placed in the showroom of the Duncan Company, as aforesaid, for the
purpose of attracting purchasers and being sold. On August 24, 1925, Charles G. Stuart, the
claimant in intervention in this case, bought from the defendant, the Duncan Automobile
Company, one new Nash advanced six four-door coupe, motor No. 218,761, and immediately
took possession of said automobile. At the time Charles G. Stuart bought said automobile he
did not know, nor did he have actual knowledge of the mortgage of Eli L. Martin on said
automobile, dated August 6, 1925, and given as security for the payment of $2,657 on or
before the 5th day of September, 1925, with interest at 8 per cent, according to the terms of
the Duncan Company's promissory note.
Upon the hearing of the order to show cause why a receiver should not be appointed to
take possession of the mortgaged property, one D. P. Piggott, a witness for the plaintiff,
testified in detail as to the course of dealing between said mortgagor and mortgagee with
respect to loans and sale of the mortgaged automobiles. It appears from his testimony that
prior to the execution of the present mortgages Eli L. Martin had on several occasions loaned
to the Duncan Company money on automobiles, in the same manner that the loans were made
on the automobiles in question, and all of the automobiles so mortgaged were placed in
the showroom of the Duncan Company for the purpose of exhibition and sale, in the same
manner as the automobiles in question.
on the automobiles in question, and all of the automobiles so mortgaged were placed in the
showroom of the Duncan Company for the purpose of exhibition and sale, in the same
manner as the automobiles in question. The course of dealing between the parties, as testified
to by said witness, shows a general authority given by the mortgagee to the mortgagor to sell
the automobiles in due course of trade and to apply the proceeds of each sale to the
indebtedness due to the mortgagee and extinguish the mortgage. In the present case the
automobiles were sold, and none of the proceeds from the sale of said automobiles was paid
over to the mortgagee.
The proof shows that the sale of the automobile to Charles G. Stuart was made by W. H.
Duncan, president of the Duncan Company. W. H. Duncan was called as a witness upon the
hearing of the show cause order, and testified that at the time of the execution of the several
mortgages and prior thereto Eli L. Martin had loaned the Duncan Company money on other
automobiles, and that he was during all that time actively engaged as a salesman on
commission in the employ of the Duncan Company. He also testified that the Duncan
Company frequently sold automobiles on which Martin had mortgages, and that Martin was
present when sales of automobiles covered by his mortgages were made. Martin was fully
advised of and familiar with the course of dealing between the Duncan Company and
purchasers of automobiles. He had access to the books of the company, in which entries of
sales were made and the proceeds credited to each of his mortgages.
The intervener, as a witness in his own behalf, testified upon the hearing of the order to
show cause that for some time prior to the purchase by him of the automobile in question he
had known Eli L. Martin as a salesman in the employ of the Duncan Company, and that on
the date he purchased the automobile Martin was seen by him in and about the place of
business of the Duncan Company, and that Martin knew of the sale, and in a conversation
with him subsequent to the sale Martin stated that the automobile so purchased by him was
the only one of that particular model in Reno.
was the only one of that particular model in Reno. He further testified that Martin did not
inform him of the existence of his mortgage on the automobile, dated August 6, 1925, until a
few days before this action in foreclosure was begun, to wit, on November 28, 1925.
We observe that Eli L. Martin did not testify as a witness upon the hearing of the order to
show cause and stood upon the denials contained in his two affidavits filed in the case. As we
understand the record, the sole question presented for decision is: Who has the superior claim
to the automobile sold to the intervenerEli L. Martin, who advanced the money on the
chattel mortgage, which was duly recorded, or the intervener, who was a bona fide purchaser
of the automobile from the Duncan Company, without actual notice of the existence of the
mortgage?
2, 3. It is well settled that, where the mortgagee expressly or impliedly consents to a sale
of the mortgaged property by the mortgagor, he waives his lien, and the purchaser takes the
title free from it, whether or not he knew of the existence of the mortgage, and
notwithstanding his want of knowledge when he makes his purchase that such consent has
been given. 11 C. J. 624. It is held that want of knowledge on the part of the mortgagee that a
sale has been made is immaterial, if he gave the mortgagor general authority to sell the
mortgaged property. Pratt v. Maynard, 116 Mass. 388; Luther v. Lee, 62 Mont. 174, 204 P.
365. The question of consent being one of fact, counsel for the intervener proceed upon the
theory that the evidence shows general authority and consent given by the mortgagee to the
mortgagor to sell the automobile in controversy.
4, 5. We are of the opinion that any conditions placed on such authority or consent were
without force, unless the purchaser (intervener) had notice of them, which he had not in this
instance. Sowards v. Jones, 75 Colo. 25, 223 P. 747. It is argued, however, on behalf of the
mortgagee, that in an action to foreclose a chattel mortgage on an automobile given by an
automobile dealer, evidence that the dealer was permitted to exhibit for sale the mortgaged
automobile, and others covered by similar mortgages, but not showing knowledge by the
mortgagee that sales were made and the cars delivered without payment of the
mortgages on them, is insufficient in law to sustain a ruling that the mortgagee permitted
the mortgagor to sell the automobile, so as to be estopped from claiming it against an
innocent purchaser for value.
sale the mortgaged automobile, and others covered by similar mortgages, but not showing
knowledge by the mortgagee that sales were made and the cars delivered without payment of
the mortgages on them, is insufficient in law to sustain a ruling that the mortgagee permitted
the mortgagor to sell the automobile, so as to be estopped from claiming it against an
innocent purchaser for value. Hardin v. State Bank of Seattle, 119 Wash. 169, 205 P. 382.
The difficulty with this proposition in connection with the evidence in this case is that there is
not only proof of permission to exhibit for sale the mortgaged automobile, but also ample
evidence to show knowledge by the mortgagee that the sale of the automobile to the
intervener was made and the automobile delivered without payment of the mortgage thereon,
and also evidence to show that the mortgagee impliedly consented to the sale of the
mortgaged automobile. We therefore conclude that the trial judge was not justified in
appointing a receiver to take possession of the automobile sold by the mortgagor to the
intervener, Charles G. Stuart.
6, 7. The appeal of the Duncan Automobile Company from the order appointing a receiver
is without merit. It is contended on behalf of said appellant that a duly recorded chattel
mortgage on an automobile forming part of the stock of a retail dealer in such machines, to
secure repayment of money lent to enable him to secure the machine for sale, is void as
against a bona fide purchaser without notice. Boice v. Finance & G. Corp., 127 Va. 563, 102
SE. 591, 10 A. L. R. 654; National City Bank v. Adams, 30 Ga. App. 219, 117 SE. 285.
Undoubtedly the mortgages in controversy are good as between the parties. This being so, the
mortgagor is in no position to claim that the mortgages are void as against bona fide
purchasers for value and without notice. Furthermore, the Duncan Automobile Company does
not challenge the validity of the mortgages, but protests the right of foreclosure solely upon
the ground that it had general authority from the mortgagee to sell the mortgaged automobiles
and pass title thereto. Without expressing or intimating any opinion on the merits of the
case, it is our order that so much of the order appealed from by the intervener as directs
the receiver to take possession of the particularly described automobile claimed by the
intervener is reversed, and the case remanded for such further proceedings as the parties
may be advised.
Without expressing or intimating any opinion on the merits of the case, it is our order that
so much of the order appealed from by the intervener as directs the receiver to take
possession of the particularly described automobile claimed by the intervener is reversed, and
the case remanded for such further proceedings as the parties may be advised.
May 4, 1927.
Per Curiam:
Rehearing denied.
____________
50 Nev. 99, 99 (1927) Bowers v. Charleston Hill Nat. Mines
BOWERS v. CHARLESTON HILL NAT. MINES, INC.
No. 2754
January 6, 1927 251 P. 721.
ON MOTION TO DISMISS
1. Appeal and ErrorDismissal.
Respondent's motion to dismiss appeal for appellant's failure to file transcript within time stipulated
by supreme court rule 2 will be denied, where respondent has not presented or filed certificate of clerk, as
required by rule 3.
2. Exceptions, Bill ofFiling Transcript.
Transcript of testimony and proceedings certified by court reporter, which, under Stats. 1923, c. 97,
sec. 1, could have been filed as bill of exceptions, to become such, no motion for new trial having been
made, must have been filed not later than 20 days after final judgment unless time had been extended.
3. Exceptions, Bill ofTime for Filing.
On appeal from order refusing to modify judgment, time for filing bill of exceptions is within 10 days
after objections and exception to ruling, as prescribed by Stats. 1915, c. 142, sec. 6.
4. Appeal and ErrorDecision Deemed Excepted To.
Order or decision, made in absence of party, is deemed to have been excepted to, in view of civil
practice act, sec. 376, as amended by Stats. 1915, c. 208, sec. 2.
5. Appeal and ErrorRecord.
Papers in connection with decision refusing to modify judgment, certified by clerk, do not become
part of record on appeal, without having been allowed and settled by trial judge or stipulation of
parties, since they do not fall within exceptions of Stats.
stipulation of parties, since they do not fall within exceptions of Stats. 1915, c. 142, sec. 12, 14,
providing that certified documents and exhibits may be made part of record on appeal.
C. J.CYC REFERENCES
Appeal and Error3 C. J. sec. 802, p. 899, n. 76; 4 C. J. sec. 1889, p. 278, n. 70; p. 280, n. 93 (new); sec.
2158, p. 443, n. 55 (new); sec. 2206, p. 472, n. 14 (new); sec. 2420, p. 598, n. 97.
Appeal from Sixth Judicial District Court, Humboldt County; L. O. Hawkins, Judge.
Action by F. R. Bowers against the Charleston Hill National Mines, Inc. From the
judgment, defendant appeals. On motions to dismiss appeal and affirm judgment. Motions
denied, and counsel granted time for filing and serving briefs.
Thos. A. Brandon, for Appellant.
J. W. Dignan, for Respondent.
OPINION
Respondent has submitted a motion, theretofore noticed, to dismiss the appeal for
noncompliance with rule 2 of the rules of the supreme court. The rule reads:
The transcript of the record on appeal shall be filed within 30 days after the appeal has
been perfected and the bill of exceptions, if there be one, has been settled.
Respondent contends that no bill of exceptions was settled by the judge of the lower court,
and that, consequently, the time limited by the rule commenced to run, when the appeal was
perfected, and had expired some 30 days before the transcript of the record on appeal was
filed.
Judgment was rendered in favor of respondent, and appellant made a motion to modify it.
The motion was denied. From the judgment and order of the court refusing to modify it, this
appeal is taken. The appeal was perfected on July 14, 1926, and the transcript of the record
on appeal was filed with the clerk of this court on September 15, 1926.
the record on appeal was filed with the clerk of this court on September 15, 1926. Appellant
insists that there is a bill of exceptions in the record and that the delay in filing the transcript
of the record on appeal was due to the actions of respondent in filing objections in the lower
court to the proposed bill of exceptions. The transcript of the record on appeal before us
consists of a certified copy of the judgment roll, a transcript of the testimony and proceedings
in the lower court certified by the court reporter, certified copies of the notice of motion to
modify judgment, objections to findings and conclusions of law, and motion to amend the
proposed findings, decision on motion to modify judgment, objections to findings, and
conclusions of law, and motion to amend and modify proposed findings, and the appeal
papers. This, in its entirety, was labeled Proposed Bill of Exceptions, and was served on
respondent and filed with the clerk of the district court on the 20th day of July, 1926. It was,
thereafter, on August 21, presented to the judge of the court for settlement. Respondent made
written objections to the settlement of the same as a bill of exceptions, on the ground that the
same had not been prepared, served, and filed within the time allowed by law, and also
moved to strike the whole and certain parts thereof. The objections and motions were
regularly heard by the trial court, and on September 9, 1926, its decision was made denying
the right of the appellant to have any bill of exceptions settled upon the ground that the same
was not prepared, served, and filed within the time allowed by law. Thereafter, on September
15, 1926, as previously stated, appellant filed the same in this court as the record on appeal.
1. Without passing upon the merits of appellant's excuse for the delay, we think that it is
sufficient to say that respondent has not complied with rule 3, and is therefore in no position
to invoke it. He has never presented or filed in this court a certificate of the clerk, as required
by said rule 3. Consequently, the motion to dismiss is denied.
2, 3. Respondent has also moved this court for an order striking from the transcript on
appeal herein all papers, documents, and transcripts therein contained, except the judgment
roll, the clerk's certificate thereto, the notice of appeal, and the bond on appeal, upon the
ground that they are not properly authenticated in the manner provided by law, nor
incorporated in any bill of exceptions, proposed, filed, or settled in the manner or within the
time required by law. This motion must be granted, except as to the decision or order of the
court refusing to modify the judgment. This, certified by the clerk, and the certified copy of
the judgment roll, and the appeal papers constitute the record on appeal, for the reason that
there is no bill of exceptions either on appeal from the judgment or order refusing to modify it
filed within the time required by law. The transcript of the testimony and proceedings
certified by the court reporter which, under the provisions of section 1 of the acts of 1923, pp.
163, 164, could have been filed as a bill of exceptions to have become such, no motion for a
new trial having been made, must have been filed not later than 20 days after final judgment,
unless the time therefor had been enlarged. No extension of time was made. Final judgment
was rendered on May 20, 1926, and the transcript of the testimony and proceedings was not
filed until July 20, 1926. It was therefore filed too late to become a bill of exceptions on
appeal from the judgment. It was also filed too late to become a bill of exceptions on appeal
from the order refusing to modify the judgment. The trial judge correctly held that the time
for filing a bill of exceptions to such an order is prescribed by section 6 of the act of 1915, pp.
164, 165.
Section 1 of this act provides, in part, as follows:
Any party to an action or special proceeding may, after the filing of the complaint, and
before trial, object and except to any ruling, decision, or order made in such action or special
proceeding, and, within ten (10) days after such objection and exception, serve and file a bill
of exceptions thereto.
Section 6 provides:
Bills of exception to any action, decision, ruling, or order of the court, after final
judgment, shall be prepared, served, allowed, and settled in the manner and within the time
specified in section 1 of this act.
True, section 1 of the act of 1915 has since been repealed by the act of 1923, but section 6
is in full force and effect, and the time is fixed by the latter section for filing bills of
exception to any action, decision, ruling, or order of the court, after final judgment, other
than an order determining a motion for a new trial, at 10 days after objection and exception
thereto.
4. An order or decision made in the absence of a party is, by the provisions of section 376
of the civil practice act, as amended by Statutes of 1915, p. 321, deemed to have been
excepted to. The decision refusing to modify the judgment was made June 30, 1926.
Consequently, the reporter's transcript of the testimony and proceedings, if intended to be a
bill of exceptions on appeal from the order refusing to modify the judgment, was not filed
within the time prescribed by said section 6.
5. Counsel for appellant, in his brief filed on the motion to dismiss, contends that, as to
the papers on the record on appeal certified to by the clerk of the trial court, or by the court
reporter, there was nothing therein, nor in the entire record, for the trial court to settle or
approve; that it was presented to the trial court for any criticism which might be made, and to
settle it, if the court desired to do so. It is true that the transcript of the proceedings in the trial
court, duly certified by the court reporter, required no settlement by the trial judge. If it had
been filed in time, it would constitute a bill of exceptions, by virtue of section 1 of said act of
1923. Counsel's view, however, that the papers in connection with the decision, refusing to
modify the judgment certified by the clerk, became a part of the record on appeal, without
having been allowed and settled by the trial judge or by stipulation of the parties, is entirely
erroneous. They do not fall within the exceptions made by sections 12 and 14 of the said
act of 1915, which provide that certified documents and exhibits may be made a part of
the record on appeal.
within the exceptions made by sections 12 and 14 of the said act of 1915, which provide that
certified documents and exhibits may be made a part of the record on appeal. The trial judge
refused to settle the certified copies of the papers mentioned as a bill of exceptions because
not filed within the time required by section 6 of said act of 1915. The ruling was right.
For the reasons given, the reporter's transcript of the testimony and proceedings and the
certified copies of all the papers, in connection with the decision of the trial court refusing to
modify judgment, are hereby ordered struck from the record on appeal.
Respondent contends that there are no errors on the face of the judgment roll and has
moved to affirm the judgment. This motion will be denied for the reason that we are not
inclined to consider the case without further argument by counsel from the standpoint of the
record as it now stands in this court. Counsel for appellant has filed his opening brief on the
merits; respondent has filed no brief on the merits, pending the decision of the court on these
motions. Counsel for respondent may have 15 days after receiving a copy of this decision in
which to file and serve his reply brief, and counsel for appellant 15 days thereafter in which to
file and serve closing brief. Thereupon the case may be submitted or orally argued, as counsel
may desire.
On the Merits
June 16, 1927. 256 P. 1058.
1. Appeal and errorFindings.
It is general rule that finding outside of issues will be disregarded.
2. EvidencePleading Statute.
It is common learning that public statute, such as Stats. 1925, c. 139, providing for
penalty for withholding wages after employee is discharged or laid off, need not be
pleaded or referred to by title or otherwise, it being sufficient that party seeking to rely
on it shall set forth facts bringing case within it, in view of civil practice act, sec. 130
(Rev. Laws, sec. 5072).
3. PleadingJudicial Knowledge.
Facts of which judicial notice is taken need not be stated in pleading.
4. Master and ServantPleading Held Insufficient.
Employee's complaint seeking recovery from employer for services performed as
laborer and miner held not to fairly tender issue under Stats.
services performed as laborer and miner held not to fairly tender issue under Stats.
1925, c. 139, providing penalty for withholding employee's pay, and insufficient to
support judgment for such penalty, since court will not assume that dual relief was
sought unless pleader clearly manifests desire to avail himself of cumulative remedy.
5. PleadingCertainty.
Whatever is alleged in pleading must be alleged with such certainty as to apprise
opposite party of what he is required to meet on trial and court of issue presented.
Appeal and Error4 C. J. sec. 2546, p. 656, n. 19 (new).
Evidence23 C. J. sec. 1916, p. 108, n. 78; sec. 1947, p. 129, n. 96.
Master and Servant39 C. J. sec. 339, p. 233, n. 65.
Pleading31 Cyc. p. 47, n. 37; p. 72, n. 30.
Statutes36 Cyc. p. 1237, n. 46-49.
Action by F. R. Bowers against the Charleston Hill National Mines, Incorporated.
Judgment for plaintiff, and defendant appeals. Modified and affirmed.
Thos. A. Brandon, for Appellant:
Complaint seeks to recover $618.50 for services rendered on express contract. No reference is
made to Stats. 1925, p. 226, allowing penalty for default. Decision shows clearly $300 of
judgment is penalty. Question is whether court had authority to render judgment for penalty,
not only without any allegation therefor, but contrary to allegations. If judgment is not
supported by complaint it will be reversed. Frevert v. Henry, 14 Nev. 191; Marshall v.
Hymers, 16 Nev. 156.
J. W. Dignan, for Respondent:
Complaint alleged employment, wages, nonpayment, demand, and refusal. Legislature has
said when these facts exist laborer may recover penalty not to exceed $300 as liquidated
damages for employer's breach. Stats. 1925, 226.
Objections to sufficiency of complaint are in nature of demurrer. Complaint will be
supported by every legal intendment after judgment on merits.
Appeal is on judgment roll alone. If any error exists it must appear therein. OPINION
OPINION
OPINION
This case was formerly before us on a motion to dismiss the appeal and to strike certain
parts of the record. On the determination of the motion all portions of the record on appeal
except the certified copy of the judgment roll, the notice of appeal, undertaking on appeal,
and order of the trial court denying respondent's motion to modify judgment were struck from
the record. Bowers v. Charleston Hill National Mines, Inc., 50 Nev. 99, 251 P. 721.
Consequently the case is before us on the judgment roll alone.
The complaint alleges that the plaintiff, respondent here, performed work, labor, and
services for defendant at its special instance and request, as a laborer and miner in and upon
the premises of the defendant, for which defendant promised to pay him the sum of $618.40;
that no part of said sum has been paid; that the same is now due, owing, and unpaid; that
more than five days before the commencement of the action plaintiff made demand for the
payment of said sum; and that defendant failed, neglected, and refused to pay the same. The
complaint also alleges that plaintiff has been compelled to employ counsel to commence this
action for the collection of the same, and that $250 is a reasonable sum to be allowed to
plaintiff as counsel fees herein.
Briefly stated, the answer denies the performance of the services alleged except to the
extent of 11 days at the agreed price of $5 per day, making a total sum of $55, which it admits
has not been paid. It is alleged that the sum of $565 included in the sum alleged in the
complaint was for services rendered by plaintiff in extending a tunnel on defendant's property
for one John Gunnori; that defendant was not a party to the contract for services in extending
said tunnel; and that said Gunnori in making the same acted for himself and not as the agent
of the company; that prior to the commencement of this action plaintiff demanded the
payment of said $565 from said Gunnori, who refused to pay the same.
said $565 from said Gunnori, who refused to pay the same. The answer also contains a
counterclaim for the sum of $70 alleged as a reasonable rental for one of the defendant's
buildings situated on said property and occupied by plaintiff and his family during the time
that Gunnori was working for plaintiff in extending said tunnel under the contract; and for the
further sum of $50 as the reasonable value of work and services furnished by defendant at
plaintiff's request and for the use and benefit of plaintiff.
The trial court found that there was a balance due the plaintiff from defendant for work
and labor in the amount of $53.40. It is also found that plaintiff entered into a contract with
Gunnori to extend said tunnel to the premises of the defendant, for which work and labor he
claimed $545, and that defendant herein did not employ plaintiff to do said work and was not
liable for the same.
The court further found from the evidence that defendant failed, neglected, and refused to
pay plaintiff the wages due and owing to him in cash upon demand at the date upon which he
ceased his employment, and that by reason of such failure defendant became and was liable to
plaintiff for the statutory penalty for such failure and refusal in the sum of $10 per day for a
period of 30 days, being the total sum of $300; that the defendant so failed and neglected to
pay plaintiff the wages due and owing to him upon demand being made therefor by plaintiff
on or about the 18th day of March, 1926, for the said sum of $53.40.
Judgment was rendered in favor of plaintiff for the sum of $353.40, together with
plaintiff's costs. Section 1 of the statute under which that part of the judgment for $300 was
given reads:
Whenever an employer of labor shall hereafter discharge or lay off his or its employees
without first paying them the amount of any wages or salary then due them, in cash, lawful
money of the United States, or its equivalent, or shall fail, or refuse on demand, to pay them
in like money, or its equivalent, the amount of any wages or salary at the time the same
becomes due and owing to them under their contract of employment, whether employed
by the hour, day, week or month, each of his or its employees may charge and collect
wages in the sum agreed upon in the contract of employment for each day his employer is
in default, until he is paid in full, without rendering any service therefor; provided,
however, he shall cease to draw such wages or salary thirty days after such default."
or salary at the time the same becomes due and owing to them under their contract of
employment, whether employed by the hour, day, week or month, each of his or its
employees may charge and collect wages in the sum agreed upon in the contract of
employment for each day his employer is in default, until he is paid in full, without rendering
any service therefor; provided, however, he shall cease to draw such wages or salary thirty
days after such default. Stats. 1925, p. 226.
1. Appellant attacks that portion of the judgment rendered by virtue of the foregoing
statute. It is contended that, as the statute of 1925 was not pleaded or referred to or such a
state of facts set forth in the complaint as to indicate clearly that the respondent intended
asking relief under the provisions of the statute, that part of the judgment is outside of issues
made by the pleadings, and therefore against law. It is a general rule that findings outside of
the issues will be disregarded. This rule has been repeatedly stated by this court. Marshall v.
Golden Fleece M. Co., 16 Nev. 156; Douglas Milling & Power Co. v. Rickey, 47 Nev. 148,
217 P. 590; Schultz v. Mexican Dam & Ditch Co., 47 Nev. 453, 224 P. 804.
Respondent contends that a pleading of or reference to the statute is unnecessary. He
insists that, as the complaint alleges the relation of employer and employee, that work, labor,
and services were performed as a laborer and miner by the employee for the employer at its
special instance and request; that a certain sum was due, owing and unpaid, that a demand
was made for payment of the same and that the employer failed to pay the same, these
allegations fairly include a statement of a claim under the act of 1925, and nothing more was
required to enable the court to award the wages authorized by the statute in addition to the
amount found due under the contract of employment.
2. The statute is a public statute, and it is common learning that a public statute need not
be pleaded or referred to by title or otherwise. The rule is stated in 36 Cyc. p. 1237, as
follows: "When a public statute is applicable to a case, it is sufficient that the party who
seeks to rely upon the statute shall set forth the facts which bring the case within it and it
is not necessary to recite the title of the act or otherwise designate or even refer to it."
When a public statute is applicable to a case, it is sufficient that the party who seeks to
rely upon the statute shall set forth the facts which bring the case within it and it is not
necessary to recite the title of the act or otherwise designate or even refer to it.
It is true that some courts have declared exceptions to this rule as to indictments for
offenses created by statute, actions for penalties under a statute giving a new or cumulative
remedy, or one differing from that given by the common law. 21 R. C. L. 444. But the great
weight of modern authority is not in accord with these excepted cases. Speaking on the
subject Mr. Bliss in his work on code pleading says:
The rule, though a general, was not a universal one in common-law pleading, for we find
certain declarations charging that the act complained of was contrary to the form of the statute
in such cases made and provided, with the averment that by virtue of the statute an action has
accrued, or words equivalent. The rule as applied to public statutes was that ordinarily, and
where the statute was remedial, although the liability was created by it, it sufficed to state
facts which brought the party within its provisions; but if it was penal, it must be counted
oni. e., expressly referred to as above. The rule was stated in New York shortly before the
adoption of the new system. The action was upon a replevin bond taken under the statute, and
the declaration was objected to as not averring that it was taken in pursuance of the statute.
The objection was overruled, the court giving the general rule now being considered, and
holding it to be unnecessary to plead a public statute, but adding that, in criminal
prosecutions for an offense created by an act of the legislature, a reference to the statute is
required for the purpose of informing the defendant distinctly of the nature and character of
the offense; and so in penal actions founded on a statute, for substantially the same reason.'
Shaw v. Tobias, Const. (3 N. Y.) 188. These were actions of debt on statute, and the rule
requiring a reference to the statute as above, although a matter of form, was always enforced.
It is not believed that under the code there is any more necessity for referring to a public
statute in penal than in other actions.
not believed that under the code there is any more necessity for referring to a public statute in
penal than in other actions. All mere forms are abolished, and this was a formality merely.
Also, the court takes judicial notice of public statutes, and the rule is universal that matters of
which judicial notice is taken need not be stated. Bliss on Code Pleading, sec. 181, p. 229.
The matter is well reviewed in State v. Owsley, 17 Mont. 94, 42 P. 105. The court said:
* * * It is still urged that, this being an action to recover a statutory penalty, the complaint
is fatally defective, because it nowhere refers to the statute violated by title, page, or section,
nor does it conclude, against the form of the statute,' nor does it allege that defendants have
violated any statute. Under old systems of pleading, and authorities which are principally to
be found in states or courts where reformed code pleading does not prevail, or did not when
the decisions were made, an action to recover a penalty or forfeiture should conclude, contra
forman statuti,' and should, perhaps, specify the statute affording the right and the remedy.
Reed v. Northfield [13 Pick. (Mass.) 94] 23 Am. Dec. 662. But these technical and nice
distinctions are, however, now rapidly ceasing to be of interest except as matter of legal
history. The great changes recently effected in this country and in England have laid the ax to
the root of the old fabric of the common law, as far as its procedure is concerned; and
wherever the modern and simple mode of pleading has been adopted, actions on statutes are
to be brought, no doubt, as in other instances, by a concise statement of the facts on which the
alleged claim is sought to be maintained.' Sedg. Ct. & Const. Law, p. 90. In this state there is
but one form of civil action, and the code simply declares that the complaint shall contain,
among other things, a statement of the facts constituting the cause of action, in ordinary and
concise language.'
Our civil practice act in establishing general rules of pleading provides that:
In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer
to such statute by its title and the day of its passage, and the court shall thereupon take
judicial notice thereof."
therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage,
and the court shall thereupon take judicial notice thereof. Section 130, Civ. Prac. Act (Rev.
Laws, 5072).
3. No reference whatever is made to public statutes of any character. A statement of the
facts constituting the cause of action or defense in ordinary and concise language is required.
We think that, as to public statutes, the plain implication from the practice act, including the
exception above stated, is that it was enacted with reference to the universal rule that facts of
which judicial notice is taken need not be stated in the pleading.
4. The complaint, however, does not fairly tender an issue on the statute and is insufficient
for this reason. The statute unquestionably gives a cumulative remedy to labor employees
unknown to the common law. It provides that an employee may charge and collect wages for
30 days after the default of the employer in the sum agreed upon in the contract of
employment for each day his employer is in default until he is paid in full, without rendering
any service therefor. But there is nothing in the allegation of the complaint, either by
reference to the statute or otherwise, except a demand for payment, to inform the court or the
appellant that the pleader intended a recovery under the statute in addition to the recovery of
compensation for services actually rendered. How could the court know, or the appellants be
apprised, when the pleader has merely stated facts for his common-law cause of action for the
debt, that the pleader intended these allegations in a double sense and the appellant be
prepared to defend against a claim for statutory wages? Unless the pleader clearly manifests
in his complaint a desire to avail himself of the cumulative remedy, the court ought not, as
was evidently done in this case, to assume that dual relief is sought.
The statute says the employee may charge and collect. But he may not desire to do so.
He may be satisfied with the recovery of the original debt. True, a previous demand of
payment is alleged in the complaint, and the allegation of such a demand in unnecessary
in a complaint for work, labor, and services.
previous demand of payment is alleged in the complaint, and the allegation of such a demand
in unnecessary in a complaint for work, labor, and services. However, it is common practice
to allege a demand. Any inference from this allegation in the complaint favorable to the
intention of the pleader to invoke the statutory remedy is entirely negatived by another
allegation in the complaint and the prayer thereof. It alleges that the sum of $618.40 is due,
owing, and unpaid for work, labor and services performed, and in the prayer this is the exact
sum demanded, together with counsel fees and costs and disbursements.
5. It is a well-recognized rule of pleading that whatever is alleged in pleading must be
alleged with sufficient certainty to apprise the opposite party of what he is required to meet
on the trial, and the court of the issue presented.
As stated, we do not think under our code a reference in pleading to a public statute is
necessary, but where, as here, the statute gives a cumulative remedy unknown to the common
law, there should be such a statement of facts as to leave no doubt that it was intended to
bring the case within the statute. Otherwise it will be presumed and treated as a common-law
action. Montgomery v. Edwards, 45 Vt. 75.
As that part of the judgment based on the finding for $300 for statutory wages is outside of
the issues, the case is remanded, with directions to the lower court to strike from the
judgment the sum of $300.
The judgment as so modified is affirmed.
____________
50 Nev. 113, 113 (1927) Dunphy v. McNamara
DUNPHY v. McNAMARA
No. 2757
February 1, 1927. 252 P. 943.
1. Appeal and ErrorEquity Preserves Status Quo.
Court of equity has ample authority, in proper case, to preserve trust property in status quo as nearly
as may be until final determination of litigation concerning it.
2. Appeal and ErrorOrder Appointing Receiver Not Vacated by Filing of Appeal Bond.
Where it clearly appeared that it was necessary that property involved be preserved in status quo as
nearly as possible, pending litigation concerning it, order appointing temporary trustee or receiver
pendente lite was not vacated or superseded by giving of statutory undertaking, on appeal from such
order, in sum of $300, as required by practice act, sec. 404 (Rev. Laws, 5346), in view of section 413
(section 5355).
3. ReceiversPowers of Foreign Receiver Cannot Be Questioned in Collateral Proceeding.
Question of extent of powers of foreign receiver is not one of jurisdiction, and therefore, in collateral
proceeding, petitioners could not have order appointing resident receiver pendente lite vacated and
property and money turned over to foreign receiver, pending litigation concerning it.
Appeal and Error3 C. J. sec. 1385, p. 1268, n. 23; sec. 1457, p. 1326, n. 11.
Receivers34 Cyc. p. 484, n. 50.
Original proceeding in prohibition by James C. Dunphy and others for an order citing Hon.
J. M. McNamara, Judge of the District Court of the Fourth Judicial District of Nevada for
Elko County, and others, to show cause why they should not be prohibited, pending appeal
from certain order, from doing any acts embraced in said order, and to show cause why
certain property should not be turned over to a foreign receiver. Rule discharged and
proceeding dismissed. (Coleman, J., dissenting.)
Griswold & Reinhart and Charles F. Hanlon, J. W. Dorsey and Thomas Beedy & Presley,
for Petitioners:
Prohibition is allowed where appeal does not give adequate or speedy remedy. Fletcher v.
Court, 51 Cal. App. 158. Supersedeas is allowed to stay execution where none is imposed by
appeal or bond.
where none is imposed by appeal or bond. Craig v. Stansbury, 37 Cal. App. 671. Appellant
should be protected by supersedeas whether or not statutes allow stay of proceedings. It issues
when necessary to preserve status quo. S. P. Co. v. Court, 167 Cal. 252.
It is not against interest of petitioner or public policy to permit petitioner to manage
property pending appeal. O'Donnell v. Court, 40 Nev. 438.
By stopping act of guardian of incompetent person his property might be dissipated by
designing persons, but more grievous consequences might follow erroneous adjudication of
guardianship if no appeal were allowed. Coburn v. Hynes, 161 Cal. 688.
California Supreme Court in Craig v. Stansbury, supra, on supersedeas, not only stayed
proceedings by Craig pending appeal, but quashed execution sale of appellant, although third
party was purchaser.
Rev. Laws, 5855 (413 Civ. Pr.), provides that in all cases not provided for in secs.
404-409, perfecting of appeal by giving $300 bond stays all proceedings. O'Donnell v. Court,
supra.
Dunphy trustees on coming to Nevada can take charge of property and administer it
without further order of court in Nevada. Fox v. Tay, 89 Cal. 339.
In case of conflicting appointments, receiver first appointed will have control, and second
must surrender assets to him. Beach, Receivers, sec. 232.
G. C. Clough, M. B. Badt, and J. M. Dysart, for Respondents:
Petitioners' authorities holding mere filing of appeal and cost bond suspends operation of
judgment involve statutes different from ours, where statutory provisions were not recited, or
where cases specifically held they did not come within exceptions contained in statutes, and
merely hold that in certain specified cases judgment is not stayed unless stay bond is filed.
Jacobs v. Court, 65 P. 826, holds prohibition will not lie since statutes give right of appeal.
Stay bond was given.
Before amendment of 1913 our statute was similar to California's, but delivery and
execution of stay bond is now required.
Under our practice appellant can appeal and move to vacate, for entirely different reasons.
If appeal operates as vacation or suspension, such course would not be proper, but that
legislature intended contrary is evident from sections of practice act regulating method of
staying execution after appeal. Rev. Laws, 5347 et seq. (prior to amendments of 1913 and
1915, 3 Rev. Laws, p. 3346); Rogers v. Hatch, 8 Nev. 35.
Operation of order for delivery of real and personal property, restraining persons from
interfering, authorizing receiver to sell live stock, pay taxes, etc., may not be stayed except
upon filing bond therefor. Silver Peak v. Court, 33 Nev. 97.
Order granting temporary injunction is not stayed by filing cost bond on appeal therefrom.
State ex rel. Reclamation Co. v. Ducker, 35 Nev. 214; Haynes, New Trial and Appeal (1st
ed.) sec. 227.
Petitioners' remedy is by appeal. Prohibition will not lie. If order is subject to review on
appeal or even certiorari it cannot be reviewed on prohibition or mandate. Low v. Mining
Co., 2 Nev. 75; Silver Peak case, supra; Walcott v. Wells, 21 Nev. 50. Prohibition will not lie
unless application is made in lower court for relief. Pro forma application to vacate, made ex
parte, without notice, in absence of opposite party is vain.
OPINION
By the Court, Sanders, C.J.:
In July, 1926, X. Rodwell Meyer, individually and as executor of the last will and
testament of his deceased wife, Jennie C. D. Meyer, filed his bill of complaint in the court
below against Mary D. Flood, James C. Dunphy, Viola C. C. P. Burnett, William Wesley
Burnett, her husband, William Wesley Burnett, Jr., and others, praying the appointment of a
trustee to fill a vacancy in the trusts created by the last will and testament of William Dunphy,
deceased, made by the death of said Jennie C. D. Meyer; also praying for the appointment
of a temporary trustee or receiver pendente lite.
William Dunphy, deceased, made by the death of said Jennie C. D. Meyer; also praying for
the appointment of a temporary trustee or receiver pendente lite. Upon motion, supported by
the complaint and the affidavit of the plaintiff Meyer showing an emergency, the court made
an order citing defendants to show cause why such trustee or receiver pendente lite should not
be appointed.
By order of the court filed on September 3, 1926, all the property described in the
complaint was put into the hands of George Russell, Jr., as temporary trustee, with directions
to protect and preserve the property pending suit. The property of the William Dunphy trust
estate in Nevada comprises 80,000 acres of agricultural and range lands in the counties of
Elko, Eureka, and Lander, and about 6,000 head of stock cattle, including 1,000 head of beef
cattle and feeders.
On September 16, 1926, two of the defendants in the suit, namely, James C. Dunphy and
William Wesley Burnett, Jr., after the appointment of such receiver, entered their appearance
and gave notice of appeal to this court from said order, and on said date perfected their appeal
by giving an undertaking on appeal in the sum of $300, as required by section 404 of the civil
practice act (section 5346, Rev. Laws of Nevada).
Pending appeal, the appellants were cited to show cause before the court why they should
not be adjudged guilty of contempt of court for their alleged violation of said order of
appointment of a temporary trustee with reference to their interference with the trustee in the
marketing and sale of a large number of the beef cattle in his possession, as such receiver.
While said order to show cause was pending, the appellants made application to the court
by way of a formal motion, supported by affidavits and the records and files in the case, for
an order directing the trustee or receiver to desist from doing any of the things specified in the
order of his appointment and to relinquish the possession of all the property and money in his
hands to one Louis S. Beedy, who, on the 1st day of September, 1926, was appointed by
order of the superior court of the State of California, in and for the city and county of San
Francisco, receiver of all the real and personal property of the William Dunphy trust estate
in California and Nevada, in an action wherein James C.
appointed by order of the superior court of the State of California, in and for the city and
county of San Francisco, receiver of all the real and personal property of the William Dunphy
trust estate in California and Nevada, in an action wherein James C. Dunphy, Mary D. Flood,
and Viola C. C. P. Burnett were plaintiffs and William Wesley Burnett, Jr., was defendant,
and in which the plaintiffs, by their bill of complaint, sought to be nominated trustees of the
trusts declared in the last will of William Dunphy, deceased, to fill the vacancies created by
the death of said Jennie C. D. Meyer, formerly surviving trustee of those trusts. At said time
and place the appellants also moved the court for an order of dismissal of the proceeding to
have appellants adjudged guilty of contempt of court, upon the ground that the court was
without jurisdiction to appoint a trustee or receiver of the William Dunphy trust estate for any
purpose because of the orders of said superior court of California appointing James C.
Dunphy, Mary D. Flood, and Viola C. C. P. Burnett trustees and Louis S. Beedy receiver of
the William Dunphy trust estate in both California and Nevada. The motion was denied, and
an exception was allowed to the ruling.
Thereupon the appellants, together with their copetitioners herein, made application to this
court for an order citing respondents to show cause before this court, on a day certain, why
they should not be prohibited, pending the appeal from the order appointing George Russell,
Jr., receiver pendente lite, from doing any of the acts and things embraced in said order until
the further order of this court, and to show cause why all the property and money in the hands
of said receiver or in the custody and under the control of the court should not be turned over
to Louis S. Beedy, receiver, pending the appeal.
Upon consideration of the averments contained in the petition, the respondents were cited
to show cause why the prayer of said petition should not be granted. The matter came on for
hearing upon the petition and the respondents' demurrer and answer thereto.
matter came on for hearing upon the petition and the respondents' demurrer and answer
thereto. After a full hearing upon the pleadings, we made an order, on the 15th day of
November, 1926, dismissing the proceeding without filing an opinion. We shall now proceed,
as required by law, to set forth our reasons for the dismissal of the proceeding, which can best
be done by answering the contentions of counsel for petitioners.
1. In view of the order of dismissal of the proceeding, it is unnecessary for us to enter
upon a discussion of the questions raised in argument with respect to the authority of this
court in the exercise of its original jurisdiction to supersede an order appointing a receiver
pendente lite or of what the limits of its powers to make interlocutory orders pending appeal
may be; for, however that may be, we are of opinion that the court of equity has ample
authority in a proper case to preserve trust property in status quo as nearly as may be until the
final determination of the litigation concerning it. 3 Corpus Juris, 1268; 34 Cyc. 49.
2. It is contended, however, that, conceding the inherent power of the court of equity to
appoint a receiver pendente lite to preserve trust property pending appeal, the perfecting of an
appeal by giving the undertaking of $300, as required by section 404 of the practice act
(section 5346, Rev. Laws), suspends an order appointing a receiver pendente lite, and that
appellants are entitled to the possession of the trust property involved, pending the appeal.
This contention is predicated entirely upon counsels' construction or application of the
provisions contained in section 413 of the practice act (section 5355, Rev. Laws) and statutes
in pari materia.
Section 413 provides as follows:
In cases not provided for in sections 404, 405, 408, and 409, the perfecting of an appeal
by giving the undertaking, and the justification of the sureties thereon, if required, or making
the deposit mentioned in section 404, shall stay proceedings in the court below upon the
judgment or order appealed from except that where it directs the sale of perishable property
the court below may order the property to be sold, and the proceeds thereof to be
deposited to abide the judgment of the appellate court."
directs the sale of perishable property the court below may order the property to be sold, and
the proceeds thereof to be deposited to abide the judgment of the appellate court.
A summary of the sections referred to in section 413 and of other statutes with reference to
appeals will suffice to make counsels' contentions clear.
Section 404 provides that to render an appeal effectual for any purpose, in any case, an
undertaking shall be executed to the effect that the appellant will pay all damages and costs
which may be awarded against him on the appeal, not exceeding $300.
Section 405, as amended by Statutes 1915, page 219, relates to an appeal from a judgment
or order directing the payment of money.
Section 408 relates to an appeal from a judgment or order directing a conveyance.
Section 409 relates to an appeal from a judgment or order directing the sale or delivery of
possession of real property.
Section 407 of the practice act, not referred to in section 413, supra, as amended by the
Statutes of 1913, page 301, relates to an appeal from a judgment or order directing the
assignment or delivery of documents or personal property.
Sections 405, 407, 408, and 409 provide for special undertakings to stay the judgment or
order, pending appeal.
Counsel for petitioners insist that the appeal from the order appointing a receiver pendente
lite is within the limitation contained in section 413, and therefore the perfecting of the appeal
from the order by giving the undertaking for $300 under the provisions of section 404, stayed
proceedings under said order, and that petitioners are entitled to the relief demanded in their
petition.
In support of this contention, we are cited to a number of cases from California. Also
particularly to the case of O'Donnell v. District Court, 40 Nev. 428, 165 P. 759, following the
California cases cited therein, to the point that an appeal from an order appointing a
guardian for an incompetent by giving the statutory undertaking for $300 suspends the
order of appointment of the guardian pending the appeal therefrom.
that an appeal from an order appointing a guardian for an incompetent by giving the statutory
undertaking for $300 suspends the order of appointment of the guardian pending the appeal
therefrom. We do not concede that a receiver pendente lite is in the same category as a
guardian, and for present purposes we hold that the case of O'Donnell v. District Court and
the California cases cited therein are not in point.
Further, in regard to the California cases, we observe that 1897 (Cal. Stat. 1897, p. 56),
section 943 of the code of civil procedure of California was amended by providing in terms
that an order appointing a receiver cannot be stayed except by filing a special bond, while the
rule with reference to guardians was left unchanged. Coburn v. Hynes, 161 Cal. 685, 120 P.
26. We note that, prior to its amendment, section 943 was practically the same as section 407
of our practice act. Long prior to the amendment the Supreme Court of California, in Matter
of Real Estate Associates, 58 Cal. 356, held that the functions of a receiver were not
suspended by an undertaking on appeal, given under section 941 of the code of civil
procedure, which is the same as section 404 of our practice act, in requiring an undertaking,
on appeal in the sum of $300, and no more. Since our legislature has not seen fit to amend
section 405 by providing for the suspension of an order appointing a receiver, pending an
appeal, by giving a proper undertaking, we think the rule laid down in Matter of Real Estate
Associates, supra, is applicable to the case here, and that the giving of an undertaking on
appeal for $300 did not stay proceedings in the court below upon the order appealed from.
Section 413 of our practice act is substantially the same as section 4817 of the Revised
Codes of Idaho. In Morbeck v. Bradford-Kennedy Co., 18 Idaho, 458, 110 P. 261, it is held
that the giving of a $300 bond did not suspend or supersede the appointment of a receiver.
We note that the court in its opinion has this to say concerning the California rule: "Section
949 of the code of civil procedure of California was substantially the same as said section
4S17 of our Rev. Codes.
Section 949 of the code of civil procedure of California was substantially the same as said
section 4817 of our Rev. Codes. In the Matter of the Real Estate Associates, 58 Cal. 356,
where it was contended that all actions in or under insolvency proceedings were stayed by the
appeal, and therefore the receiver had no right to prosecute any suit as such receiver, and that
the giving of a $300 appeal bond stayed all proceedings pending the appeal, the court decided
against that contention, and held that the functions of the receiver were not suspended during
the appeal. The legislature of California has since the date of said decision amended section
943, C. C. P., so as to provide for the suspension of an order appointing a receiver, pending
an appeal, by giving a proper undertaking on appeal. However, we have no such provision in
our statutes. We think the rule laid down in the above-cited case is applicable to the case here,
and that the court did not err in holding that the giving of said $300 bond did not suspend or
supersede the appointment of a receiver. From the record in the case it clearly appears that it
is necessary that the property should be preserved in status quo as nearly as may be pending
the appeal, in order to protect the interest of the parties.
So, in this proceeding, it clearly appears that it is necessary that the property involved
should be preserved in status quo as nearly as may be, pending the litigation concerning it,
and both upon principles of equity and upon the authorities construing statutes substantially
the same as ours we hold that the order appointing George Russell, Jr., temporary trustee or
receiver pendente lite was not vacated or superseded by the giving of the statutory
undertaking on appeal in the sum of $300. See 3 C. J. 1285, note 31.
3. It is contended on behalf of petitioners that the respondent court was without
jurisdiction in the premises to appoint a trustee or receiver of the William Dunphy trust estate
in Nevada for any purpose, because, at the time George Russell, Jr., was appointed receiver
pendente lite, the property involved was in the custody and under the control of Louis S.
pendente lite, the property involved was in the custody and under the control of Louis S.
Beedy, receiver for the superior court of California, in and for the city and county of San
Francisco. This contention is predicated upon a misconception of the effect of the
appointment of receivers of property beyond the territorial limits of the jurisdiction of the
appointing court.
The rule, says Cyc., broadly stated, may be said to be that a receiver's power is only
coextensive with that of the court which gives him his character, and cannot be asserted as a
matter of right beyond the territorial jurisdiction of such court. 34 Cyc. 484; 23 R. C. L. 140.
The authorities, however, are not harmonious as to the extent of the application of the rule.
There are two lines of cases upon the subject. The leading case, Booth v. Clark, 17 How. 322,
15 L. Ed. 164, denies all extraterritorial recognition to a chancery receiver, whatever may be
his authority under the decree or order of the appointing court, either as of right or comity,
and many other cases have so applied the rule. On the other hand, there are many cases
holding that foreign receivers are permitted to assert and protect their rights under their
appointments, as a matter of comity, without adhering to the strict rule denying extraterritorial
recognition to receivers as such. 34 Cyc. 488, note 57; 23 R. C. L. 140, et seq.
With reference to the divergent line of authorities, supra, it is said in Wright v. Phillips, 60
Cal. App. 578, 213 P. 288:
The proposition that a receiver appointed by a court of a particular state can have no
authority to exercise his powers beyond the limits of the jurisdiction of the court appointing
him, appears plainly enough from the bare statement of the question.
Receivers appointed under a jurisdiction other than that of the forum may be permitted to
sue in a stranger state as a matter of comity only. That this privilege of comity will be
extended, wherever the rights of local or domestic creditors are not prejudiced, is now the
general rule in the United States, notwithstanding that earlier decisions, notably that of
Booth v. Clark, 17 How. 322, 15 L. Ed. 164.
decisions, notably that of Booth v. Clark, 17 How. 322, 15 L. Ed. 164. See, also, Rose's U. S.
Notes, tended in their holding the other way. See High on Receivers (4th ed.), sec. 47; Smith
on Receivership (2d ed.), 165; 23 R. C. L. 142; 5 Ann. Cas. 570. Each state, of course,
establishes its own policy on the subject.
This state has not as yet, either by statute or by adjudication, established any rule or policy
upon the subject. Suffice it to say that the question of the extent of the powers of a foreign
receiver is not one of jurisdiction. Consequently, in this collateral and incidental proceeding,
petitioners are not in position to invoke the active interposition of this court to establish a rule
or policy that would assist them in having the order appointing George Russell, Jr., receiver
pendente lite vacated and the property and money in his hands turned over to Louis S. Beedy,
the foreign receiver, pending the litigation concerning it.
Entertaining these views, our preliminary rule for an order to show cause was discharged
and the proceeding was dismissed.
Ducker, J.: I concur.
Coleman, J., dissenting:
I am convinced that it is very desirable that we should have a law requiring one who
appeals from an order appointing a receiver to give a stay bond in addition to the $300 bond. I
am convinced of this because of the presumption in favor of the correctness of the order of
appointment. But, however desirable it may be that one who appeals from an order appointing
a receiver should give a stay bond, I do not see how it can be required unless there is some
authorization in law therefor, and I fail to find any.
As pointed out in the prevailing opinion, section 413 of the practice act expressly provides
that the taking of an appeal and the giving of the $300 bond shall operate as a stay in all
instances except as provided in certain enumerated sections of the practice act. The only
section of the practice act which counsel for respondent contend provides for a bond other
than in the sum of $300 is section 407, as amended by section 4, c.
contend provides for a bond other than in the sum of $300 is section 407, as amended by
section 4, c. 212, Stats. 1913, p. 300 (3 Rev. Laws, p. 3346, sec. 5349), and a casual reading
of that shows that it does not apply to appeals from an order appointing a receiver, but to an
order directing that documents or personal property be assigned or delivered to one whose
appointment and qualification as a receiver are neither denied nor questioned, which is an
entirely different situation from the one here presented.
But the court does not base its ruling upon the section of our civil practice act relied upon
by counsel, but upon an Idaho case which accepts as its authority a California decision. The
California decision cites certain provisions of its code of civil procedure to support its
conclusion which are not incorporated in the Idaho and the Nevada acts.
I decline to accept the Idaho opinion as an authority in preference to the plain provision of
our statute, which seems to be mandatory, particularly in view of the opinion in O'Donnell v.
District Court, 40 Nev. 428, 165 P. 759, which, though not growing out of an appeal from an
order appointing a receiver, in my opinion, is based upon a state of facts to which the same
reasoning applies as in the instant matter.
____________
50 Nev. 125, 125 (1927) In Re Calvo
In Re CALVO
No. 2747
February 21, 1927. 253 P. 671.
1. CourtsState Can Regulate Grazing on Public Domain Under Police Power.
Supreme Court of Nevada is bound by the decisions of the Supreme Court of the United States that a
state has power to regulate grazing on the public domain under the police power, notwithstanding Const.
U. S. Amend. 14, providing that state cannot deprive one of his property without due process of law or
abridge rights of citizens of United States.
2. Constitutional LawState Can Regulate Watering of Live Stock on Public Domain Under
Police Power.
Stats. 1925, c. 201, providing that no person, without the right to do so shall, on two or more separate
days during any season, water more than 50 head of live stock at the watering place at which another
shall have a subsisting right to water 50 head of live stock, or within three miles of such place, with intent
to graze the live stock on the portion of the public range readily accessible, held a valid exercise of the
police power, and not contrary to U. S. Const. Amend. 14, as depriving persons affected of property
without due process of law, or abridging rights of citizens of United States.
3. Constitutional LawImaginary Case.
Supreme court will not consider an imaginary case, not in accord with facts presented, in determining
the validity of Stats. 1925, c. 201, regulating use of watering place of another with intent to graze the live
stock on the portion of the public range readily accessible, as authorizing taking of property without due
process of law, contrary to Const. U. S. Amend. 14, since matter is moot question.
4. Public LandsFederal and State Acts.
Stats. 1925, c. 201, regulating use of watering place of another with intent to graze the live stock so
watered on portion of the public range readily accessible, held not invalid as conflicting with act Cong.
Feb. 25, 1885 (U. S. Comp. St. sec. 991 [21], 4997-5002), which was designed to prevent the illegal
fencing in of public lands.
5. Public LandsMonopolies.
Stats. 1925, c. 201, forbidding watering more than 50 head of live stock on two or more days during
any season at watering place of another, with intent to graze the live stock on the portion of the public
range readily accessible, held not invalid as granting a monopoly.
6. Public LandsEnabling Act.
Stats. 1925, c. 201, prohibiting watering live stock at another's watering place, with intent to graze the
live stock on the portion of the public range readily accessible, held not invalid as violating enabling act,
by which people of state disclaimed all right and title to unappropriated public lands within state.
50 Nev. 125, 126 (1927) In Re Calvo
7. Public LandsFederal and State Acts.
Stats. 1925, c. 201, regulating watering of live stock at another's watering place, with intent to graze
live stock on public range, is inoperative, in so far as federal government conveys title to public domain,
or otherwise exercises control over it.
8. ProhibitionIndefiniteness of Stock-Watering Statute.
Indefiniteness of Stats. 1925, c. 201, regulating use of watering places of another, with intent to graze
live stock on the portion of the public range readily accessible, as precluding criminal prosecution, cannot
be properly raised on application for prohibition to prevent trial for violation of statute.
9. Criminal LawIndefiniteness of Stock-Watering Statute.
Stats. 1925, c. 201, regulating watering of live stock at another's watering place, with intent to graze
the live stock on the portion of the public range readily accessible, held not so indefinite as to preclude
prosecution for violation thereof, in view of sections 1, 2, and 3, pertaining to acquisition of right to
water live stock, and section 4, being confined to definition of offense and fixing of penalty.
10. StatutesTitle.
Const. art. 4, sec. 17, providing that each law enacted by the legislature shall embrace but one
subject and matters properly connected therewith, which shall be briefly expressed in the title, must be
given a liberal construction.
11. StatutesTitle.
Title of Stats. 1925, c. 201, to wit, An act relating to the use of water for watering live stock, the
acquisition and proof of the right to such use, making certain actions a misdemeanor and prescribing a
penalty therefor, held to cover provision regulating use of watering places, with intent to graze live stock
on public range, within Const. art. 4, sec. 17.
12. Public LandsStatute Regulating Watering Live Stock on Public Range Held Not Invalid
as Making Mere Intention Criminal.
Stats. 1925, c. 201, makes both watering of live stock at watering place of another, and intention to
graze the live stock on the portion of the public range readily accessible, elements of offense, and hence
is not invalid as making mere intention criminal.
13. StatutesStatute Regulating Use of Watering Places, With Intent to Graze Live Stock on
Public Range, Held Not Invalid as Not General.
Stats. 1925, c. 201, regulating watering of live stock at watering place of another, with intent to graze
live stock on portion of public range readily accessible, held not invalid as violative of Const. art. 4,
sec. 21, requiring laws to be general, where general law can be made applicable.
14. Justices of the PeaceStatute Penalizing Use of Watering Places, with Intent to Graze
Live Stock on Public Range Held Not to Give Justices of the Peace Jurisdiction of
Cases Involving Title to Real Estate.
Stats. 1925, c. 201, penalizing watering of live stock at another's watering place, with intent
to graze the live stock on the portion of the public range readily accessible, held not
invalid as giving justices of the peace jurisdiction of cases involving the title to real
estate.
50 Nev. 125, 127 (1927) In Re Calvo
another's watering place, with intent to graze the live stock on the portion of the public range readily
accessible, held not invalid as giving justices of the peace jurisdiction of cases involving the title to real
estate.
Constitutional Law12 C. J. sec. 219, p. 787, n. 80, 81; sec. 440, p. 928, n. 12, 14; sec. 840, p. 1122, n. 73,
74, 93 (new); sec. 1098, p. 1285, n. 71 (new).
Courts15 C. J. sec 318, p. 931, n. 82; p. 932, n. 84; p. 933, n. 85.
Criminal Law16 C. J. sec. 28, p. 68, n. 8, 14, 15 (new).
Justices of the Peace35 C. J. sec. 66, p. 499, n. 49; p. 500, n. 52.
Monopolies41 C. J. sec. 13, p. 86, n. 58.
Prohibition32 Cyc. p. 629, n. 1; p. 630, n. 2.
Public Lands32 Cyc. p. 794, n. 2; p. 796, n. 38 (new).
Statutes36 Cyc. p. 986, n. 70; p. 991, n. 87; p. 1018, n. 79; p. 1022, n. 96, 1; p. 1023, n. 2; p. 1035, n. 52;
p. 1047, n. 12.
Original Application by Nicolas Calvo for a writ of prohibition to be directed to a justice
of the peace. Proceedings dismissed, and alternative writ discharged.
McCarran & Mashburn, for Petitioner:
Hetch v. Harrison, 40 P. 306; Martin v. Platte Valley Sheep Co., 76 P. 571; Buford v.
Houtz, 33 L. Ed. 618; State v. Horn, 152 P. 276; Omaechevarria v. Idaho, 62 L. Ed. 269;
Hazas v. State, 219 P. 229; Hill v. Winkler, 151 P. 1014; Bacon v. Walker, 51 L. Ed. 204;
and State v. Coppinger, 115 P. 732, uphold statutes which inhibit grazing by certain class of
stock within certain limits on public land on ground that under police power states have
power to so legislate, due to peculiar nature of those animals. All declare grazing on public
domain is under implied license by government. Our statute makes no such classification as
to stock, but classifies owners as holders or nonholders of weird and indefinite subsisting
water rights, and excludes all stock regardless of kind from certain limits. Its purpose is only
to control and monopolize range, which is frowned upon by all the decisions. Law is unjust
which deprives one of recognized right to graze at large on public land and feed there, while
under pretense of having subsisting water right, another obtains monopoly of adjacent range.
50 Nev. 125, 128 (1927) In Re Calvo
Act is too indefinite to permit of criminal prosecution. Such phrases as in sufficient
numbers, readily accessible, substantially interfere, in such proximity, are samples of
loose language used.
Act is unconstitutional because subject is not expressed in title. Const. art. 4, sec. 17; Ex
Rel. Drury v. Hallock, 12 P. 832.
Mere intent to graze is declared a crime, though there is no crime without joint union of
act and intent.
State engineer is vested with judicial power over public domain.
Congress alone has power to regulate and dispose of federal property. U. S. Const. sec. 3,
art. 4.
Act violates federal act against fencing unappropriated public land or assertion of right to
exclusive use without color of right. Fed Stat. Ann. 752.
M. A. Diskin, Attorney-General; Wm. Forman, Jr., Deputy Attorney-General; Edgar
Eather, District Attorney, and Price & Hawkins, for Respondent; Chandler & Quayle, amici
curiae:
Act prohibits one from driving stock on range occupied by another and using his water, or
accomplishing same purpose by watering near by and consuming his grasses, thereby
rendering water right as useless as if water itself were taken. It does not affect one's water
rights within three miles of another's existing at time of enactment; migratory herds, herds
less than 50 head, nor grazing any number provided they are not watered as indicated. It is not
local, but operates throughout entire state. It is not special, but acts uniformly on all of a
particular classthose who water more than 50 head, as indicated.
Similar acts have been upheld in western grazing states, though every conceivable
objection was raised against them. States possess and can exercise police power over public
lands. The authorities demonstrate judicial thought and reasoning, and clearly establish
validity of act. Pyramid Land Co. v. Pearce, 95 P. 210; Sivers v. Johnson, 65 P. 797; Sweet
v. Ballentyne, 69 P. 997; State v. Horn, 152 P. 275; Bacon v. Walker, 204 U. S. 311;
Omaechevarria v. Idaho, 246 U. S. 343; Hazas v. State, 219 P. 229; State v. Coppinger,
155 P. 732; Hill v. Winkler, 131 P. 1014; Yates v. White, 235 P.
50 Nev. 125, 129 (1927) In Re Calvo
Sivers v. Johnson, 65 P. 797; Sweet v. Ballentyne, 69 P. 997; State v. Horn, 152 P. 275;
Bacon v. Walker, 204 U. S. 311; Omaechevarria v. Idaho, 246 U. S. 343; Hazas v. State, 219
P. 229; State v. Coppinger, 155 P. 732; Hill v. Winkler, 131 P. 1014; Yates v. White, 235 P.
437.
Act embraces but one subject; title is sufficiently broad. Ex Parte Ah Pah, 34 Nev. 283.
Act does not conflict with sub. 3, sec. 4, of state enabling act as no claim of right or title to
public lands is asserted.
OPINION
By the Court, Coleman, J.:
This is an original proceeding in prohibition to prevent the respondent, a justice of the
peace, from proceeding to try the petitioner upon a complaint wherein he is charged with
violating section 4, c. 201, Stats. 1925, in that he grazed more than 50 head of sheep within
three miles of a certain spring owned by another. Section 4 of the act reads:
Any person who, without the right so to do, shall on two or more separate days during
any season, water more than fifty head of live stock at the watering place at which another
shall have a subsisting right to water more than fifty head of live stock, or within three miles
of such place, with intent to graze the live stock so watered on the portion of the public range
readily accessible to live-stock watering at the watering place of such other person, shall be
guilty of a misdemeanor and on conviction thereof shall be punished by a fine not exceeding
the sum of five hundred dollars, or by imprisonment in the county jail not exceeding six
months, or by both such fine and imprisonment.
Each day's watering in violation of this section shall be deemed a separate offense.
Whenever, in any prosecution for such offense, it shall appear that the watering by the
accused was not done at the watering place of another, but was done within three miles
thereof, it shall be a sufficient defense for the accused to prove that he had no knowledge
of the existence of such other watering place."
50 Nev. 125, 130 (1927) In Re Calvo
within three miles thereof, it shall be a sufficient defense for the accused to prove that he had
no knowledge of the existence of such other watering place.
It is contended that the statute under which the prosecution was initiated is
unconstitutional, null, and void. In support of this contention it is urged that by the act the
state seeks to exercise a control over the public domain of the United States.
The preamble to the act in question recites the importance of the use of water for watering
range live stock; that the value of the right to water such stock is directly dependent upon the
availability to the owner of such right of the use of the public range in the vicinity of such
watering places; and that the existence in the separate owners of two or more rights for
watering range live stock in the same vicinity tends to produce controversies concerning the
use of the public range, which often results in breaches of the peace.
The chief contention of counsel for the petitioner is expressed in their brief as follows:
It is our position that the legislature of the State of Nevada, in enacting the 1925 statute,
has encroached upon the power of the federal government to dispose of and make needful
rules and regulations respecting the grazing lands belonging to the United States; that the
State of Nevada is repudiating its contract with the federal government forever to disclaim all
right to the unappropriated public lands lying within its borders, and agreeing that the same
shall be and remain at the sole and entire disposition of the United States government. We
contend that by legislation the state has attempted to fence off certain lands by statute, and
that to all intents and purposes this statute constitutes encroachment on public lands of the
United States, and we especially emphasize that this statute violates the congressional act set
up in our petition, in that it constitutes an exercise of a right to the exclusive use and
occupancy of a portion of the public lands of the United States, and delegating that right of
occupancy to another, to wit, a party having a subsisting right to water range stock at a given
place.
50 Nev. 125, 131 (1927) In Re Calvo
The foregoing contention is bottomed, as we gather, upon the fourteenth amendment to the
federal constitution, which prohibits a state from abridging the rights, privileges, and
immunities of citizens of the United States, from depriving any person of property without
due process of law, and from denying to any person the equal protection of the law.
It is petitioner's contention that each citizen, in common with every other citizen, has a
right to graze his live stock on the public domain, and that the state has no power to interfere
with the exercise of such right. He rests this contention upon the concluding paragraph of the
opinion in Buford v. Houtz, 133 U. S. 320, 10 S. Ct. 305, 33 L. Ed. 618, which reads:
Upon the whole, we see no equity in the relief sought by the appellants in this case, which
undertakes to deprive the defendants of this recognized right to permit their cattle to run at
large over the lands of the United States and feed upon the grasses found in them, while,
under pretense of owning a small proportion of the land which is the subject of controversy,
they themselves obtain the monopoly of this valuable privilege.
Just how the paragraph quoted can affect the case in hand is beyond our understanding.
That was a case in which Buford owned tracts of unfenced land, interspersed with large tracts
of public domain, in a state where the law required a landowner to fence against live stock
running at large, if he desired to keep them off his lands; the court holding that under such
conditions the plaintiff could not enjoy a monopoly to large tracts of public land through an
injunction restraining the defendants from permitting their cattle to run at large. That case has
no application to the situation in hand, as is shown in Northern Pacific Ry. Co. v.
Cunningham (C.C.), 89 F. 594, and in Spencer v. Morgan, 10 Idaho, 542, 79 P. 459.
The question whether a state might make certain regulations affecting the enjoyment of
grazing privileges upon the public domain of the United States has been raised often in the
courts of this country, and in every instance that right, within certain limitations, has been
upheld under the general police power of the state where the regulation was for the
purpose of promoting the peace and good order of society or the general welfare of the
state.
50 Nev. 125, 132 (1927) In Re Calvo
has been upheld under the general police power of the state where the regulation was for the
purpose of promoting the peace and good order of society or the general welfare of the state.
In this state the right to make such a regulation as to the grazing of sheep was upheld in
Pyramid L. & L. Co. v. Pierce, 30 Nev. 237, 95 P. 210, under the general police power of the
state. Such has been the conclusion reached by every court in the land in which the question
has been raised. This question was first considered in Idaho in the case of Sifers v. Johnson, 7
Idaho, 798, 65 P. 709, 54 L. R. A. 785, 97 Am. St. Rep. 271, in which the validity of the law
prohibiting the grazing of sheep on the public domain within two miles of a residence was
attacked as unconstitutional upon substantially the same grounds as are urged in the instant
case. The court upheld the statute upon the ground that the act was valid as a police
regulation. The same question came before the Idaho court in the case of Sweet v. Ballentyne,
8 Idaho, 431, 69 P. 995, wherein the court reconsidered the question at considerable length,
adhering to the conclusion reached in the former case.
The same question was again presented to the Idaho court in the case of Walker v. Bacon,
11 Idaho, 127, 81 P. 155, 114 Am. St. Rep. 262, where the court adhered to its former
conclusions, contenting itself with merely citing authorities in support thereof. The
last-named case was taken on writ of error to the Supreme Court of the United States, where
the judgment of the Idaho court was affirmed. Bacon v. Walker, 204 U. S. 311, 27 S. Ct. 289,
51 L. Ed. 499. The question was again before the Supreme Court of Idaho in the case of State
v. Omaechevarria, 27 Idaho, 797, 152 P. 280, and in the companion case of State v. Horn, 27
Idaho, 782 152 P. 275, wherein the court at some length again reviewed the question,
adhering to its former conclusion. This case was likewise taken by writ of error to the
Supreme Court of the United States, wherein the judgment was affirmed. Omaechevarria v.
State of Idaho, 246 U. S. 343, 38 S. Ct. 323, 62 L. Ed. 763.
50 Nev. 125, 133 (1927) In Re Calvo
1. While the reasons adopted in the opinions in the Idaho cases cited in support of their
conclusion are sound, the decisions of the Supreme Court of the United State to which we
have alluded are the last word upon the question, and are controlling upon us, whether sound
or unsound.
2. The court, in Bacon v. Walker, 204 U. S. 314, 27 S. Ct. 289, 51 L. Ed. 499, in
disposing of the contention that the Idaho statute was violative of the fourteenth amendment
to the constitution of the United States, said:
The specifications of the grounds of the unconstitutionality of those sections were in the
courts below and are in this court: (1) That plaintiff in error has an equal right to pasture with
other citizens upon the public domain, and that by imposing damages on him for exercising
that right he is deprived of his property without due process of law; (2) that a discrimination
is arbitrarily and unlawfully made by the statutes between citizens engaged in sheep grazing
on the public domain and citizens engaged in grazing other classes of stock.
These grounds do not entirely depend upon the same considerations. The first denies to
the state any power to limit or regulate the right of pasture asserted to exist; the other
concedes such power, and attacks it only as it discriminates against the grazers of sheep. * * *
Is it true, therefore, even if it be conceded that there is right or license to pasture upon the
public domain, that the state may not limit or regulate the right or license? Defendants in
error have an equal right with the plaintiff in error, and the state has an interest in the
accommodation of those rights. It may even have an interest above such accommodation. The
laws and policy of a state may be framed and shaped to suit its conditions of climate and soil.
Illustrations of this power are afforded by recent decisions of this court. * * *
These cases make it unnecessary to consider the argument of counsel based upon what
they deem to be the limits of the police power of a state, and their contention that the statute
of Idaho transcends those limits. It is enough to say that they have fallen into the error
exposed in Chicago, Burlington & Quincy Railway Co. v. Drainage Commissioners, 200 U.
S. 561, 592 [26 S. Ct. 341, 50 L. Ed. 596, 4 Ann.
50 Nev. 125, 134 (1927) In Re Calvo
is enough to say that they have fallen into the error exposed in Chicago, Burlington & Quincy
Railway Co. v. Drainage Commissioners, 200 U. S. 561, 592 [26 S. Ct. 341, 50 L. Ed. 596, 4
Ann. Cas. 1175]. In that case we rejected the view that the police power cannot be exercised
for the general well-being of the community. That power, we said, embraces regulations
designed to promote the public convenience or the general prosperity, as well as regulations
designed to promote the public health, the public morals or the public safety. We do not enter,
therefore, into the discussion whether the sheep industry is legitimate and not offensive. Nor
need we make extended comment on the two-mile limit. The selection of some limit is a
legislative power, and it is only against the abuse of the power, if at all, that the courts may
interpose. But the abuse must be shown. It is not shown by quoting the provision which
expresses the limit. The mere distance expressed shows nothing. It does not display the
necessities of a settler upon the public lands. * * * We think, therefore, that the statutes of
Idaho are not open to the objection that they take the property of plaintiff in error without due
process of law, and pass to the consideration of the charge that they make an unconstitutional
discrimination against the sheep industry.
In Omaechevarria v. Idaho, 246 U. S, 343, 38 S. Ct. 323, 62 L. Ed. 763, was involved the
Idaho statute prohibiting the grazing of sheep on any cattle range previously occupied by
cattle. In disposing of the constitutional objection made to the statute in that case, the court
said:
These contentions are, in substance, the same as those made in respect to the Two Mile
Limit Law,' in Bacon v. Walker [204 U. S. 311, 27 S. Ct. 289, 51 L. Ed. 499], supra; and the
answer made there is applicable here. The police power of the state extends over the federal
public domain, at least when there is no legislation by Congress on the subject. We cannot
say that the measure adopted by the state is unreasonable or arbitrary.
50 Nev. 125, 135 (1927) In Re Calvo
The court held the statute a valid exercise of the police power of the state.
In the case of McKelvey v. United States, 260 U. S. 353, 43 S. Ct. 132, 67 L. Ed. 301, the
court said:
It also is settled that the states may prescribe police regulations applicable to public land
areas, so long as the regulations are not arbitrary or inconsistent with applicable congressional
enactments. Among the regulations to which the state power extends are quarantine rules and
measures to prevent breaches of the peace and unseemly clashes between persons privileged
to go upon or use such areas.
Two regulations of the latter type by the State of Idaho have been sustained by this
courtone making it unlawful to herd sheep or permit them to graze within two miles of the
dwelling house of another having a possessory claim to the land whereon the house stands
(Bacon v. Walker, 204 U. S. 311, 27 S. Ct. 289, 51 L. Ed. 499), and the other making it
unlawful to herd sheep or permit them to graze on a range which by prior usage has come to
be a cattle range Omaechevarria v. Idaho, 246 U. S. 343, 38 S. Ct. 323, 62 L. Ed. 763).
To the same effect are the following cases: Walling v. Brown, 9 Idaho, 184, 72 P. 960;
Phipps v. Grover, 9 Idaho, 415, 75 P. 64; Walling v. Brown, 9 Idaho, 740, 76 P. 318, 2 Ann.
Cas. 720; Spencer v. Morgan, 10 Idaho, 542, 79 P. 459; Walker v. Bacon, 11 Idaho, 127, 81
P. 155, 114 Am. St. Rep. 262; State v. Horn, 27 Idaho, 782, 152 P. 275; Hill v. Winkler, 21
N. M. 5, 151 P. 1014; Yates v. White, 30 N.M. 420, 235 P. 437; State v. Coppinger, 21 N. M.
435, 155 P. 732; Hazas v. State, 25 Ariz. 453, 219 P. 229; Sifers v. Johnson, 7 Idaho, 798, 65
P. 709, 54 L. R. A. 785, 97 Am. St. Rep. 271; Sweet v. Ballentyne, 8 Idaho, 431, 69 P. 995;
State v.Omaechevarria, 27 Idaho, 797, 152 P. 280.
But counsel for petitioner seek to distinguish the Idaho cases we have alluded to from the
instant case. If we correctly interpret counsels' brief, it is contended that the Idaho cases and
Bacon v. Walker, supra, merely held that, because of the offensive character of sheep, the law
was sound, but that, since the statute in question in the instant case affects cattle,
horses, and all live stock alike, the rule laid down in the cases mentioned does not apply,
and in support of the contention they direct our attention to State v. Coppinger, 21 N. M.
435, 155 P.
50 Nev. 125, 136 (1927) In Re Calvo
was sound, but that, since the statute in question in the instant case affects cattle, horses, and
all live stock alike, the rule laid down in the cases mentioned does not apply, and in support
of the contention they direct our attention to State v. Coppinger, 21 N. M. 435, 155 P. 732;
Hazas v. State, 25 Ariz. 453, 219 P. 229; Hill v. Winkler, 21 N. M. 5, 151 P. 1014; and
Omaechevarria v. Idaho, 246 U. S. 343, 38 S. Ct. 323, 62 L. Ed. 763, from which latter
opinion they quote as follows:
The Idaho statute makes no attempt to grant a right to use public lands. * * * The state
acting in the exercise of its police power, merely excludes sheep from certain ranges under
certain circumstances. * * * The incidental protection which it thereby affords to cattle
owners does not purport to secure to any of them, or to cattle owners collectively, the
exclusive use and occupancy of any part of the public lands.' For every range from which
sheep are excluded remains open not only to all cattle, but also to horses, of which there are
many in Idaho.
We do not understand that the fact that sheep may be offensive entered into the cases
referred to at all. Such may have been one of the moving causes which prompted the
legislature to enact the law, but the courts uniformly upheld the legislation upon the ground
that it was within the police power of the state. In Sweet v. Ballentyne, 8 Idaho, 431, 69 P.
995, the court, speaking through Quarles, C.J., said:
The statutes in question were enacted for the protection of the health, the property, and
welfare of the inhabitants of this state, and to promote good order. The statutes cited make it
unlawful to herd or graze sheep on the lands of another, or within two miles of the dwelling
of another.
The court then considers at considerable length the policy which prompts such legislation,
and, as we have said, based its conclusion upon the general ground that such legislation is
within the police power of the state. Such is the theory which leads to the conclusion reached
in all of the cases.
50 Nev. 125, 137 (1927) In Re Calvo
The trouble with counsels' position as to the quotation set forth is that they do not quote
enough of the opinion to correctly show the real position of the court, and the reason for its
conclusion on the phase of the case then being considered. After making the statement
quoted, the court goes on to say:
This exclusion of sheep owners under certain circumstances does not interfere with any
rights of a citizen of the United States. Congress has not conferred upon citizens the right to
graze stock upon the public lands. The government has merely suffered the lands to be so
used. Buford v. Houtz [133 U. S. 320, 10 S. Ct. 305, 33 L. Ed. 618], supra. It is because the
citizen possesses no such right that it was held by this court that the secretary of agriculture
might, in the exercise of his general power to regulate forest reserves, exclude sheep and
cattle therefrom. United States v. Grimaud, 220 U. S. 506 [31 S. Ct. 480, 55 L. Ed. 563];
Light v. United States, 220 U. S. 523 [31 S. Ct. 485, 55 L. Ed. 570].
From this language it will be seen that the court gave its real reason for its conclusion;
namely, the exclusion of sheep owners does not interfere with any right of a citizen, for the
reason that Congress has not conferred upon citizens the right to graze stock upon public
lands, but that that privilege was merely tolerated by the federal government, and, the state
having the right to exercise its police power over the public domain, the plaintiff had no
recourse. The same reasoning would apply in case of cattle or horses.
3. In discussing the contention that the act in question authorizes the taking of property
without the due process of law, counsel presents an imaginary case which is not in accord
with the facts in the matter before us. It being a moot question, we decline to discuss it.
4, 5. It is asserted that the act in question is in conflict with the act of Congress of
February 25, 1885 (U. S. Comp. St. secs. 991 [21], 4997-5002), entitled An act to prevent
unlawful occupancy of the public lands, which was designed to prevent the illegal fencing in
of public lands, and that it grants a monopoly. The Supreme Court of the United States in
Omaechevarria v. Idaho, 246 U. S. 343, 3S S. Ct. 323, 62 L. Ed. 763, supra, has repudiated
the first contention, and we are not disposed to overrule that court.
50 Nev. 125, 138 (1927) In Re Calvo
Supreme Court of the United States in Omaechevarria v. Idaho, 246 U. S. 343, 38 S. Ct. 323,
62 L. Ed. 763, supra, has repudiated the first contention, and we are not disposed to overrule
that court. We have shown that the case just mentioned cannot be distinguished in principle
from the instant case, and will not again undertake to do so. Nor is there merit in the
contention that the act grants a monopoly. No restrictions are placed upon the grazing or
watering of less than 50 head of live stock, nor is there any restriction upon one who is
driving his live stock through the country, provided he does not water more than one day in a
season at a given place. Furthermore, one may graze any number of head of live stock on the
public domain and for any length of time, provided he does not water them within three miles
of another's watering place.
The restrictions imposed not only do not grant a monopoly, but, in the opinion of the
legislature, are reasonable and necessary to the peace and good order of society, and to the
promotion of the general welfare.
6, 7. The statute in question is not violative of the Nevada enabling act whereby the
people of the state agreed to forever disclaim all right and title to the unappropriated public
lands lying within its boundaries. The state is not asserting any right or title to the public
domain under the act herein assailed. All that the state seeks to do pursuant to the statute is to
exercise police regulations over the public domain. This it has a right to do, as we have
shown. Furthermore any time the federal government conveys title to any portion of the
public domain in this state, or in any other manner undertakes to exercise control over it, the
statute in question becomes inoperative in so far as it conflicts with the authority of the
federal government.
8, 9. It is next contended that the act is too indefinite to permit a criminal prosecution. In
support of this contention several objections are urged. The first section of the act states that
the use of water for watering live stock is declared to be a beneficial use. It provides that
such a right may be acquired in the same manner as the right to use water for other
beneficial uses.
50 Nev. 125, 139 (1927) In Re Calvo
that such a right may be acquired in the same manner as the right to use water for other
beneficial uses. Section 2 of the act provides that under certain conditions a right to
appropriate water for the watering of live stock may not be acquired. Section 3 of the act
provides that the state engineer, before approving an application to use water for watering live
stock, shall determine that the right and use applied for will not contravene the policy of
section 2 of the act, and that in a certain situation he may reject the application. Section 4 is
quoted in full above. Section 5 provides that no vested right shall be affected by the act, while
section 6 merely defines the terms range live stock and public range.
While we do not think the question of the indefiniteness of the act can properly be
considered in this character of a proceeding, we may say that there is no merit in the
contention. Sections 1, 2, and 3 pertain to the acquisition of a right to water live stock,
whereas section 4 is confined to defining what shall constitute a misdemeanor and in fixing
the penalty.
10. It is further contended that the act is unconstitutional, because the title is not in accord
with article 4, sec. 17, of our constitution which reads:
Each law enacted by the legislature shall embrace but one subject, and matter properly
connected therewith, which subject shall be briefly expressed in the title.
It is said that the title contains no reference whatsoever to range or grazing rights and
privileges or to grazing of live stock upon the public domain, and that it refers solely to the
use of water for watering live stock. It is a well-recognized rule that the constitutional
provision in question must be given a liberal construction. State v. Ah Sam, 15 Nev. 27, 37
Am. Rep. 454; McBride v. Griswold, 38 Nev. 56, 146 P. 756; First National Bank v. Nye Co.,
38 Nev. 123, 145 P. 932, Ann. Cas. 1917c, 1195.
11. The contention must be rejected. In Ex Parte Ah Pah, 34 Nev. 283, 119 P. 770, the
court had under consideration a title which read: "An act concerning public schools, and
repealing certain acts relating thereto." St. 1911, c.
50 Nev. 125, 140 (1927) In Re Calvo
An act concerning public schools, and repealing certain acts relating thereto. St. 1911, c.
133.
It was held that a provision in the body of the act prohibiting and penalizing the keeping of
a house of ill fame within 800 yards of a schoolhouse did not make the act void, though the
title of the act made no reference whatever to such houses. The act was upheld on the ground
that the prohibition of the keeping of such house and the penalty thereof was matter properly
connected with the subject of the act. The right to the use of water for watering live stock in
this arid state depends for its value on the public range; hence we think the two matters are
properly connected. The case which we have cited refers to the Nevada cases on the point,
and we do not deem it necessary to review them.
12. It is further contended that the mere intent to graze cattle on the public range within
three miles from a watering place, impressed with a subsisting right in another, is sought to
be made a crime by the act in question, and hence no crime is created by the act, since, as it is
said, there must exist in every crime a union or joint operation of act and intention. If we
correctly understand the contention, we find no ground for its support. The act clearly
provides that there must be a watering, plus the intention to graze live stock. If one grazes
live stock within three miles of a watering place such as described in the act, but does not
water his live stock there, no crime is committed. On the other hand, if he waters his live
stock at such a place, but has no intention to graze within three miles thereof, there is no
crime.
13, 14. The act in question is not violative of the provision of the constitution (article 4,
sec. 21), requiring, where a general law can be made applicable, all laws shall be general and
of uniform operation throughout the state. The act is general in its terms, applying to every
person in similar circumstances, and it operates uniformly throughout the state. Nor is there
merit in the contention that the law gives justices of the peace jurisdiction of cases wherein
the title to real estate is involved.
50 Nev. 125, 141 (1927) In Re Calvo
jurisdiction of cases wherein the title to real estate is involved. State v. Rising, 10 Nev. 97.
While we have not considered the points made as presented, we have substantially disposed
of them all.
It is ordered that these proceedings be, and the same are hereby, dismissed, and that the
alternative writ heretofore issued be, and the same is hereby, discharged.
____________
50 Nev. 141, 141 (1927) Ex Rel. Edwards v. Wilson
EX REL. EDWARDS v. WILSON
No. 2698
February 24, 1927. 253 P. 857.
1. NuisanceEquity Ignores Criminality.
Whether maintenance of public nuisance is punishable in law courts as crime is immaterial so far as
preventive jurisdiction of equity is concerned, since equity ignores its criminality and visits on offender
no punishment as for crime.
2. NuisanceAbatement; State Not Plaintiff.
Action to abate public nuisance under Rev. Laws, 1562, requiring county commissioners to direct
district attorney to act when they have knowledge of nuisance, held improperly brought in name of state,
on relation of district attorney within and for county, since county is real party in interest, and state is not
proper party plaintiff.
Nuisances29 Cyc. p. 1221, n. 40; p. 1235, n. 29 (new).
Action by the State, on the relation of H. W. Edwards, District Attorney within and for
White Pine County, against Hugh Wilson. From a judgment entered upon an order sustaining
defendant's demurrer to the complaint, plaintiff appeals. Affirmed.
H. W. Edwards, District Attorney, for Appellant:
Equity can abate nuisance in civil action, especially where it affects public health, welfare
or morals, though acts complained of are punishable criminally.
acts complained of are punishable criminally. Mugler v. Kansas, 123 U. S. 623. That act also
constitutes crime in addition to nuisance, gives offender no special privilege of exemption
from equitable jurisdiction. Goldfield Con. v. Richardson, 194 Fed. 198. Prosecuting officer
may sue in equity to abate public criminal nuisance, even in absence of statute conferring
such power. L. R. A. 1918d, 821; Stead v. Fortner, 99 NE. 680.
Rev. Laws, 1562, which directs county commissioners to report violations of public right
to district attorney, is merely cumulative and provides other means for public protection, and
does not deprive him of right and duty to bring suit. It does not state in whose name action
should be brought, not county, but state representing people at large in its sovereign capacity,
is real party plaintiff. 29 Cyc. 1238; Fogg v. N. C. O., 20 Nev. 429.
James M. Lockhart, for Respondent:
Rev. Laws, 1562, provides action shall be under control of county commissioners in like
manner as other suits in which county is party. District attorney is not authorized to represent
state except in criminal cases in district and justice's courts and to prosecute recognizances
forfeited in district court. Rev. Laws, 1596, 1598. Attorney-general alone has right to
represent state in civil action. Rev. Laws, 4429, 4133.
Fogg v. N. C. O., 20 Nev. 429, is no longer authority. Eleven years after that decision
(which held if alleged wrongful act is only obstruction to exercise of right common to public
as well as to individual, remedy is by information filed by attorney-general or district
attorney, or indictment). Rev. Laws, 1562, was enacted which entirely changed law.
Courts of equity have long since refused to be made instruments to punish crime. In
famous Debs case, 158 U. S. 593, special stress was laid on right of property of United States
in mails carried by railroad, and right to enjoin was based on right of property. Except where
there is express statutory authority therefor, equity has no criminal jurisdiction, and acts
or omissions will not be enjoined on mere ground that they are crimes.
where there is express statutory authority therefor, equity has no criminal jurisdiction, and
acts or omissions will not be enjoined on mere ground that they are crimes. 32 C. J. 275;
Motor Car Dealers Ass'n. v. Haines Co., 222 P. 611; Hedden v. Hand, 107 Atl. 285.
OPINION
This appeal is taken from a judgment entered upon an order sustaining defendant's
demurrer to a complaint filed under the provisions of an act entitled An act to define the
duties of county commissioners and district attorneys, relative to abating nuisances in the
several counties of the State of Nevada and matters connected therewith, approved March 2,
1901 (Stats. 1901, c. 29), and found in section 1562, Rev. Laws, which reads as follows:
Whenever, in any county of this state, the county commissioners of said county shall have
knowledge, either by personal observation, complaint in writing, or other satisfactory
evidence, that a nuisance exists within the limits of said county, as defined by section 3346 of
the Compiled Laws of Nevada (infra, 5504) it shall be the duty of said board of county
commissioners to take immediate action by entering and recording an order in the minutes of
said board, directing the district attorney to notify the person or persons responsible for such
nuisance to abate the same, and in case the said notice is not obeyed within five days from
and after such service, the said district attorney is hereby directed and empowered to bring
action in a court of justice to enforce or abate the same, together with the recovery of
damages and costs. Said action shall be under the control of the board of county
commissioners in like manner as other suits to which the county is a party, and all necessary
expenses incurred in conducting said action shall be paid out of the general fund of said
county as other claims are paid. Failure on the part of either county commissioners or
district attorney to enforce the provisions of this act shall work forfeiture of office."
either county commissioners or district attorney to enforce the provisions of this act shall
work forfeiture of office.
The complaint, in form, is a bill in equity to abate certain houses of ill fame as public
nuisances; said houses being situated within 400 yards of a public school and the Sacred
Heart Church in the town of Ely, White Pine County, Nevada, in violation of law. The
complaint shows affirmatively that all conditions of the statute were complied with before the
institution of the action. For present purposes it is unnecessary to discuss the extended
allegations of the complaint, further than to say that they present a very strong case for
abatement and injunction.
1. Whether the maintenance of public nuisance is or is not punishable in the law courts as
a crime is an immaterial incident so far as the preventive jurisdiction of equity is concerned,
for equity ignores its criminality, and visits upon the offender no punishment as for a crime.
State v. Ellis, 201 Ala. 295, 78 So. 71, L. R. A. 1918d, 816, Ann. note 821.
2. The main point presented by the demurrer is that the State of Nevada is not a proper
party plaintiff, and that the action was improperly brought in the name of the State of Nevada
on the relation of the district attorney of White Pine County. The court sustained the
demurrer, and we are in accord with its ruling.
The statute makes it clear that the county is the real party in interest in an action brought
under its provisions to abate public nuisances existing within the limits of said county; that
such action is under the control of the board of county commissioners in like manner as other
suits to which the county is a party; that all necessary expenses incurred in conducting the
action are payable out of the general fund; that the district attorney derives his authority to
bring the action solely from the statute; and that failure to enforce its provisions works
forfeiture of office.
The demurrer was properly sustained. Judgment affirmed.
____________
50 Nev. 145, 145 (1927) Ex Rel. Williamson v. Morton
EX REL. WILLIAMSON v. MORTON
No. 2765
March 17, 1927. 254 P. 147.
1. OfficersAssessor, Vacancy.
There being no constitutional provision authorizing county assessors to hold over until their
successors are elected and qualified, under Const. art. 15, sec. 11, providing that the legislature shall
not create office, tenure of which shall be longer than four years, office of county assessor becomes
vacant at expiration of four years, even though no successor is elected and qualified.
Officers29 Cyc. p. 1399, n. 28; p. 1401, n. 50 (new).
Taxation37 Cyc. p. 979, n. 23 (new).
Original Quo Warranto by the state, on the relation of Thomas Williamson, against H. A.
Morton. Writ to issue.
M. A. Diskin, Attorney-General, and Roy W. Stoddard, Deputy Attorney-General, for
Plaintiff:
There was no candidate for assessor at general election of 1926. If defendant is duly
authorized assessor for new term it can be only by virtue of his right to hold over until his
successor is elected and qualified. There is no law for county officer to so hold over. Act of
1865, Rev. Laws, 1570, provided that assessor should continue in office for two years and
until his successor is elected and qualified. Stats. 1883, 123, attempted to extend term of
assessors then in office to four years (held unconstitutional in State v. Arrington, 18 Nev.
412), and omitted words and until his successor is elected and qualified. By act of 1899,
Rev. Laws, 1577, term was again fixed at two years, and words and until, etc. were omitted.
Assessors are only county officers who were ever authorized to hold over. Examination of
legislation shows later intention was to prohibit it. In construing statute repealing former by
implication, last expression must prevail. Christy v. Supervisors, 39 Cal. 10. When provision
is left out of statute by design or mistake, courts have no right to supply it. Hobbs v. McLean,
117 U. S. 579; State v. Simon, 26 P. 171.
Rev. Laws, 2813, makes provision for filling any vacancy in county offices, through
appointment by commissioners, thus eliminating reason for holding over.
When constitution limits tenure to four years, legislature cannot provide officer shall hold
over after expiration of his term until his successor is appointed. 15 C. J. 491; Christie v.
Sacramento, 39 Cal. 11; Ex rel. Wagner v. Compson, 54 P. 349.
Constitution and legislature limit defendant's term to four years and, no successor having
been elected, office became vacant. Relator then became assessor by appointment by
commissioners. Const. art. 15, sec. 11; Rev. Laws, 2813.
G. J. Kenney and A. L. Haight, for Defendant:
It is only where there is no incumbent that our system allows appointment. Power to fill
vacancies is narrowly construed. People v. Whitman, 10 Cal. 38; 29 Cyc. 1400, 1402.
Where statute provides for holding over, expiration of term does not produce vacancy, but
incumbent continues as de jure officer. 29 Cyc. 1399.
Constitutional four-year limitation does not render office vacant upon expiration of such
term so as to create vacancy which may be filled by appointment. People v. Hammond, 6 P.
741; People v. Nye, 98 P. 241.
Incumbent holds over after term has expired until successor is elected and qualified or
until one is elected and qualified. He is officer de jure. If there is vacancy after expiration of
term, statute itself fills vacancy by providing incumbent shall hold over. Rule is not that he
shall hold over until there is opportunity of electing successor, but until successor is elected
and qualified. There is no occasion for appointment if there is incumbent in office. Same
person may hold office for more than one term, even though constitution limits term to four
years. People v. Tilton, 37 Cal. 614
OPINION
This is an original proceeding in quo warranto to oust the defendant from the office of
assessor of Churchill County.
oust the defendant from the office of assessor of Churchill County. The defendant was elected
assessor of Churchill County in November, 1922, for a term of four years. At the general
election in November, 1926, when, according to the general statute, all county officers
holding for a period of four years should have been elected, there was no candidate for the
office of county assessor of Churchill County. On January 3, 1927, the board of county
commissioners of that county, being of the opinion that the office of county assessor was
vacant, appointed the relator to the office, whereupon he duly qualified and demanded the
office of the defendant, who refused the demand upon the ground that he holds over until his
successor is elected and duly qualifies. There is no provision in our constitution authorizing a
county assessor to hold over.
Several contentions are urged by relator in this matter, but we deem it necessary to discuss
but one. It is contended by relator that respondent is incapable of holding over because of the
provision in section 11, art. 15 of our constitution, which reads:
* * * The legislature shall not create any office the tenure of which shall be longer than
four years, except as herein otherwise provided in this constitution.
There is no exception in the constitution as to the office in question.
In support of this contention our attention is directed to the case of State ex rel. Wagner v.
Compson, 34 Or. 25, 54 P. 349, and the authorities therein cited. The constitutional provision
under consideration in that case was, so far as is material here, identical with the provision of
section 11, art. 15, of our constitution. It was there contended that, where a railroad
commissioner had held over for more than four years, the office became vacant under the
constitutional provision in question. In disposing of the case the court said:
The law seems to be settled that, where the duration of an official term is limited by the
constitution, the office becomes vacant at the expiration of that term, even though the
legislature has provided that the incumbent shall hold until his successor is duly qualified.
shall hold until his successor is duly qualified. 19 Am. & Eng. Enc. Law (1st ed.), 433; State
v. Howe, 25 Ohio St. 588, 18 Am. Rep. 321; State v. Brewster, 44 Ohio St. 589, 9 NE. 849.
The court proceeds to say, however, that where, as in Oregon, another section of the
constitution provides that an officer shall hold over until his successor is elected and
qualified, there is no vacancy as a result of such an officer's holding over in excess of that
four-year limitation.
The Ohio cases, supra, are more apt illustrations and authority in support of the contention
made. In both of those cases it was held that a constitutional provision similar to ours was a
limitation upon the term for which one might hold an office, and that there could be no
holding over which would result in an extension of that term.
In Burnham v. Sumner, 50 Miss. 517, which was a contest between a hold-over appointee
for superintendent of public education and another, it was said:
The fourth section of the eighth article of the constitution provides that there shall be a
superintendent of public education in each county, who shall be appointed by the board of
education, by and with the advice and consent of the senate, whose term of office shall be two
years. According to this limitation in the constitution, Burnham's term of office could not
continue longer than the 31st day of January, 1875, and he could not legally hold said office
any longer, unless he was authorized by law to hold the same until his successor was qualified
to enter upon the duties of the office. No officer, named in the constitution, whose term of
office is prescribed therein, can hold for a longer period than that specified in that instrument.
The twenty-second section of the fifth article of the constitution provides that all officers
named in this article shall hold their offices during the term for which they were elected,
unless removed by impeachment or otherwise, and until their successors shall be duly
qualified to enter on the discharge of their separate duties. The county superintendent of
education is not one of the officers named in that article, and therefore he has no right to
hold over his term.
named in that article, and therefore he has no right to hold over his term. And the legislature
has no power to extend the term of any of these officers beyond the time prescribed by the
constitution, unless authorized by that instrument. As there is nothing in the constitution
authorizing Burnham to hold over after the expiration of his term of office, it necessarily
follows that he had no right to the office in controversy after the 31st day of January, 1875.
The Supreme Court of Pennsylvania in Commonwealth ex rel. Todd v. Sheatz, 228 Pa.
301, 77 A. 547, 50 L. R. A. (N. S.) 374, 21 Ann. Cas. 54, in disposing of this question, said:
Under the well-settled rules of interpretation, the constitution of the commonwealth
having fixed the term of office of state treasurer at two years, the respondent's term expired at
the end of that period, and thereafter he could not exercise the functions of the office. The
term of office fixed by the constitution is expressly limited to a definite number of years, and
it is not within the power of the legislature, directly or indirectly, to extend it beyond the
prescribed period. There is no implied right to hold beyond the fixed tenure or of the
legislature to extend the term; on the contrary, under the established rule of constitutional
construction, there is an implied prohibition against the right of the legislature to add to the
term where the constitution has definitely prescribed the duration of the tenure. This
inhibition prevents the incumbent holding over which is simply the prolongation of the old
term. The legislature is without power to abridge or extend the term or to change or add to the
qualifications of a constitutional office unless it is expressly or by necessary implication
conferred by the constitution. This is a settled principle of construction necessarily resulting
from the supremacy of the organic law. It is recognized in the adjudicated cases.
In State v. Howe, 25 Ohio St. 588, 18 Am. Rep. 321, Chief Justice McIlvaine, after
reviewing all the authorities on the subject, said (page 589):
After a careful examination of the question, in the light of both principle and authority,
we are led to the conclusion that the general assembly may provide against the
occurrence of vacancies by authorizing incumbents to hold over their terms in cases
where the duration of their tenures is not fixed and limited by the constitution.
light of both principle and authority, we are led to the conclusion that the general assembly
may provide against the occurrence of vacancies by authorizing incumbents to hold over their
terms in cases where the duration of their tenures is not fixed and limited by the constitution.
* * * In cases where the duration of the tenure of office is limited by the constitution, of
course, its duration cannot be extended by statute.'
The authority of this case was recognized and followed in State ex rel. Atty.-Gen. v.
Brewster, 44 Ohio St, 589, 9 NE. 849, which was a quo warranto to oust the defendant from
the office of county auditor after the end of his constitutional term of three years. The court
said (page 594 [9 NE. 851]):
The term of office of Brewster having been fixed and limited by the constitution, there is
no power in the general assembly to extend his term or tenure of office beyond the time so
limited.'
In Wilson v. Clark, 63 Kan. 505, 65 P. 705, 707, in discussing the subject, the court said
(page 510):
It is true, as was held in State ex rel. Goodin v. Thoman, 10 Kan. 191, and Peters v. State
Canvassers, 17 Kan. 365, that, where the constitution fixes the duration of a term, it is not in
the power of the legislature either to extend or abridge it.'
The constitution of Indiana provides that the treasurer shall continue in office two years,
and no person shall be eligible to the office more than four years in any period of six years. In
Howard v. State, 10 Ind. 99, in speaking of the term of treasurer, the supreme court of that
state said:
Thus, the term of the office of treasurer is fixed. And, though it be conceded that the
legislature may have the power to fix the time at which such term shall commence, still, in
order to effect that object, they are not authorized either to shorten or lengthen it. * * * The
answer to this (power of the legislature to fill a vacancy created by designating the time at
which the term of office shall commence) is that, the term being expressly limited by the
constitution, the legislature has no power to enact a law which, in its effect, would create a
vacancy.'
has no power to enact a law which, in its effect, would create a vacancy.'
The same principle is announced in Gertum v. Kings County, 109 N. Y. 170, 16 NE. 328;
Andrews v. State, 69 Miss. 740, 13 So. 853; People ex rel. Atty.-Gen. v. Burbank, 12 Cal.
378; Gemmer v. State, 163 Ind. 150, 66 L. R. A. 82, 71 NE. 478 [66 L. R. A. 82]; People ex
rel. Oliver v. Knopf, 198 Ill. 340, 64 NE. 842, 1127; State ex rel. Campbell v. Police Comrs.,
88 Mo. 144; Standeford v. Wingate, 2 Duv. [Ky.] 440; State v. Douglas, 26 Wis. 428, 7 Am.
Rep. 87; State ex rel. Rambo v. Maloney, 92 Tenn. 62, 20 SW. 419; People ex rel. Robertson
v. Van Gaskin, 5 Mont. 352, 6 P. 30; State ex rel. Comstock v. Stewart, 52 Neb. 243, 71 NW.
998.
We find the rule stated in 23 Am. & Eng. Ency. Law (2d ed.), p. 415, as follows:
It is entirely competent for the legislature of a state to authorize public officers to hold
over in the absence of any constitutional provision to the contrary. But it is the better opinion,
and the one supported by the greater weight of authority, that when the constitution fixes the
term of an office or limits it to a prescribed period of time, the legislature cannot, by
authorizing the incumbent to hold over until his successor is elected or appointed and
qualified, extend his authority over a longer period than that prescribed.
In reply to the foregoing views, our attention is directed to the case of People v. Campbell,
138 Cal. 11, 70 P. 918. As we interpret this case, it is favorable to the contention made by the
realtor rather than opposed to it. We quote therefrom:
In People v. Tilton, 37 Cal. 614, the court held that the provision in the statute that the
officer might hold his office until his successor was elected and qualified was not an
extension of his term of office in violation of section 7, art. 11, of the constitution of 1849
(which corresponds to section 9, art. 11, of the present constitution), but was the creation of
an additional, contingent term which was within the power of the legislature. The legislature,
however, has no power to create an additional term for an office whose term is limited by
the constitution.
The legislature, however, has no power to create an additional term for an office whose term
is limited by the constitution. In People v. Edwards, 93 Cal. 153, 28 P. 831, the court said:
Where the term of office is fixed, determinate, a provision requiring the officer to
continue to discharge the duties of his office, although his term has expired, until his
successor has qualified, adds an additional, contingent and defeasible term to the original
fixed term.'
In the case of an office created by the legislature, as were all the offices in the cases cited
by the appellant, it was competent for the legislature to provide for such additional contingent
term; but, when the office, as well as the term, is fixed, determinate,' by the constitution, the
legislature has no power to extend or diminish the term, or to add any contingent term
thereto.
With us, the office of assessor is not a constitutional, but a statutory, office, yet, pursuant
to the constitutional provision in question, the termto use the language of the California
case mentionedis fixed, determinate, by the constitutional provision invoked, just as
much as if the office had been created by the constitution itself; hence, as further said therein,
The legislature * * * has no power to create an additional term for an office whose term is
limited by the constitution. See, also, People ex rel. Mattison v. Nye, 9 Cal. App. 148, 98 P.
241.
Whatever might be our determination were the question a new one, in view of what seems
to be the unanimous conclusion of the courts on the point in accord with relator's contention,
we feel that there is no course reasonably open to us other than to follow their interpretation;
hence it follows that the writ should issue as prayed.
It is so ordered.
____________
50 Nev. 153, 153 (1927) Jasper v. Jewkes
JASPER v. JEWKES
No. 2763
April 5, 1927. 254 P. 698.
ON MOTION TO DISMISS
1. Appeal and ErrorStatutory Requirements Cannot Be Waived.
Requirement of civil practice act, sec. 388 (Rev. Laws, 5330), that undertaking on appeal from a
judgment and from an order denying a motion for new trial must be filed within five days after service of
the notice of appeal, is jurisdictional, and cannot be waived by written stipulation between the parties.
2. Appeal and ErrorStatutory Requirements Cannot Be Waived.
Provision of civil practice act, sec. 383 (Rev. Laws, 5325), that judgment may be reviewed as
prescribed by this title, and not otherwise, expressly prohibits waiver of any statutory requirements for
taking and perfecting an appeal not provided for.
3. CourtsConsent Cannot Confer Jurisdiction.
The supreme court is committed to the principle that consent of the parties cannot confer jurisdiction.
Appeal and Error3 C. J. sec. 3, p. 300, n. 19; sec. 125, p. 369, n. 30; sec. 1253, p. 1180, n. 80; sec. 1278,
p. 1119, n. 38.
Courts15 C. J. sec. 101, p. 804, n.7.
Action by Katherine Jasper and another against Floyd Jewkes and others. Judgment was
entered against the defendants, and a motion for new trial was overruled. The defendants filed
and and served notice of appeal, and seven days thereafter filed an undertaking on appeal and
a bill of exceptions. Plaintiffs moved to dismiss the appeal. Appeal dismissed.
H. U. Castle, for Movants:
Mere consent of parties cannot give jurisdiction. Paul v. Armstrong, 1 Nev. 82. Also, 2
Nev. 93, 96; 15 C. J. 806; 11 Nev. 187; 30 Nev. 342; 3 C. J. 369, 1074, 1075.
Courts are bound to take notice of limits of their authority and may recognize want of it
of their own motion.
authority and may recognize want of it of their own motion. 15 C. J. 852; 30 Nev. 243, 59
Atl. 601; 80 Ky. 620; 224 P. 1073; 134 NE. 407.
Filing of appeal bond is jurisdictional. Courts acquire no jurisdiction as result of motion
to dismiss. Twilegar v. Stevens, 49 Nev. 273; Shute v. Big Meadows, 41 Nev. 361.
Bill of exceptions has been substituted for statement of appeal. Gill v. Goldfield Con., 43
Nev. 1; 45 Nev. 247; Joudas v. Squire, 50 Nev. 42.
There can be no appeal except as provided by statute. Johns-Manville v. Lander Co, 48 Nev.
244.
If not taken within sixty days, appeal from denial of new trial must be dismissed. Kingsbury
v. Copren, 47 Nev. 466; Stats. 1923, 163.
Under Stats. 1913, c. 91, appeal from both final judgment and denial of new trial, taken after
sixty days but before six months, is too late. Mellan v. Messenger, 48 Nev. 235.
Transcript shall be filed within thirty days after appeal is perfected and statement settled. Rule
II; Rev. Laws, 4942; Bottani v. Mongolo, 45 Nev. 245.
Morley Griswold and Milton J. Reinhart, for Appellants:
Courts look with disfavor upon dismissal of appeal without trial upon merits. Western E.
& C. Co. v. Amusement Co., 31 Nev. 237.
Dismissed appeal will be restored upon good showing and notice. Rule II.
Appeal dismissed without notice should be reinstated; hence it should not be dismissed if
delay was caused solely by court officer. 4 C. J. 477; 31 Nev. 237; 10 Nev. 41.
Appeal cannot be transmitted until perfected. Clerk's certificate is necessary part. He
cannot certify to unsigned minutes. 23 Nev. 235; 39 Nev. 310; cases under rule II; 4 C. J. 477;
76 P. 1114; 133 P. 910; 44 Atl. 170; 31 P. 319, 797; 24 P. 1060.
OPINION
This is a motion to dismiss the appeal. The motion is made upon the following grounds, to
wit: First, that the transcript of the record on appeal was not filed within 30 days after the
appeal had been perfected; second, that the undertaking on appeal was not filed within five
days after the service and filing of the notice of appeal; and, third, that the notice of appeal
was not filed within 60 days after the order denying appellants' motion for a new trial. As the
motion must be granted on the second ground, it will not be necessary to discuss either of the
other grounds assigned.
It appears that judgment was regularly entered and recorded on April 8, 1926, following a
verdict by the jury. Appellant moved for a new trial, which, on July 16, 1926, was denied by
the court. On September 23, 1926, a stipulation made by the attorneys for the parties was
filed, wherein appellants were given to and including the 23d day of September, 1926, in
which to file notice of appeal, and to and including the 30th day of September, 1926, in which
to file bill of exceptions, bond on appeal, bond to stay execution, and in which to perfect
appeal.
Notice of appeal from the judgment and order denying the motion for a new trial was filed
and served on said September 23, 1926. Thereafter, and on September 30, 1926, appellant
filed an undertaking on appeal and a bill of exceptions. They insist that their appeal was thus
perfected in due time.
Section 388 of the civil practice act (Rev. Laws, 5330) provides how an appeal may be
taken and perfected. It reads:
An appeal is taken by filing with the clerk of the court in which the judgment or order
appealed from is entered, a notice stating the appeal from the same or some specific part
thereof, and within three days thereafter serving a similar notice or copy thereof on the
adverse party or his attorney.
adverse party or his attorney. When the appeal is from the judgment and from an order
denying a motion for a new trial, one notice of appeal so specifying shall be sufficient. The
order of service is immaterial, but the appeal is ineffectual for any purpose unless within five
days after service of the notice of appeal an undertaking be filed, or a deposit of money be
made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse
party in writing.
1. As will be observed, the statute requiring the undertaking to be filed within five days
after service of the notice of appeal was not complied with. The undertaking was filed seven
days after such service. Counsel for appellant concedes this, but relies upon stipulation which
gave him until September 30, 1926, in which to file the undertaking, on which last-mentioned
date it was filed. Respondent now contends that the filing of the undertaking within the time
required by said section is a jurisdictional requirement, and one which could not be waived by
stipulation. It was held to be jurisdictional in a recent case decided by this court. Twilegar v.
Stevens, 49 Nev. 273, 244 P. 896. Being jurisdictional, can the requirement be waived, as
counsel for appellant contends was done by the stipulation? We think not. The giving of any
undertaking at all may be waived by the adverse party in writing, for such is the express
provision of the statute. The statute having provided for a waiver of one of the steps essential
to perfect an appeal, the plain implication is that as to all others no waiver was contemplated.
However, section 383 of the civil practice act (Rev. Laws, 5325) provides, that:
A judgment or order in a civil action, except when expressly made final by this act, may
be reviewed as prescribed by this title, and not otherwise.
2. The language and not otherwise amounts, in our opinion, to an express prohibition of
the waiver of any statutory requirements for taking and perfecting an appeal not provided for.
3. Besides, this court is committed to the principle quite generally recognized that
consent of the parties cannot confer jurisdiction.
quite generally recognized that consent of the parties cannot confer jurisdiction. Paul v.
Armstrong, 1 Nev. 82; Phillips v. Welch, 11 Nev. 187; Maitia v. Allied Land & Live Stock
Co. et al., 49 Nev. 451, 248 P. 893.
It is ordered that the appeal be dismissed.
____________
50 Nev. 157, 157 (1927) Humphrey v. Sagouspe
HUMPHREY v. SAGOUSPE
Nos. 2732, 2744
April 5, 1927. 254 P. 1074.
1. SalesBurden Was on Buyer Claiming Damages to Prove Seller's Refusal to Deliver
Sheep on Due Demand.
Burden of proof was on buyer claiming breach of contract for sale of sheep to prove seller's refusal to
deliver them upon demand duly made.
2. SalesBuyer of Sheep Could Not Recover Damages for Loss of Resale, where Seller
Performed Contract and Buyer Refused to Accept Sheep.
Buyer of sheep was not entitled to damages resulting from loss of resale at higher price, where court
on sufficient evidence found that seller had performed all conditions of contract and buyer refused to
accept sheep.
3. SalesSeller of Sheep, Wrongfully Refused by Buyer, May Recover Loss and Expense on
Resale.
Seller of sheep may resell them, where original buyer wrongfully refuses to accept them, and recover
loss and expenses of resale, the right to such damages not being dependent on passing of title from seller
to buyer under uniform sales act, secs. 51-54, 60 (Stats. 1915, c. 159), providing that seller's remedies
upon resale shall be coextensive with rights where property has passed to buyer.
4. SalesSeller Could Not Recover for Sheep Dying After Buyer's Default, Where it Could
Not Be Determined Whether Buyer Would Have Taken Sheep that Died.
Seller of sheep could not recover under uniform sales act, sec. 22, subd. (b) (Stats. 1915, c. 159),
providing that where delivery has been delayed goods are at risk of party in default, for death of seven
sheep occurring in interval between buyer's default and resale; there being no means of determining
whether buyer would have taken sheep which died.
5. CostsDefendant's Cost Bill Should Be Stricken, Where Plaintiff Recovers More Than
$300.
Plaintiff's motion to strike defendant's cost bill should be sustained, where plaintiff recovers more
than $300, under Rev.
Laws, 5377, providing that plaintiff shall be allowed costs in action for money where he recovers $300 or
more.
6. SalesSeller Cannot Retain Balance of Defaulting Buyer's Deposit Remaining After
Resale Expense is Deducted.
Uniform sales act, sec. 60 (Stats. 1915, c. 159), providing that seller shall not be liable to defaulting
buyer upon the contract or for any profit made by resale, but may recover from buyer damages for loss
occasioned by the breach, does not authorize seller to retain balance of initial installment of purchase
price after deducting the expenses of care and resale, as such retention would effect a forfeiture.
7. SalesSeller Waives Other Remedies on Contract by Reselling Goods After Buyer's
Default.
Seller electing to pursue remedy of resale of goods after buyer's default waives all other remedies he
may have on contract.
Costs15 C. J. sec. 46, p. 44, n. 45.
Sales35 Cyc. p. 251, n. 70; p. 296, n. 59; p. 520, n. 16; p. 521, n. 17; p. 522, n. 18, 19, 20, 21, 22; p. 526,
n. 59 (new); p. 598, n. 90; p. 599, n. 99; p. 606, n. 81 (new); p. 628, n. 64.
Appeal from Eighth Judicial District Court, Churchill County; Clark J. Guild, Judge.
Action by J. B. Humphrey against J. P. Sagouspe and another, copartners, in which
defendants filed a counterclaim. From the judgment, both parties appeal. Appeals
consolidated. Modified and affirmed. Rehearing denied.
A. L. Haight, for Sagouspe, et al.:
Though buyer has not received delivery and bargain is not conditional sale, he cannot
recover portion of price paid even if seller thereby obtains undeserved profit. Party who partly
performs and refuses to proceed to ultimate conclusionother party being ready to fulfill his
stipulationswill not be permitted to recover back what he has advanced or value of what he
has done. Williston, Sales, sec. 599j, p. 1502; 39 Cyc. 605; Rayfield v. Van Meter, 52 P. 666.
It is contrary to public policy to permit one to maintain action who has made part
performance, but stops short of completion of contract. Neis v. O'Brien, 41 P. 59; Whitherow
v. Whitherow, 16 Ohio, 238; Hapgood v. Shaw, 105 Mass. 276.
Ashbrook v. Hite, 75 Am. Dec. 468 is on all fours with present case; it even involved
contract for sale of sheep. Court refused to order return to buyer of amount paid upon
execution of contract and said it would be alarming doctrine to hold that plaintiff might
violate contract and make his own infraction basis of action for money had and received.
Every man who makes bad bargain would claim same right. Subsequent sale by defendant
does not alter case. Plaintiffs had renounced contract. Why should he not sell?
Counsel cites no principle of law to support his claim for refund, but accuses us of change
of front. His citations on election of remedies are not even remotely connected with facts of
case, but apply to actions by vendor to recover contract price from vendee in event of breach
by latter, etc.
Where buyer is in default unreasonable time, unpaid seller, having right of lien or stoppage
in transitu, may resell and is not liable for any profit, but may recover for loss occasioned by
breach. Uniform Sales Act, sec. 60. This disposes of any question of election of remedies.
Wm. M. Kearney, for Humphrey:
Cross appeal is taken on judgment roll alone. Only question that can be raised is whether
there is error in it. After limiting cross appeal to single point that judgment is contrary to
findings, we find defendants attempting to change front and set forth statement of facts which
are not included in this appeal. Findings that defendants exercised their right to resell follow
allegations of counterclaim and even attempt to follow wording of subd. 5, sec. 60 of uniform
sales act, 3 Rev. Laws, p. 3045. Compare this with statement in cross appeal that defendants
were unable to resell property until, etc.
Appeal disposes of itself when counterclaim is read in light of secs. 51-60 of sales act.
Defendants elected their remedy as they saw it, asserted right to resell for account of plaintiff,
and specialized damages. Court found they were not damaged except for some small items,
and disallowed other claims.
found they were not damaged except for some small items, and disallowed other claims. They
cannot now be permitted to retain $1,000 initial payment. Wood v. American Grocery Co.,
114 Atl. 756.
Great weight of authority is that if vendor elects to resell where buyer refuses to proceed
and is in default, he may recover only contract price plus reasonable expense pending resale.
House v. Babcock, 17 N. Y. Sup. 640; Smith v. Bloom, 141 NW. 32; Slaughter v. Marlow,
31 P. 547; Coffman v. Hampton, 37 Am. Dec. 511; 29 A. L. R. 63.
Counsel quote Williston on Sales, par. 599j, but omit latter part which says that equity
requires accounting for what was received by seller in excess of damage suffered. On page
1454, same author says that character of breach cannot change nature of contract, and damage
must be what injured party suffered through failure of defendant to perform at time agreed to.
Cost of performance must be deducted from contract price.
Having tied themselves to theory of resale, defendants cannot recover more than contract
price and expense of care, hence cannot retain initial payment. McDaniel v. Chiaramont, 122
P. 33.
OPINION
By order of court the above-entitled cases were, on the hearing of the appeals,
consolidated, and for convenience the parties will be referred to as designated in the court
below.
Plaintiff brought this action against the defendants for a breach of contract, alleging in his
complaint, inter alia, that they entered into a contract with him at Fallon, Nevada, on the 8th
day of September, 1924, by which they sold and agreed to deliver to him on or before October
1, 1924, 1,200 head of ewe sheep at $7.50 per head, or a total price of $9,000, 800 head of
said sheep to be 4 years of age, and 400 head to be 5 years of age; that defendants agreed that
plaintiff was to have the right to pick the number agreed upon out of a band of
defendants' sheep totaling about 1,500; that in consideration of said agreement and for
the purpose of making the initial purchase price of the sheep agreed upon the plaintiff
paid to the defendants on September S, 1924, the sum of $1,000, and it was mutually
agreed that the balance of the purchase price, to wit, $S,000, was to be paid upon the
delivery of the sheep to plaintiff.
have the right to pick the number agreed upon out of a band of defendants' sheep totaling
about 1,500; that in consideration of said agreement and for the purpose of making the initial
purchase price of the sheep agreed upon the plaintiff paid to the defendants on September 8,
1924, the sum of $1,000, and it was mutually agreed that the balance of the purchase price, to
wit, $8,000, was to be paid upon the delivery of the sheep to plaintiff. It is alleged that prior
to the 1st day of October, 1924, the plaintiff, relying upon the contract, entered into a contract
for the sale of said sheep to third parties at the price of $9 per head, or a total of $10,000, and
was prevented from performing the same by reason of the failure of the defendants to deliver
the said sheep to plaintiff.
It is alleged that prior to the 1st day of October, 1924, plaintiff made a demand upon
defendants for the delivery of said sheep, and upon their failure to deliver made a demand for
the return of said $1,000, and also made a demand for the sum of $1,800 alleged as damages
for the breach of said contract; that defendants refused to pay any part of said sum so
demanded. Judgment is prayed for in the sum of $2,800 and costs of suit.
The answer contains certain denials of the allegations of the complaint. It is also alleged
therein that at all times mentioned in the complaint and until the 20th of October, 1924, the
defendants were ready and willing to comply with the contract on their part, and during that
period made numerous and repeated efforts to deliver said sheep, but the plaintiff refused to
accept the same and wholly repudiated the contract; that on the 20th day of October plaintiff
was in default of the sale price, and on that date defendants exercised their right to resell said
sheep and did resell the same and received therefor the sum of $8,947.50.
By way of counterclaim defendants allege certain items of expense incurred in connection
with the sale and keeping of said sheep from October 1 to October 20, in the loss of several
thereof by death, and damages in being deprived of the use of $8,000, which plaintiff should
by the terms of the contract have paid on October 1, 1924, from the last-named date until
October 20, 1924.
1, 1924, from the last-named date until October 20, 1924. It is also alleged in the
counterclaim that certain valuable services were performed by defendants for plaintiff in and
about finding another purchaser for said sheep. The answer concludes with a prayer that
defendants have judgment against plaintiff for the sum of $807.78 special damages and
$1,000 general damages.
The case was tried before the court sitting without a jury. Judgment was rendered that
defendants recover from plaintiff the sum of $390.94, together with costs and disbursements
in the sum of $146.20, and that the defendants pay to plaintiff the balance remaining of the
sum of $1,000 after deducting therefrom the damages awarded to the defendants, and their
costs and disbursements.
The plaintiff and defendants have appealed, the former from that part of the judgment
which fails to award to him the remaining part of the initial payment of $1,000 on the
contract, and also from that part which fails to award to plaintiff $1,800 damages, and from
the order denying plaintiff's motion for a new trial, and the latter from that portion of the
judgment which requires them to pay to plaintiff the balance remaining of the initial payment
of $1,000 on the contract.
We will consider plaintiff's appeal first. The contract alleged in the answer was introduced
as evidence by plaintiff, and reads as follows:
J. B. Humphrey. 28.
Fallon, Sept. 8, 1924.
Total amount, $1,000.00.
Name: J. P. Sagouspe.
For a pick of 1,200 ewes out of about 1,500 at $7.50 per head, ages to be 800 at 4 years
old and 400 at 5 years old, and 300 acres of feed and the undersigned to pay for care until
Oct. 1, 1924. Received draft No. 28 in payment. [Signed] J. P. Sagouspe.
Draft No. 28 mentioned in the contract was for the sum of $1,000 and was received by the
defendant Sagouspe at the time of the execution of the contract as the initial payment thereon.
Defendants received the money on the draft.
money on the draft. The trial court found among other facts the following, to wit:
That the defendants duly performed all of the conditions of the contract and were at all
times until and including the 20th day of October, 1924, ready, able, and willing to deliver
said property to the plaintiff and tendered the same to plaintiff, but that the plaintiff at all
times without cause or reason therefor refused to accept said sheep or to pay for the same
pursuant to said agreement, and the plaintiff wholly repudiated said agreement and denied any
liability thereunder; that the sheep which defendants were ready, able, and willing to deliver
to the plaintiff in accordance with the terms of said contract, and of which they tendered
delivery in accordance with the terms of said contract, were in all respects of the kind, age,
and quality mentioned in said contract, and as represented to the plaintiff by the defendants to
be.
There is substantial evidence in the record tending to show that defendants tendered to
plaintiff the delivery of the required number of sheep of the ages and sex mentioned in the
contract. This evidence is furnished by defendant Sagouspe, his copartner, Cornell, and Mr.
Arranjo, who afterwards purchased the four and five year old sheep from the defendants.
Plaintiff concedes that he is bound by the finding of the trial court in this regard. But he
contends that the defendants breached the contract in two particulars: First, they refused to
deliver the sheep on the premises of the defendant near Fallon; second, they refused the
plaintiff the contractual right to select the sheep from a band of 1,500. There is no merit in the
first contention. It is not alleged in the complaint nor does it appear from the evidence that it
was the understanding of the parties that the sheep were to be delivered at a particular place.
If, however, as plaintiff contends, the allegation in the defendants' counterclaim that the
delivery of the sheep in question was to be made upon the premises of defendants is to be
given the effect that such was the understanding of the parties, it was incumbent on the
plaintiff to have proved that the sheep were not tendered for delivery on defendants'
premises before he can claim a breach of the contract in this regard.
to have proved that the sheep were not tendered for delivery on defendants' premises before
he can claim a breach of the contract in this regard. It is admitted that the sheep were on
defendants' premises when plaintiff's agent, Stoddard, first inspected them after the execution
of the contract, with the view of receiving them, and it does not appear that the field near
Stillwater where Stoddard and Frandsen last inspected them was not a part of defendants'
premises.
1. As to the second contention, that defendants refused plaintiff the right to select the
sheep, we think this was resolved against him by the judgment of the court. The right of
plaintiff to pick the sheep was a part of the contract, and the court could not have found for
defendants without first finding as a fact that plaintiff was accorded this privilege. The trial
court found, as more fully stated above, that the defendants duly performed all of the
conditions of the contract and were at all times until and including the 20th day of October,
1924, ready, able, and willing to deliver said property to the plaintiff and tendered the same to
plaintiff, etc. The evidence is conflicting on this phase of the case, but we think that there
was sufficient evidence from which the trial court could legitimately conclude that plaintiff's
agents were afforded a reasonable opportunity both at the ranch and later at the field near
Stillwater to pick the sheep according to the contract. The burden of proof was on the
plaintiff.
It would serve no useful purpose to detail the evidence, and we mention it only in a very
general way. The contract was executed by plaintiff's agent, Stoddard, and Sagouspe, one of
the defendants, in Fallon, on September 8, 1924. Subsequently and prior to October 1, 1924,
Stoddard agreed to sell the sheep to Messrs. Fallon and Blackwell for $9 per head, and in
company with them went to Sagouspe's ranch near Fallon, where the sheep were in corrals,
and examined the mouths of a number of the sheep for the purpose of ascertaining their ages.
Shortly afterward Stoddard and Mr.
Frandsen, a sheepman of considerable experience, who had been requested by plaintiff to
select the sheep, went with the defendant Sagouspe and his wife to a field near Stillwater
where the sheep then were. Stoddard and Blackwell testified that Sagouspe said at the ranch
on the first occasion that he would not permit them to cut out any more than 25. But there is
testimony which tends to show and from which the trial court had a right to conclude that
Stoddard's offer to pick the sheep was coupled with the condition that he was going to select a
less number than specified in the contract. Had Stoddard or Frandsen offered unconditionally
to pick the sheep and had been refused permission to do so by Sagouspe, there would have
been a clear breach of the contract. But he was under no obligation to deliver a less number
than specified in the contract and had a right to object to the selection on any such
assumption. Neither was he under any obligation to submit to the judgment of Mr. Casalet or
other disinterested parties in the selection. This duty was imposed on plaintiff or his agents,
and defendants' duty was to deliver the 1,200 sheep, when so selected, upon the payment of
the balance of the purchase price.
It is clear from the testimony of Mr. Stoddard, Mr. Blackwell, Mr. Frandsen, and Mr.
Sagouspe and Mr. Casalet that the three former gentlemen were of the opinion that 1,200
sheep of the ages specified in the contract were not in the band. It is established fact by the
uncontradicted testimony of Cornell that plaintiff told him that he would not think of taking
over 50 per cent of the sheep. This conclusion must have been based on information
furnished by his agents, Frandsen and Stoddard. Stress is placed by counsel for plaintiff on
the transaction at the field near Stillwater, and it is contended that Sagouspe's refusal to take
the sheep to the corrals at the ranch so as to enable Frandsen to pick them was a breach of the
contract. According to the testimony of the defendants, which the trial court accepted as
preponderating, there were 1,236 sheep at the field which, when examined by Cornell after
his conversation with plaintiff, he found to be, with one exception, of the ages specified in
the contract.
the field which, when examined by Cornell after his conversation with plaintiff, he found to
be, with one exception, of the ages specified in the contract.
Sagouspe refused to take them to the corral, a distance of seven miles, he said, after
Frandsen had told him he might throw out 300 of them. Frandsen testified as above, stated
that he told Sagouspe there might be 150 or might be 300 at least to go out. Here, as at the
ranch on the former occasion, the trial court could have concluded that there was no
unconditional offer to pick the sheep to be delivered under the terms of the contract if
Sagouspe would take them to the corrals. As to whether the latter refused to permit them to
pick the sheep at the field, the evidence is in conflict, but, as Sagouspe's testimony supports
the court's finding, it cannot be disturbed. He said he told them: Here are the sheep, and I
says, I will corner them out in this corner, two ditches running in a square where the camp is,
with lots of tule all around. I will put them in this corner. I will catch as many as you want
until you are satisfied. Frandsen says, No; I want them in a corral. And again, the witness
said: I did. I offer myself and my herder to catch as many as he want right in there. He
refuse.
The contract was not breached by Sagouspe's refusal to drive the sheep seven miles to a
corral, firstly, because there was no genuine offer to pick the 1,200 sheep covered by the
contract if taken to the corral; and, secondly, because there is nothing in the pleadings or in
the contract to the effect that it was the understanding of the parties that the sheep were to be
picked out in a corral. While the task could probably have been accomplished with less
difficulty at a corral designed for that purpose, still, it can be inferred from the testimony of
Sagouspe and Cornell that it would not have been impracticable to have done it at the field in
the corner where the former said the ditches formed a square. Cornell said the place was a
kind of a corral; that they counted the sheep there and caught and examined the mouths of
about 100. On the whole we are satisfied, as previously stated, that the evidence is sufficient
to bear the effect given it by the trial court in finding that defendants duly performed all
the conditions of the contract.
to bear the effect given it by the trial court in finding that defendants duly performed all the
conditions of the contract. As in our opinion the question is one of whether the evidence is
sufficient to sustain the findings of the court, it is not necessary for us to review the cases
cited by plaintiff.
2. There was no error in the action of the trial court in refusing plaintiff's proposed finding
on this phase of the case. The court having found on sufficient evidence to the effect that
defendants duly performed all of the conditions of the contract and that at all times without
cause or reason thereafter plaintiff refused to accept said sheep, it follows that there could
have been no error in its failing to award plaintiff any part of the $1,800 claimed in the
complaint as damages sustained by loss of the resale of the sheep, or in refusing plaintiff's
proposed findings in this regard.
3. It is urged that defendants were not entitled to recover on their counterclaim for any
damages alleged to have been sustained by reason of plaintiff's alleged default on the contract
in connection with the care and keeping of said sheep from October 1, 1924, to their resale on
October 20, 1924, and in connection with the resale, for the reason that title to sheep had not
passed to plaintiff. The right to recover damages in such a case is not dependent upon the
passing of title from the seller to the buyer. Damages may be recovered in a proper case
irrespective of such contingency. The great weight of authority bears out this statement of the
rule in 35 Cyc. pp. 520, 521:
In the United States the rule is well settled that where the goods are in his possession the
seller may, without committing a breach of the contract, resell the goods if the original buyer
refuses without justifiable cause to receive and pay for them, and may recover the loss
sustained in the difference between the contract price and the price received on resale, and the
expenses of making the sale, and in addition the cost of storage, interest, and in allowance for
his time as agent in reselling. In making such resale the seller acts as agent of the buyer, but
not in such a literal sense as to confer on the buyer any title or interest in the property, and
the seller cannot as agent of the buyer purchase additional goods to induce the sale of the
first lot and charge the buyer with the loss sustained on the whole."
the buyer any title or interest in the property, and the seller cannot as agent of the buyer
purchase additional goods to induce the sale of the first lot and charge the buyer with the loss
sustained on the whole.
Mr. Williston, in discussing the question of the seller's right of resale where the property in
the goods had previously passed to the buyer, observes: The seller has at least as great rights
if the resale is made before the transfer of the property. Accordingly, he says, in the
discussion by the courts of what is necessary for a proper resale before the transfer, no
distinction generally seems to be observed between resale before the transfer of the property
and after, and it seems there is no necessity of making such distinction, except in regard to the
time when the resale must be made. 2 Williston on Sales (7th ed.), sec. 546, p. 1370.
However, under the circumstances of this case, defendants' right to resell the property,
notwithstanding title had not passed to plaintiff, and recover damages for any loss sustained
because of the breach of the contract (or the sale) is found in the uniform sales act of this state
(Stats. 1915, c. 159). By section 51 of said act it is provided that:
If the neglect or refusal of the buyer to take delivery amounts to a repudiation or breach
of the entire contract, the seller shall have the rights against the goods and on the contract
hereinafter provided in favor of the seller when the buyer is in default.
An unpaid seller of goods is deemed to be such within the meaning of the act when the
whole of the price has not been paid or tendered. Section 52. By the provisions of section 53,
an unpaid seller, whether title has passed to the buyer or not, is given a right of resale as
limited by the act, and one from whom title has passed is given a lien on the goods or right to
retain them for the price while he is in possession of them. Paragraph 2 of said section 53
provides:
Where the property in goods has not passed to the buyer, the unpaid seller has, in addition
to his other remedies, a right of withholding delivery similar to and coextensive with his
rights of lien and stoppage in transitu where the property has passed to the buyer."
transitu where the property has passed to the buyer.
By paragraph 1 of section 54 the right of lien may be exercised (a) where the goods have
been sold without any stipulation as to credit; (b) where the goods have been sold on credit,
but the term of credit has expired; (c) where the buyer becomes insolvent.
Section 60 in part provides:
(1) Where the goods are of a perishable nature, or where the seller expressly reserves the
right of resale in case the buyer should make default, or where the buyer has been in default
in the payment of the price an unreasonable time, an unpaid seller having a right of lien or
having stopped the goods in transitu may resell the goods. He shall not thereafter be liable to
the original buyer upon the contract to sell or the sale or for any profit made by such resale,
but may recover from the buyer damages for any loss occasioned by the breach of the contract
or the sale.
4. A reference to these provisions of the uniform sales act shows that plaintiff's contention
that because the contract was executory defendants were without right to resell and recover
for damages sustained is untenable. The plaintiff was in default after October 1, 1924. On
October 20, 1924, defendants sold the 1,200 sheep to Arranjo and received the contract price;
consequently no damage was sustained in this respect. No question is made by plaintiff that
the time intervening between the default and the resale was not an unreasonable time within
the meaning of section 60 of the sales act. The $390.94 awarded defendants consists of the
following items, namely, for damages actually incurred by defendants in caring for and
keeping the sheep in question from the 1st day of October, 1924, to the 20th day of October,
1924, $125; for the services of a herder, $86.67; for the services of a camp tender, $66.67; for
the loss of 7 sheep at the value of $7.50 per head, $52.50; for trouble and expense in securing
another purchase, $60. The evidence discloses that such damages were actually sustained by
the defendants, and they were recoverable by reason of plaintiff's neglect or refusal to take
delivery of the sheep, with the exception of the sum allowed for the loss of 7 sheep.
exception of the sum allowed for the loss of 7 sheep. The loss of these sheep was certainly
not caused directly or indirectly by plaintiff's failure to take delivery, and it appears that there
were more than 1,200 sheep of the ages specified in defendants' band. They were able after
the loss of 7 head to sell 1,200 to Arranjo. Counsel for defendants, in contending for this item
of damages, relies upon subdivision (b) of section 22 of the uniform sales act, which reads:
Where delivery has been delayed through the fault of either buyer or seller the goods are
at the risk of the party in fault as regards any loss which might not have accrued but for such
default.
This provision does not help defendants. As there were more than 1,200 sheep of the ages
specified in the band, it could not be established as a matter of fact that plaintiff, if he had
exercised his right to select the sheep, would have selected these seven sheep. It could not be
established that these particular sheep were, after default, at the risk of the seller as
contemplated by the statute. Consequently no basis can be found in the evidence to warrant
the court in concluding that plaintiff was liable for their loss. The objection to the evidence
offered on this phase of damages should have been sustained.
Plaintiff has assigned error in the rulings of the trial court in other respects concerning the
overruling of the demurrer to defendant's counterclaim and the admission and rejection of
evidence, but we find no merit in these objections.
5. Plaintiff's motion to strike defendants' cost bill should have been sustained. He was the
prevailing party in the court below and recovered more than $300. Consequently he was
entitled to his costs in the court below under section 5377 of the Revised Laws of Nevada.
Counsel for defendants concede this, his contention in this regard being that defendants
should have been the prevailing party in the court below, and that they expect ultimately to
recover their costs as such by the judgment of this court on their appeal. We will now
consider defendants' appeal.
6, 7. The sole question on this appeal is whether the trial court could award plaintiff any
portion of the $1,000 paid on the purchase price of the sheep. Defendants contend that such
recovery was not authorized and that the findings to the effect as previously stated, that
defendants performed all the conditions of the contract and that plaintiff refused to take
delivery of the sheep, do not support that part of the judgment. They rely upon authorities
cited and principally upon subdivision 1 of section 60 of the uniform sales act previously
quoted, and argue that this provision giving the seller the right to resell the goods also entitled
him in case of resale to retain such sum as may have been paid on the purchase price by the
original buyer; that the clause in such provision which reads, he shall not thereafter be liable
to the original buyer upon the contract to sell or the sale or for any profit made by such resale,
but may recover from the buyer damages for any loss occasioned by the breach of the contract
or the sale, relieves him from all liability, including the return of money paid on the contract.
We do not so construe the provision. As we view it the clause merely absolves a seller, who,
on default of the buyer, has elected to resell, from damages and from liability to the buyer for
profits on the resale and affords a remedy by which he can be made whole for any damages he
may have sustained by reason of the breach of the contract or in making the resale. It does not
contemplate a forfeiture in addition to full compensation. The law abhors a forfeiture, and
one will not be presumed in the absence of a clear provision. Defendants, as will be seen from
their counterclaim, have elected to pursue the remedy of resale as afforded by the sales act
and are limited by the act to recover from plaintiff only such damages as may have been
actually occasioned by the breach of the contract. By pursuing this remedy he waived all other
remedies he may have had on the contract.
The cases cited by counsel for defendants wherein it was held that a buyer in default could
not recover money advanced on the contract are not from states which have adopted the
uniform sales act, nor are they on facts analogous to the instant case, to wit, a seller who,
on resale, has received the full contract price, and damages to the extent of saving him
from incidental loss attendant on such resale.
analogous to the instant case, to wit, a seller who, on resale, has received the full contract
price, and damages to the extent of saving him from incidental loss attendant on such resale.
The rule he contends for has been followed in conditional sales, but, as remarked by Mr.
Williston:
To allow him (the seller) not only to reclaim the goods and resell them as his own, but
also to retain part payment made by the buyer to an extent which more than reimburses him,
obviously imposes a forfeiture on the buyer. 2 Williston on Sales, p. 1381.
And again, the author, in discussing the question of recovery by a buyer in default after
paying an installment of the price, says:
And so far as principles established in courts of law are concerned, it may be said that
the party who has advanced money, or done an act in part performance of the agreement, and
then stops short and refuses to proceed to its ultimate conclusion, the other party being ready
and willing to proceed and fulfill all his stipulations according to the contract, will not be
permitted to recover back what has thus been advanced or done.' But as indicated in the
discussion in relation to conditional sales, the application of this principle may involve
serious forfeiture, and the application of equitable principles should require, where this is
clearly established, an accounting for the excess of what was received by the seller in excess
of the damage which he suffered. (The italics are ours.) 2 Williston on Sales, p. 1502.
As indicated in the note following this paragraph, this conclusion was reached in Sabas v.
Gregory, 91 Conn. 26, 98 A. 293. See, also, Daniels v. Morris, 65 Or. 289, 130 P. 397, 132 P.
958.
By the express terms of the uniform sales act, sec. 60, the seller who has exercised his
right of resale is not liable for any profit made thereon, but we find nothing to indicate that it
was intended that he should also, after fully reimbursing himself, retain all moneys paid on
the contract.
The appeal of defendants is therefore without merit, and it is ordered that the judgment
of the lower court, after deducting therefrom the sum of $52.50 and striking defendants'
cost bill, be affirmed as to both appeals.
and it is ordered that the judgment of the lower court, after deducting therefrom the sum of
$52.50 and striking defendants' cost bill, be affirmed as to both appeals.
July 19, 1927.
Per Curiam:
Rehearing denied.
____________
50 Nev. 173, 173 (1927) Tonopah Sewer & Drainage Co. v. Nye County
TONOPAH SEWER & DRAINAGE CO.
v. NYE COUNTY
No. 2736
April 7, 1927. 254 P. 696.
1. Public Service CommissionsCommission May Change Franchise Rates for County
Buildings.
Public service commission has jurisdiction and authority to fix and authorize sewer rates for county
buildings, notwithstanding franchise contract between county commissioners and sewer company,
providing for free service, and provision in act creating public service commission that it should not
affect existing contracts, where franchise contract was altered to allow change in rates when it was
ratified.
2. Municipal CorporationsState May Modify or Set Aside Acts of Municipality Without
Consent.
State may enlarge, modify, diminish, or set aside acts of municipality, or one of its political
subdivisions, without their consent.
3. CountiesState in Ratifying Franchise Contract Between County and Sewer Company
May Make Changes Therein.
In ratifying franchise contract between sewer company and county commissioners, state had power to
make important changes therein.
4. Public Service CommissionsRates Are Not Suspended Pending Rehearing.
Filing and granting of petition for rehearing as to sewer rates fixed by public service commission did
not have effect of suspending operation of rates theretofore established by commission's order, in view of
public service commission act 1919 (Stats. 1919, c. 109), secs. 32, 33, since direct and specific order
would be necessary to cause such suspension.
5. Public Service CommissionsReasonableness of Sewer Rates for County Buildings Will
Not Be Considered in Sewer Company's Action to Recover Amount Due.
In action by sewer company against county to recover sum claimed for sewer service furnished,
whether rates fixed by commission were exorbitant and unreasonable is collateral question and will not
be considered.
Counties15 C. J. sec. 53, p. 421, n. 15.
Drains19 C. J. sec. 37, p. 627, n. 52 (new).
Municipal Corporations28 Cyc. p. 283, n. 2.
Appeal from Fifth Judicial District Court, Nye County; J. Emmett Walsh, Judge.
Action by the Tonopah Sewer & Drainage Company against Nye County. Judgment for
plaintiff, and defendant appeals. Affirmed.
Joseph T. Murphy, District Attorney, for Appellant:
Whether law is valid as exercise of police power, or void as impairing obligation of
contract, depends upon nature of contract and power of government to make it. Difference
between two classes of cases is that which results from want of authority to barter away
police power, and undoubted right of government to enter into binding contract. If contract is
valid and innocuous, police power cannot be invoked. Grand Trunk v. South Bend, 57 L. Ed.
633.
Reputable cases hold charter rate agreements binding and irrevocable, even under acts
which do not withhold power from commission to change. City of Cincinnati v. Utility
Commission, P. U. R. 1919, c. 119; 6 R. C. L. 342; 12 C. J. 1009; 194 U. S. 534.
It is argued that by act of ratification, power was given commission to change rates. This is
true, but no power was given to change conditions of franchise, nor to create rate expressly
left out. There was no rate, hence none could be changed. Stats. 1911, c. 44, ratified contract
but expressly withheld power over prior contract. No law impairing obligation of contract
shall ever be passed. Nev. Const. art I, sec. 15; U. S. Const. art. I, sec. 10.
Public service commission is creature of statute with limited jurisdiction. 3 Rev. Laws, p.
3154. Its powers can be exercised only in mode prescribed, and cannot be enlarged.
Umbarger v. Chaboya, 49 Cal. 525. It cannot interfere with contracts existing at time of its
creation. 3 Rev. Laws, p. 3159, sec. 15. At that time there was existing contract between
water company and Tonopah and Nye County, later ratified by legislature. Stats. 1911, c. 44.
No change was asked until 1922. Intention, shown by long continued acquiescence, governs
courts in interpretation. Van Doren v. Tjader, 1 Nev. 380; 9 Cyc. 577, 588.
Action was premature. Plaintiff must show he has exhausted his remedy with commission.
Stats. 1919, c. 109, sec. 33; City of Superior v. Duluth Ry. Co., 142 NW. 184.
Neither by constitutional provision nor legislative act can state impair existing contract.
Gunn v. Barry, 21 L. Ed. 212; P. U. R. 1919d, 239.
Where city, acting through its authority, has contracted for public utility service, its
contract is binding and may not be repudiated even though performance results in loss.
Parties, including municipalities, must be left free to make lawful contracts, and it is duty of
courts to enforce them. Logansport Gas Co. v. Peru, 89 Fed. 185; Pond, Public Utilities, secs.
431-432; Moorehead v. Union Light, etc. Co., 255 Fed. 920.
Thatcher & Woodburn, for Respondent:
Whether rates are unreasonable is not before court. When no bill of exceptions is taken
presumption is that decision and findings are supported by evidence. Young v. Holman, 47
Nev. 4. This action is for collection of rentals pursuant to rates established by commission in
its order. Decision upon that question was committed by legislature to commission. The
utility company is entitled to initiate its rate. Stats. 1919, 203-204, sec. 14. Schedule may be
suspended until hearing for certain periods, but when fixed is in force until modified by
commission. Secs. 32-33.
Section 33 provides for court proceedings to set aside order of commission. No injunction
shall issue suspending order except upon notice to commission. Provision as to time for
commencing action is mandatory. Atlantic City v. Commission, 125 Atl. 479; P. U. R. 1926a,
103.
Rates established by order of commission, January 23, 1922, are lawful and there can be
no collateral inquiry in this proceeding as to whether they are reasonable. Question is
foreclosed and can be opened only by application to commission to change. Springfield, etc.
Co. v. Philadelphia, 131 Atl. 716; Suburban W. Co. v. Oakmont Burrough, 110 Atl. 778.
Legislature did not give unqualified approval to contract of 1906, but declared rates
subject to regulation. Stats. 1911, 43. There is provision giving Tonopah right to connect its
public buildings free of charge, but buildings here in controversy belong to Nye County.
There is clear distinction. Ely Water Co. v. White Pine Co., 38 Nev. 472.
Regulation of utility rates does not violate obligation of contract. 248 U. S. 372; 141 P. 620;
204 SW. 1074; 59 L. Ed. 1254
Public utility contracts are subject to police power. Transbarger v. C. & A. R. R., 156 SW.
694. Their regulation is legislative function. Police power should not be bartered away. New
Orleans, etc. Co. v. Louisiana, etc. Co., L. Ed. 516.
Provisions for free service are not favored, because they place unjust burdens on rate-payer
which should fall on whole community. Charleston v. Commission, 103 SE. 673; L. R. A.
1918d, 907.
OPINION
By the Court, Orr, District Judge:
The Tonopah Sewer Company, plaintiff in the court below, brought this action against Nye
County to recover the sum of $832. Said sum being claimed for sewer service furnished
certain departments or buildings of Nye County, to wit, Nye County courthouse, Nye County
hospital, and Nye County public library.
County hospital, and Nye County public library. The lower court entered judgment in favor of
the sewer company, and from said judgment Nye County has prosecuted this appeal.
1. It is the contention of appellant that it is not liable for sewage service furnished said
public buildings because of an exemption from such payment, contained in a certain franchise
contract entered into by the county commissioners of Nye County and one F. S. Lack,
predecessor in interest of the sewer company. The franchise contract was entered into May 1,
1905, and was ratified by the legislature of the State of Nevada in the year 1911.
In the franchise contract as entered into by the county commissioners and Lack and as later
ratified by the legislature, there appears in the schedule of rates fixed this provision:
Schoolhouses and public buildings, free use given. On January 23, 1922, the public service
commission of the State of Nevada, pursuant to proceedings duly and regularly had, fixed a
rate of $84 for the Nye County courthouse, $20 for the Nye County hospital, and $5 for the
Nye County public library. The important question in this case is: Did the public service
commission have jurisdiction and authority to fix and authorize such rates in view of the
contract theretofore mentioned? It is our opinion that it had.
2. There is no longer any question but that a state may enlarge, modify, diminish, or set
aside the acts of a municipality or one of its political subdivisions, without their consent. This
is based upon the theory that the state is supreme and the action of the state in so doing is
binding upon the municipality or political subdivision. Pawhuska v. Pawhuska Oil & Gas
Co., 250 U. S. 394, 39 S. Ct. 526, 63 L. Ed. 1054; City of Trenton v. State of New Jersey, 362
U. S. 182, 43 S. Ct. 534, 67 L. Ed. 937, 29 A. L. R. 1471; City of Salem v. Salem Water,
Light & Power Co. (C. C. A.) 255 F. 295; Laramie County v. Albany County, 92 U.S. 307, 23
L. Ed. 552; Hunter v. City of Pittsburgh, 207 U. S. 161, 28 S. Ct. 40, 52 L. Ed. 151; City of
Sapulpa v. Oklahoma Natural Gas Co., 258 U. S. 608, 42 S. Ct. 316, 66 L. Ed.
788. The state may exercise this right through its duly constituted commission, by delegating
the authority to it. A number of recent cases hold that the commission in the exercise of this
authority may annul a provision in a franchise contract providing for free service to be
performed by a public utility. Winfield v. Public Service Commission of Indiana, 187 Ind. 53,
118 NE. 531; City of Hillsboro v. Public Service of Oregon, 97 Or. 320, 187 P. 617, 192 P.
390; Springfield Consolidated Water Co. v. City of Philadelphia, 285 Pa. 172, 131 A. 716;
New Orleans v. New Orleans Water Works, 142 U. S. 79, 12 S. Ct. 142, 35 L. Ed. 943;
Western Oklahoma Gas & Fuel Co. v. City of Duncan (Okl. Sup.), 251 Pa. 37.
If the State of Nevada had unqualifiedly delegated to its public service commission the
right to control and regulate rates, we might stop here. However, we find in the legislative
acts of 1911 (Stats. 1911, c. 162) and 1919 (Stats. 1919, c. 109) this provision:
This [speaking of power delegated to commission] * * * shall not have the effect of
suspending, rescinding, invalidating, or in any way affecting contracts existing on March 23,
1911.
The franchise contract, as ratified, was in existence at the time of the creation of the public
service commission. Now the inquiry is: Does the changing of the rate relative to the said Nye
County public buildings violate the said franchise contract as ratified?
3. It is clear that the fixing of a charge for sewer service rendered said public buildings
would be contrary to the terms of the original contract as entered into by the county
commissioners and F. S. Lack, but in ratifying the contract the state saw fit to make important
changes therein. Under the well-established law, the state possessed the power to do this. See
authorities hereinbefore cited. The contract as entered into by the county commissioners and
F. S. Lack in 1905 became merged in the contract as ratified by the legislature in 1911, and it
is with the ratified contract we are compelled to deal. In ratifying the 1905 contract, the state
reserved to its duly constituted public service commission or similar body the right to
change any of the rates fixed in the schedule found in said ratified contract.
or similar body the right to change any of the rates fixed in the schedule found in said ratified
contract. It then follows that the public service commission, in establishing the rate on the
public buildings in question here, acted not only in accordance with the power vested under
the acts creating it, but in accordance with the contract itself. Under the power reserved to the
commission by the ratified contract, there can be no question that the commission had
jurisdiction to change the rates for private buildings, and the very same right in the very same
terms exists as to the public buildings enumerated.
There is a provision in the ratified contract, not a part of the schedule of rates, which
purports to give free sewer service to the buildings belonging to the town of Tonopah. With
that provision we have no concern, as the buildings in question here do not belong to the
town of Tonopah, but to Nye County. The contention that the public service commission was
without authority to fix the rate for service furnished the public buildings in question is
without merit.
It is urged that the bringing of this suit was premature, because the order of the
commission fixing the rate had not become final and that said rates had been suspended. This
contention is based on the fact that the commission, after having ordered the rates put into
effect, had granted a rehearing. The sewer company sought to initiate a new schedule of rates.
It gave the required notice and made the required posting. Before the date set for the new
schedule, as proposed by the sewer company, was to become effective, the public service
commission suspended them in order to permit a hearing thereon. A hearing was had and an
order issued by the commission retaining in effect the old schedule, that is, the schedule in
effect before the sewer company attempted to make the change, with the exception that
authorization was given the sewer company to make the charges for service rendered the
public buildings hereinbefore enumerated. This order of the commission was made effective
January 23, 1922. Subsequent to the making and putting in effect of the rates the respective
parties petitioned for a rehearing which was granted.
the respective parties petitioned for a rehearing which was granted. A rehearing, however,
was never had.
4. We do not believe, in view of section 32 of the public service commission act (Statutes
1919, c. 109), that the filing of a petition for a rehearing and the order granting same had the
effect of suspending the operation of the rates theretofore established by the order of January
23, 1922. To cause such a suspension would require a direct and specific order of the
commission. Section 32 provides that the rates fixed by the commission are in force until set
aside, changed or modified by the commission, or by a court pursuant to section 33. No such
order was made either by the commission or by a court. The rates became effective pursuant
to an order of the commission. For a suspension to have taken place more must have occurred
than the filing of the petition for rehearing and an order granting it. Some express order of
suspension was necessary, and we find no provision for it in the order of the commission
granting a rehearing, nor is there evidence of such intention on the part of the commission in
any of the proceedings before us.
5. It is also urged that the rates fixed by the commission are exorbitant and unreasonable.
That question is collateral to the inquiry before us. The law provides the course to be pursued
in the event a party is dissatisfied with the findings of the commission. It is no part of this
proceeding, and we cannot entertain it.
The judgment is affirmed.
NoteSanders, C. J., being disqualified from sitting in this case, the Governor designated
Hon. William E. Orr, District Judge, to act in his stead.
____________
50 Nev. 181, 181 (1927) Kondas v. Washoe County Bank
KONDAS v. WASHOE COUNTY BANK
No. 2735
April 11, 1927. 254 P. 1080.
ON MOTION TO DISMISS APPEALS
1. Appeal and ErrorAggrieved Party.
Within the meaning of Rev. Laws, 5327, providing that aggrieved parties may appeal, an aggrieved
party is one who is injured.
2. Appeal and ErrorMovant is Aggrieved as to Adverse Portion of Order.
In action by buyer of two bills of exchange drawn on foreign bank, against seller for their refusal
through seller's fault, wherein judgment was rendered for defendant and plaintiff's motion for new trial
was granted as concerned one draft and refused as concerned the other, plaintiff held aggrieved as to
adverse portion of order, within the meaning of Rev. Laws, 5327, providing that aggrieved parties may
appeal; section 5329 being inapplicable, since merely fixing the time for taking an appeal.
3. New TrialNotice of Decision.
Procuring by appellant of an order directing appellee to prepare findings of fact for an appeal from an
order denying a new trial held not a waiver of written notice of the adverse decision, required by Stats.
1921, c. 86, providing that a party must file and serve notice of intention to move for new trial within ten
days after written notice of an adverse decision.
4. New TrialNotice of Decision.
Under Stats. 1921, c. 86, providing that a party intending to move for a new trial must file and serve
notice of his intention within ten days after written notice of the adverse decision, actual notice of adverse
decision is insufficient, and written notice must be given unless waived.
5. New TrialIntention to Waive Notice Must Be Clearly Shown.
Notice of adverse decision required by Stats. 1921, c. 86, providing that party intending to move for a
new trial must give notice of his intention within ten days after written notice of adverse decision, is not
waived, in absence of manifestation of clear and unequivocal intention to do so.
6. Appeal and ErrorJudgment Dates from Announcement.
Within Rev. Laws, 5329, allowing appeal from final judgment within six months from rendition of
final judgment, the date of the final judgment is the date of its announcement in open court rather than the
date when formal findings and judgment are signed.
7. Appeal and ErrorAppeal from Judgment Out of Time Is Not Timely Because Made
Jointly with Timely Appeal from Order on Motion for New Trial.
That appeal from final judgment is taken jointly with timely appeal from order entered on
motion for new trial does not render the appeal from the judgment timely,
does not render the appeal from the judgment timely, where it is not taken within six months from the
date of the rendition of the judgment as required by Rev. Laws, 5329, notwithstanding sections 5328,
5330, 5359.
8. Appeal and ErrorTo Modify Statute by Subsequent Act, Intention Must Clearly Appear,
or at Least Acts Must Be Clearly Conflicting.
Court will not construe Rev. Laws, 5329, requiring appeal from judgment to be taken within six
months after the rendition of the judgment, to be modified even by subsequent act, unless it clearly
appear that the subsequent act was intended to modify it, or at least they are so inconsistent as to be
clearly in conflict
9. StatutesTwo Sections or Acts in Pari Materia Must Be Harmonized.
Court must harmonize two sections or two acts which are pari materia.
10. StatutesRepeals by Implication Are Not Favored.
Repeals by implication are not favored, but the presumption is always against intention to repeal
where express terms are not used.
Aggrieved2 C. J. p. 973, n. 29.
Appeal and Error3 C. J. sec. 462, p. 613, n. 26; sec. 493, p. 633, n. 16; sec. 494, p. 635, n. 37; sec. 1033,
p. 1042, n. 18; sec. 1050, p. 1053, n. 12; sec. 1054, p. 1055, n. 34.
New Trial29 Cyc. p. 939, n. 57, 59, 61; p. 940, n. 62.
Statutes36 Cyc. p. 1071, n. 25; p. 1072, n. 26; p. 1149, n. 39.
Waiver40 Cyc. p. 261, n. 12.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Action by John Kondas against the Washoe County Bank. From an adverse judgment and
an order denying his motion for new trial, plaintiff appealed. On motions to dismiss the
appeals. Appeal from the judgment dismissed. Motion to dismiss appeal from the order
entered on the motion for a new trial denied.
Price & Hawkins, for Movant:
Appeal may be taken from final judgment within six months after rendition of judgment
(Rev. Laws, 5329), by filing with clerk notice stating appeal and within three days thereafter
serving similar notice on adverse party. Rev. Laws, 5330. Necessity for compliance is
jurisdictional. Appeal must be taken within time and in manner prescribed.
in manner prescribed. Twilegar v. Stevens, 49 Nev. 273; Kingsbury v. Copren, 47 Nev.
466; Clark v. Turner, 42 Nev. 450.
Appeal may be taken from order granting or refusing new trial within sixty days after order is
made and entered in minutes. Rev. Laws, 5329. Plaintiff moved for new trial. There was no
order refusing it. On contrary, new trial was ordered, limited to bill No. 3503, from which
order as written plaintiff does not attempt to appeal, and from which he has no right of appeal
because appeal lies only from order granting or refusing new trial. Order was in plaintiff's
favor; he is not, therefore, aggrieved in legal sense. Schino v. Cinquina, 94 P. 83.
As to legal question of waiving right to notice of decision in connection with filing and
serving notice of intention, see Green v. Hooper, 41 Nev. 2.
Huskey & Souter, for Appellant:
Judgment is final determination of rights of parties in action or proceeding. Rev. Laws,
5328. To say that oral pronouncement by court is final determination is incorrect. In this case,
controversy over proper findings lasted for months. Final determination took place June 13;
oral pronouncement was on April 22. What findings would be were not known until latter
date. Rule in Central Trust Co. v. Holmes Mng. Co., 30 Nev. 437, though of long standing, is
so contrary to plain wording of statute it should be changed. Anyway, mere use of date in
notice of appeal is surplusage and may be disregarded or corrected. And again, though
appellant may seem too late, under Rev. Laws, 5328, where appeal is taken on insufficiency
of evidence or alleged errors in ruling, motion for new trial must be made and determined
before appeal is taken. By appealing without moving for new trial, right to new trial is
waived.
When appeal is from judgment and order denying new trial, one notice is sufficient. Rev.
Laws, 5330.
Sections 5228, 5229, and 5330 must be read together. Motion for new trial was not
determined within six months after rendition of judgment.
Court limited new trial to one note. For movant to say court did not refuse new trial as to
other note is facetious.
OPINION
The plaintiff has appealed from the judgment against him and from an order denying a
motion for a new trial.
The case is before the court on motions to dismiss the appeals of the plaintiff. The parties
will be referred to as they were designated in the lower court.
The court rendered its decision and judgment in open court on April 22, 1925, and on June
13, 1925, signed formal findings of fact and judgment order. On April 27, 1925, the plaintiff
obtained from the court an order directing the defendant to prepare findings of fact. On April
29, 1925, defendant served on plaintiff notice of the decision and judgment rendered on April
22. On May 8, 1925, plaintiff served and filed his notice of intention to move for a new trial.
On November 23, 1925, the court entered its order on plaintiff's motion for a new trial.
To a full understanding of the matter under consideration a brief statement is necessary.
The complaint alleges that on September 6, 1919, the defendant, for value, issued to the
plaintiff two bills of exchange on the National Bank of Greece, at Athens, one being for 3,250
drachmas and the other being for 81,255 drachmas. On or about September 28, 1919, the two
bills were presented to the National Bank of Greece, for acceptance, which was refused, as
claimed, through the fault of the defendant. Damages demanded. Though plaintiff's demands
are presented in seven causes of action, we think the above statement will suffice. The trial
court rendered judgment in favor of the defendant.
Upon consideration of plaintiff's motion for a new trial, the court, on November 23, 1925,
filed a written decision, in which it stated, inter alia:
The court is satisfied with his decision as to draft No. 3504 for 8,125 drachmas,
erroneously written by the issuing bank for 81,255 drachmas, but is dissatisfied with the
decision as to draft No. 3503 for 3,250 drachmas. This latter draft had been altered by the
issuing bank, the word lires having been first written and scratched and the word
drachmas then written, which, under the testimony of banking experts, gave the instrument
but a discretionary value at best, under banking practice; the drawee bank, the National Bank
of Greece, at Athens, refusing to pay in this instance, and having returned the said draft to
Kondas, the payee, and in its letter discharging itself of responsibility.
Plaintiff payee paid $600 for this 3,250 drachma draft, and was entitled to an instrument
free from such error as would leave payment thereof to the discretion of the drawee bank on
presentment.
The issues involved as to the two drafts are distinct and separable.
It is ordered that a new trial be had herein, hereby specifically limited to the matters
involved in and concerning bill of exchange No. 3503, issued by the Washoe County Bank to
John Kondas September 6, 1919, specifically described and referred to in the pleadings
herein.
The point which we will first consider is that a party can appeal only from an adverse
order, and that in this instance the order made on the motion for a new trial is favorable to the
plaintiff. The notice of appeal which was served and filed January 20, 1926, so far as material
to this inquiry, is to the effect that the plaintiff appeals from the judgment and order as
follows:
You, and each of you, will please take notice that the plaintiff in the above-entitled action
does hereby appeal to the Supreme Court of the State of Nevada from the judgment made and
entered in the above-entitled district court in the above-entitled cause on the 13th day of
June, 1925,
of June, 1925, in favor of the defendant and against the plaintiff, and from the whole thereof,
and also from an order made and entered in the above-entitled court and cause on the 23d day
of November, 1925, on plaintiff's motion for a new trial, in so far as said order denies
plaintiff's motion and application for a new trial of said cause with reference to the matters
involved in and concerning bill of exchange No. 3504 for 81,255 drachmas, issued by the
Washoe County Bank, defendant in the above court and cause, to John Kondas, plaintiff in
the above court and cause, on September 6, 1919, and specifically described in and referred to
in the pleadings in the above-entitled cause.
1. Section 5327, Rev. Laws, provides that aggrieved parties may appeal. Can it be said
that the plaintiff was aggrieved by the order of the court made in passing upon the motion for
a new trial? In a legal sense an aggrieved person is one who is injured. 2 C. J. 973. In
McKenna v. McKenna, 29 R. I. 224, 69 A. 844, in considering a similar question, the court
quoted approvingly as follows:
The rule generally adopted in construing statutes on this subject is that a party is
aggrieved by the judgment or decree when it operates on his rights of property or bears
directly upon his interest. 2 Cyc. L. 633. The word aggrieved' refers to a substantial
grievance, a denial of some personal or property right, or the imposition upon a party of a
burden or obligationciting authorities.
In Re Switzer, 201 Mo. 66, 98 SW. 461, 119 Am. St. Rep. 731, the court held that:
Every person aggrieved' includes every person whose rights were in any respect
concluded by the judgment.
In Washington County Abstract Co. v. Stewart, 9 Idaho, 376, 74 P. 955, the court said on
rehearing:
If the court entered a judgment which deprives the plaintiff here of any of its property
rights, then it must be a party aggrieved' within the meaning of the statute.
See, also, In Re Macky's Estate, 46 Colo. 100, 102 P. 1088; Woodward v. Spear, 10 Vt.
422.
2. The order of the court was partially in favor of the plaintiff and partially adverse to him.
To the extent that it was adverse to him he was aggrieved and had a right to appeal. In this
connection counsel for defendant insist that since section 5329 provides that an appeal from
an order granting or refusing a new trial, may be taken * * * within sixty days, and since
the order in question contains the words, * * * it is ordered that a new trial be had herein, * *
* the order is favorable to the plaintiff and hence he cannot appeal. Section 5329 does not
purport to provide who may appeal, but merely fixes the time in which an appeal may be
taken. Section 5327 states who may appeal, as we have pointed out. The notice of appeal
clearly states that the appeal is from that portion of the order that is adverse to him. This in
our opinion is all that is necessary.
3. It is further contended that the appeal from the order made on the motion for a new trial
should be dismissed for the reason that the notice of intention to move for a new trial was not
served and filed within the time prescribed by law. Chapter 86, Stats. 1921, provides that a
party intending to move for a new trial where an adverse decision has been rendered against
him by a court must, within ten days after written notice of such decision, file and serve
notice of his intention, etc.
We have pointed out above that the written notice of the decision of the court was served
upon the plaintiff on April 29, 1925, and that plaintiff's notice of intention to move for a new
trial was filed and served on May 8, 1925within ten days thereafter. But it is said by the
defendant that, while this is true, plaintiff had waived such written notice by the procuring of
the order of April 27 directing the defendant to prepare findings of fact. In reply to this
contention plaintiff says the procuring of the order mentioned did not constitute such a
waiver, and even if it did the defendant waived such waiver by thereafter serving the
written notice of the judgment.
waiver by thereafter serving the written notice of the judgment.
4, 5. We are of the opinion that the procuring by plaintiff of the entry of the order of April
27 did not constitute a waiver of the written notice. It is evident, too, that counsel did not so
consider it at the time of the service of the written notice of the decision, for, if he had, he
would have deemed the service thereof entirely unnecessary and sterile of all results, and
hence would not have gone to the trouble of making such service. Under the law, plaintiff had
ten days from the service of written notice of the rendition of the judgment in which to file
and serve notice of his intention to move for a new trial. Of course he had actual notice
thereof because he was in court when it was rendered, but when the statute provides for
written notice, as in this case, such notice must be given unless waived. Maurin v. Carnes, 80
Minn. 524, 83 NW. 415. Surely no court will say that such a statutory requirement can be
deemed waived unless an intention to do so is clearly and unequivocally manifested. 27 R. C.
L. 908; 40 Cyc. 261.
It is not pointed out wherein such intention is clearly and unequivocally manifested, and
we fail to perceive any indication of such intention. The procuring of the order in question
was in no way incident to the procuring of a new trial, and could in no way affect such a
procedure. If the plaintiff had taken steps for the purpose of procuring a new trial, a clear
intention to waive the written notice would have been signified. Maurin v. Carnes, supra.
For the reasons given, the motion to dismiss the appeal from the order entered on the
motion for a new trial is denied.
6. We are now brought to a consideration of the motion to dismiss the appeal taken from
the judgment. This motion is based upon the ground that the appeal was not taken within six
months from the rendition of final judgment as required by section 5329, Rev. Laws. As we
have pointed out, the judgment was rendered in open court on April 22, 1925, formal
findings were signed and filed on June 13, 1925, and the appeal was taken on January 20,
1926.
open court on April 22, 1925, formal findings were signed and filed on June 13, 1925, and the
appeal was taken on January 20, 1926. The defendant contends that the final judgment was
rendered on April 22, and, pursuant to a long line of decisions, the appeal from the judgment
must be dismissed. Counsel for the plaintiff concedes that an appeal taken solely from a
judgment must be dismissed if not taken within six months from the date of rendition. He
says, however, that this court in Central Trust Company of California v. Holmes Mining
Company, 30 Nev. 437, 97 P. 390, expressed some dissatisfaction with the rule to the effect
that the final judgment is of the date of its announcement in open court instead of when
formal findings and judgment are signed and that we should now reverse the previous ruling
of the court. For the reason given in the case mentioned, we deem it proper to adhere to the
conclusions reached therein. We may say, however, that a contrary conclusion would not aid
appellant, since the formal findings were filed more than six months prior to the taking of the
appeal.
7. It is contended also that since a motion for a new trial was made and since there is an
appeal from the order made thereon in apt time, jointly with an appeal from the judgment, the
appeal from the judgment is timely though not within six months from the rendition of the
judgment. In support of this contention counsel directs our attention to several sections, 386,
388, and 417 of our civil practice act (Rev. Laws, 5328, 5330, and 5359).
8, 9. The contention made is interesting and apparently made now for the first time in the
history of the court. While it is interesting and not without some argument to support it, we
do not feel that we can give it sanction. Section 5329, Rev. Laws (section 389, civil practice
act), clearly provides that an appeal from a final judgment must be taken within six months.
To obviate the force and effect of this statute even by a subsequent act, it must clearly appear
that it was the intention of the latter act to modify the former. At least they must be so
inconsistent as to be clearly in conflict.
least they must be so inconsistent as to be clearly in conflict. Of course when two sections or
two acts are in pari materia they must be harmonized. But we can find nothing in the sections
mentioned indicating an intention to modify section 5329, Rev. Laws, relative to appeal from
judgments. True it is that section 5330, Rev. Laws (section 388, civil practice act), provides
that:
When the appeal is from the judgment and from an order denying a motion for a new
trial, one notice of appeal so specifying shall be sufficient.
10. Such joint appeal can be taken when the order denying the motion for a new trial is
entered at such a time within six months from the rendition of the judgment as will enable the
taking of both appeals at the same time, as generally happens, but we do not understand that
one notice of appeal will suffice when the order on motion for a new trial is not disposed of
within time to permit such joint appeals. No such intention is anywhere manifested. This
court has repeatedly held that repeals by implication are not favored, and the presumption is
always against the intention to repeal where express terms are not used. State v. Donnelly, 20
Nev. 214, 19 P. 680.
For the reasons given, it is ordered that the appeal from the judgment be dismissed. The
motion to dismiss the appeal from the order entered on the motion for a new trial is denied.
December 1, 1927.
Per Curiam:
Rehearing denied.
____________
50 Nev. 191, 191 (1927) Sugarman Co. v. Morse Bros.
SUGARMAN CO. v. MORSE BROS.
No. 2772
May 3, 1927. 255 P. 1010.
1. Appeal and ErrorAppealable Order.
Where demurrer raised question of sufficiency of facts pleaded to entitle plaintiffs to injunction, and
order refusing relief amounted to denial of application for injunction, order was not rendered
nonappealable by fact that it was designated as restraining order.
2. Appeal and ErrorDismissal.
Appeal taken from order denying restraining order and appointment of receiver and the whole
thereof was not subject to be dismissed, though order denying restraining order might not of itself
sustain appeal.
3. Appeal and ErrorRule 8.
Question of insufficiency of record, presented in supplemental brief on motion for dismissal of
appeal, was raised too late, under supreme court rule 8.
4. Joint AdventuresInjunction and Receiver.
Where one corporation, after agreeing with another to purchase certain mill property for their joint
benefit repudiated agreement, excluding other from participation in control, and proceeded to dismantle
and sell mill and equipment, other corporation was entitled to injunction and appointment of receiver.
5. Joint AdventuresPleading.
Complaint alleging corporations entered into agreement whereby one was to purchase mill and
milling property in behalf of joint interest for benefit of both corporations held to allege joint
adventure.
6. PleadingFraud.
Rule that mere allegation of legal conclusions will not suffice to show fraud does not require that facts
and circumstances of fraudulent acts be alleged in minute detail.
7. Joint AdventuresLaw Applicable.
In suit by one corporation against the other to have receiver appointed to property which one
corporation agreed to purchase for use and benefit of both, law of receivers applicable to partnerships
controlled, not that applicable to corporations.
8. JudgmentEffect of Federal Court Decision.
Dismissal of suit brought in federal court by one corporation against another, for appointment of
receiver of property purchased for joint benefit, held not decision on merits, where based on want of
jurisdiction under judicial code, sec. 57 (U. S. Comp. St. sec. 1039), on account of plaintiff's lacking lien
or title to property or contract involved.
9. JudgmentEffect of Federal Court Decision.
In action in state court by one corporation against another for injunction and appointment of receiver
to manage property alleged to have been purchased for joint benefit, decision of federal court
dismissing case for want of jurisdiction under judicial code, sec.
of federal court dismissing case for want of jurisdiction under judicial code, sec. 57 (U. S. Comp. St. sec.
1039), held not binding on merits, where case was dismissed on ground that plaintiff failed to acquire lien
or claim to title to property involved.
10. InjunctionPrayer.
Under prayer for general equitable relief, party may have any relief to which he is entitled, including
relief by way of injunction.
11. PleadingPrayer.
Where answer is interposed, prayer for relief in complaint becomes immaterial.
Appeal and Error3 C. J. sec. 107, p. 354, n. 53; sec. 271, p. 458, n. 33, 34; 4 C. J. sec. 2531, p. 642, n. 22.
Fraudulent Conveyances27 C. J. sec. 680, p. 774, n. 98.
Injunctions32 C. J. sec. 1, p. 19, n. 1; sec. 552, p. 334, n. 81.
Joint Adventures33 C. J. sec. 2, p. 842, n. 5; sec. 91, p. 869, n. 81; sec. 97, p. 871, n. 21.
Judgments34 C. J. sec. 1206, p. 788, n. 95; sec. 1645, p. 1162, n. 73.
Pleadings31 Cyc. p. 50, n. 69; p. 55, n. 12; p. 111, n. 3, 98; p. 322, n. 17.
Suit by the Sugarman Iron & Metal Company and another against the Morse Bros.
Machinery & Supply Company. From an order denying an injunction and the appointment of
a receiver, plaintiffs appeal. Reversed with directions.
Platt & Sanford and Brownstone & Goodman, for Appellants:
Appeal is from order refusing to issue restraining order and appoint receiver. Civ. Pr. Act,
sec. 387; Rev. Laws, 5329, as amended Stats. 1913, c. 91, p. 113; Maitia v. Allied Land etc.
Co., 49 Nev. 451.
Defendant elected to stand on so-called demurrer. When no answer is filed, allegations of
petition may be taken as true in considering appointment of receiver. 2 Tardy's Smith on
Receivers, 1961.
Relation between joint adventurers is fiduciary. That one party sees fit to take control is
not sufficient to invalidate rights of others who have performed their part and stand ready to
further aid. Profits of joint adventure may consist not only of money, but of unsold portion
of property.
adventure may consist not only of money, but of unsold portion of property. One party may
sue for breach of contract, share of profits, or contribution for advance in excess of his share,
but remedy at law does not preclude suit for accounting. Botsford v. Van Riper, 33 Nev. 156;
23 Cyc. 454.
Equity by extraordinary remedies preserves status quo and gives fullest possible relief.
Coadventurers are not relegated to suit for damages, but are entitled to enjoy property in kind
and exercise business talents in affairs. It will not permit agent to use knowledge acquired
while acting for principal to deprive latter of just deserts. Lind v. Webber, 36 Nev. 623;
Miller v. Walser, 42 Nev. 497; King v. White, 24 So. 710; Hoge v. George, 18 A. L. R. 369.
Insolvency is not factor when fraud is alleged and complaining party is excluded. Joint
adventure is partnership. Maynard v. Railey, 2 Nev. 313; Cole v. Price, 60 P. 153.
Only thing decided in federal court was that it had no jurisdiction under seldom used
section 57 of federal code. Merits were not passed upon. How can any opinion of that court
dismissing case for want of jurisdiction prevent this court from granting equitable relief when
it has jurisdiction? State court's decision is controlling in construction of state statute. State v.
Chin Gin, 47 Nev. 431; Crocker v. Scott, 87 P. 105.
Price & Hawkins, for Respondent:
Merely to allege that injury would be irreparable is not sufficient. Pleading must show how
and why it would be so. Extraordinary remedy will not be allowed where defendants are
solvent or there is adequate remedy at law. Thorn v. Sweeney, 32 Nev. 251.
Demurrer admits allegations only of fact; not conclusions, inferences, predictions or
arguments. 6 Stand. Pro. 943; Pom. Code Rem. (4th ed.) 609.
Federal court disclaimed jurisdiction because there were no facts stated showing legal or
equitable lien or that suit was to enforce lien or remove cloud. Plaintiffs, having no title to
property and none of their moneys having been employed in purchase, court held proper
action was for breach of agreement.
moneys having been employed in purchase, court held proper action was for breach of
agreement. Fed. Jud. Code, secs. 57, 1039; U. S. Comp. Stat. 1916, vol. I, p. 1165; Royston v.
Royston, 21 Ga. 161; Smith v. Bryan, 34 Ga. 53.
Receiver will not be appointed if plaintiff has adequate remedy at law. If existence of joint
adventure is in issue, or if there is no proof fund is in danger, or association or its members
insolvent, court will not appoint receiver or issue injunction. 13 Stand. Pro. 47, 122, 135, 75;
14a C. J. 947; Tardy (2d ed.), sec. 8; Rowland v. Auto Car Co. 133 Fed. 835; 1 Tardy 476,
1565. Plaintiff is entitled only to accounting. Wood v. Wood, 40 SE. 416.
Stats. 1915, c. 142, sec. 11, 3 Rev. Laws, p. 3344, constitutes complete revision of Civ. Pr.
Act, sec. 414 (2 Rev. Laws, 5356). Water Co. v. Belmont, 49 Nev. 172. By sec. 414, on
appeal from final judgment transcript of notice of appeal is required, whereas by sec. 11,
Stats. 1915, c. 142, original notice of appeal and undertaking is required. Record in
compliance with sec. 414 would be insufficient. Gill v. Goldfield Con., 43 Nev. 1.
OPINION
This matter is before the court on an appeal from an order refusing an injunction and the
appointment of a receiver.
The complaint alleges that Sugarman Iron & Metal Company is a California corporation,
and that the defendant is a Colorado corporation; that for some time past the said corporations
had engaged in several joint adventures and enterprises whereby both corporations had
advanced means and money for the purchase and exploitation in their joint account of various
and divers industrial plants for salvage purposes; that thereafter one George G. Morse, the
president of the defendant company, discussed with plaintiff Davidson, and with one Meyer
Sugarman, the president of plaintiff corporation, the advisability of entering into a joint
enterprise for the purchase of that certain mill,
for the purchase of that certain mill, milling equipment, tools, accessories, etc., of the
Comstock Merger Mines, Inc., and of the Comstock Milling Corporation, situated in Storey
County, Nevada; that prior thereto the plaintiffs had visited said properties and had
thoroughly investigated the same and thereafter requested the said Morse, who was in
Denver, Colo., to come to Reno, Nevada, for the purpose of joining with them in a joint
enterprise for the purchase, exploitation, and subsequent sale of the property mentioned.
That negotiations thereafter took place between the said parties at Reno, Nevada, and, as a
result thereof, it was agreed among the parties named that they visit the properties mentioned
and they did on the following day visit the same; that on the day thereafter it was agreed
among the said Morse, acting for and on behalf of the defendant company, and the said
Sugarman, acting for and on behalf of the Sugarman Iron & Metal Company, and the said
Davidson, in his own behalf, that they would jointly purchase said property for and on the
joint account, in equal shares and interest as to investment, loss, and profit, of the said parties;
that it was further then and there agreed that the said Morse should go East for the purpose of
entering into a contract of purchase of the said property, and that said contract of purchase
should be entered into between the owners of said property and the defendant company,
acting for and in behalf of the joint interest of the parties hereto; that thereafter, and on or
about November 26, 1926, the said Morse entered into an agreement with the said Comstock
Merger Mines, Inc., and the Comstock Milling Company to purchase and did purchase on
behalf of the defendant company and the plaintiffs the property herein mentioned; that said
contract and agreement of purchase was entered into in the name of the defendant company,
but for the use and benefit of the parties hereto, in proportion and interest as above stated.
The complaint further states that the defendant has not disclosed to either of the plaintiffs
the fact that said contract was entered into, but has willfully, deliberately, and fraudulently
concealed said fact from the plaintiffs,
and fraudulently concealed said fact from the plaintiffs, with the express, deliberate, and
fraudulent purpose of depriving plaintiffs of their just rights, benefits, share, and profits in
and to said purchase, sale, handling, and exploitation of said property, and that the defendant
has attempted and is attempting to dispose of parts of said mill and milling property for and
on its own behalf, and has engaged employees actively to superintend and to carry on the
work of dismantling, removing, and selling said property, and that it is the intention of said
defendant to repudiate its agreement and understanding with the plaintiffs and to deprive
them and each of them of any interest whatever in and to said contract and agreement and the
property described therein.
It is further alleged that the defendant threatens to sell and to remove said property from
the jurisdiction of the State of Nevada and to remove the proceeds thereof out of the State of
Nevada, and to deprive these plaintiffs of any participation or voice therein and of any benefit
or profit therefrom; that the defendant has in truth and in fact repudiated its agreement with
the said plaintiffs and has excluded each and both of them from any and all participation
therein the present and future management, control, exploitation or sale of any part or portion
of said property or from dealing or trading therein.
It is further alleged that the defendant has deliberately, willfully, and fraudulently
purchased said property as aforesaid with the willful, deliberate, and fraudulent intent then
and there had to fraudulently deprive the plaintiffs of any right, title, or interest therein, and to
fraudulently deprive them of the fruits and benefits thereof.
The complaint further alleges that the plaintiffs have tendered and offered to the defendant
to perform all of the terms, covenants, and conditions of said sale, binding upon them, and to
perform each and every part, covenant, or condition of the said contract and agreement, and
that they have always been ready, willing, and anxious to so perform and are still ready so to
do, and are ready and willing to submit to each, every and all orders of the court with
respect to any demand or duty to be performed by them, in the performance of any of the
provisions and conditions of said sale.
and are ready and willing to submit to each, every and all orders of the court with respect to
any demand or duty to be performed by them, in the performance of any of the provisions and
conditions of said sale.
The complaint further alleges that the defendant is engaged in dismantling and selling a
part or portion of said mill, machinery, equipment, and accessories, to the great detriment,
damage, and irreparable loss of the plaintiffs, and that, unless restrained, the defendant will
continue to dismantle, dispose of, and sell said machinery, or will ship and remove the same
from and out of the state and the jurisdiction of the court, and will prevent all funds,
revenues, and moneys derived from the sale thereof from entering or coming within the State
of Nevada.
The complaint further alleges that the only method whereby the rights and interests of the
plaintiffs can be protected in the premises is through the appointment of a receiver.
The complaint concludes with a prayer that an order be issued requiring the defendant to
show cause why it should not be restrained from selling or removing said property and for the
appointment of a receiver, and for general relief.
A show cause order was entered upon the filing of the complaint, in response to which the
defendant appeared both by answer and demurrer. The grounds of demurrer are: That the
complaint does not state facts sufficient to constitute a cause of action; that it does not state
facts sufficient to justify the appointment of a receiver, or for the issuance of a restraining
order or injunction, or for any other extraordinary or equitable relief.
When the matter came on for hearing before the lower court, it was argued upon the
questions raised by the demurrer, at the conclusion of which an order was made, from which
we quote as follows:
The court at this time renders its decision on defendant's demurrer to plaintiffs' complaint
heretofore argued and submitted, and orders that on the prayer of plaintiffs for certain orders
providing for the issuance at this time of a restraining order against defendant and the
appointment of a receiver, the court denies said request."
plaintiffs for certain orders providing for the issuance at this time of a restraining order
against defendant and the appointment of a receiver, the court denies said request.
After the appellants had filed their opening brief on appeal, a motion was made to dismiss
the appeal, which was denied at the conclusion of the argument thereon. The matter was
thereafter argued upon the merits and submitted. Thereafter and on April 20 counsel for
respondent filed a petition for a rehearing on the motion to dismiss, and on April 25 filed a
supplemental brief, wherein additional reasons are urged as grounds for the dismissal of the
appeal.
Section 387 of the civil code (Rev. Laws, sec. 5329, as amended by chapter 91, Stats.
1913, p. 113), provides that an appeal may be taken from an order refusing to grant an
injunction or to appoint a receiver.
1, 2. One of the contentions made in support of the motion to dismiss is that the court did
not refuse to grant an injunction, but that it refused to issue a restraining order which, it is
said, is not an appealable order. The other contention is that, while an appeal lies from an
order denying the appointment of a receiver, in view of the fact that the appeal is from an
order denying the application for an injunction and for the appointment of a receiver and the
whole thereof, the appeal will not lie if no appeal can be taken from the order denying the
application for the restraining order.
By its demurrer the defendant raised certain legal questions, and one of them was as to the
sufficiency of the complaint to sustain an order for a temporary restraining order or for an
injunction. The court, in passing upon the questions raised, does not use the term temporary
restraining order, but uses the expression restraining order.
We do not know what was in the mind of the court when it made its ruling, but it is certain
that the demurrer raised the legal question of the sufficiency of the facts pleaded to entitle the
plaintiffs to an injunction, and the fact is that, as long as the order which the court did make
stands, it amounts in legal effect to a denial of the application for an injunction.
court did make stands, it amounts in legal effect to a denial of the application for an
injunction. The terms restraining order and injunction are frequently used as
synonymous, and, in view of the legal effect of the order made, we feel that we should hold
that the point made is without merit. Be this as it may, the motion was properly denied, for
the reason that the appeal from the order refusing to appoint a receiver is properly taken. The
appeal having been taken from the order as a whole, the motion to dismiss must be denied.
We think both of the grounds urged were highly technical and without merit, and the petition
for a rehearing is denied.
3. The so-called supplemental brief urges the insufficiency of the record in the case as
another reason for the dismissal of the appeal. This point is made too late under rule 8.
Furthermore, it was not raised in the original motion. Nelson v. Smith, 42 Nev. 303, 176 P.
261, 178 P. 625. Besides, there is no merit in it.
4. We are now brought to a consideration of the questions presented as to whether or not
the court erred in refusing to grant an injunction and to appoint a receiver.
5, 6. On the oral argument counsel for respondent generously conceded that the complaint
sufficiently alleges a joint adventure. Under the authority of Botsford v. Van Riper, 33 Nev.
156, 110 P. 705, and Lind v. Webber, 36 Nev. 623, 134 P. 461, 135 P. 139, 141 P. 458, 50 L.
R. A. (N. S.) 1046, Ann. Cas. 1916A, 1202, there can be no doubt on that point. But, while
counsel makes the concession stated, it is said that the complaint pleads no facts showing
fraud, but merely conclusions. We agree that the mere allegation of legal conclusions will not
suffice and that one who seeks to prove fraud must allege facts from which the inference of
fraud may be drawn, but it is not required that the facts and circumstances be alleged in
minute detail, or that a detailed statement of the fraudulent acts be stated. 27 C. J. 773.
7. In discussing the case, counsel for respondent cite in their brief many cases growing out
of applications for the appointment of a receiver of a corporation.
for the appointment of a receiver of a corporation. The law of receivers applicable to
corporations cannot control in the instant case, but rather the law of receivers applicable to
partnerships. Botsford v. Van Riper, supra; Keyes v. Nims, 43 Cal. App. 1, 184 P. 695; Fried
v. Guiberson, 30 Wyo. 150, 217 P. 1087; 23 Cyc. 453.
We think the complaint pleads sufficient facts to justify both an injunction and a receiver.
The Supreme Court of the United States in Marble Co. v. Ripley, 10 Wall. 339, 19 L. Ed.
956, in speaking of a case the facts of which brought it within the rules applicable to a
partnership, said:
Any unauthorized attempt by one to oust the other from the position and rights assigned
to him by the contract was, therefore, not only a breach of their agreement, but a fraud upon
the relation they had assumed to each other. Such a wrong it is the province of a court of
equity to prevent. A chancellor will interfere by injunction to restrain one partner from
violating the rights of his copartner, even when a dissolution of the partnership is not
necessarily contemplated. Story's Equity, sec. 669.
In New v. Wright, 44 Miss. 211, the court, after alluding to the allegations of the
complaint, says:
This was using the mill in a manner unauthorized by the terms of the contract of
partnership, and would justify an injunction, * * * and a dissolution of a partnership may be
granted and a receiver appointed on account of the gross misconduct of one or more of the
parties. 1 Story's Eq. 635, sec. 672A. To authorize the appointment of a receiver there must
be some breach of the duty of a partner, or of the contract of partnership. Harding v. Glover,
18 Ves. 281.
In Apple v. Smith, 106 Kan. 717, 190 P. 8, it is said:
It is not an uncommon practice in a court of equity to appoint a receiver in winding up a
partnership, and especially where one partner wrongfully excludes another from participating
in the possession and control as well as the benefits of the business or property of the firm.
Such is the law of this state. Maynard v. Railey, 2 Nev. 313. See, also, Allen v. Hawley, 6
Fla. 142, 63 Am. Dec. 198; Fitzpatrick v. Rogan, 28 Wyo. 231, 203 P. 245; Dolenga v. Lipka,
224 Mich. 276, 195 NW. 90; Ellis v. Commander, 1 Strob. Eq. (S. C.) 192; 30 Cyc. 473. In
partnership cases of this character it is not necessary to aver the insolvency of the defendant.
It is said that in a similar application for a receiver by the plaintiffs herein in the federal
court, the proceedings were dismissed because of the failure to aver a cause of action, and
that we should give great weight to this decision. The matter was heard and disposed of by
that court on a motion to dismiss for want of jurisdiction under section 57 of the judicial code
(U. S. Comp. St. sec. 1039). In that matter the court said:
In as much as plaintiffs acquired no legal title to the contract or the property, and none of
their moneys or means were employed in making the purchase, it is impossible to hold that
they acquired any lien or claim to the title to the property or to the contract, or that the
transaction resulted in creating any incumbrance thereon within the meaning of section 57 of
the federal judicial code. * * * This is not to be understood as a decision on the merits of the
case. I am simply holding that the facts do not warrant this court in taking jurisdiction.
8, 9. We do not consider the decision of the federal court in point, and, if it were, it would
not be binding upon us. That court determined merely a jurisdictional question and not
whether facts sufficient were stated to constitute a cause of action. Surely the federal court
would have alluded to the decisions of this court, if it had intended to hold contrary to them.
10, 11. It is argued that there is no prayer for an injunction in the complaint; hence no
error was committed in denying injunctive relief. There is a prayer for general equitable
relief. Such a prayer warrants any relief the party is entitled to. In fact, when there is an
answer, the prayer is immaterial, as has often been held, even by this court. Furthermore,
defendant evidently knew that plaintiffs intended demanding injunctive relief, since it
demurred to the complaint on the ground that it did not plead facts sufficient to justify
the same.
injunctive relief, since it demurred to the complaint on the ground that it did not plead facts
sufficient to justify the same.
For the reasons given, it is ordered that the petition for a rehearing on the motion to
dismiss the appeal be and is hereby denied. It is further ordered that the orders denying
plaintiffs' application for an injunction, and for the appointment of a receiver be and are
hereby reversed, and the lower court is directed to proceed in accordance with the views
herein expressed. It is also ordered that a certified copy of this opinion and order be forthwith
transmitted to the clerk of the Second judicial district court of the State of Nevada.
Jurisdiction hereof will be retained solely for the purpose of the allowance of costs herein,
after which it is ordered that a remittitur issue.
On Motion to Tax Costs
June 23, 1927. 257 P. 1.
1. CostsRule 6.
Where cost bill, verified as required by supreme court rule 6, showed item for 103
folios for typewriting transcript and statement on appeal and bill of exceptions,
objection thereto which did not show that number of folios was determined by actual
count or anything to show method by which number of folios was estimated, held
insufficient to overcome prima facie case made by the verified bill.
2. CostsFailure to Move to Strike.
Defendant, having failed to move to strike papers from record because they were not
included in proper bill of exceptions, which under Stats. 1915, c. 142, sec. 11, should
be attached to order appealed from, and having relied on them in argument on appeal,
cannot complain that it should not be taxed with cost of transcript.
Costs15 C. J. sec. 656, p. 263, n. 33 (new); sec. 657, p. 263, n. 45 (new).
On motion by plaintiff to tax costs. Ruling of the clerk taxing costs affirmed.
OPINION
Within five days after notice of the decision in this cause the appellants filed with the clerk
and served upon the respondent a verified cost bill in accordance with rule 6 of this court.
the respondent a verified cost bill in accordance with rule 6 of this court. The respondent, in
accordance with the same rule, filed with the clerk and served its objections to the costs
claimed. The objections were heard and settled by the clerk, and the costs were taxed at the
amount claimed by the appellants, to wit, $70.75. The respondent appeals from the clerk's
decision.
1. The second item of the cost bill reads as follows:
To typewriting transcript and statement on appeal and bill of exceptions, 103 folios at 15
cents, $15.45.
The objections to this item are twofold. The first is that the transcript contains not to
exceed 92 folios, and therefore the item of $15.45 as taxed by the clerk should be reduced to
$13.80.
Rule 6 of this court requires cost bills to be verified. Otherwise the mere exception to
some statement in the cost bill would control. The practice, therefore, is that, upon filing and
serving a verified cost bill as required by rule 6, a prima facie case is made, which must be
overcome by proof of the party excepting thereto. Clark v. Eltinge, 39 Wash. 696, 83 P. 901.
There is nothing in the papers before us to show that the number of folios was determined
by actual count, nor anything to show the method by which the number of folios was
estimated. In this situation we are led to the conclusion that the respondent has failed to
overcome the prima facie case made by appellants' verified cost bill, and for this reason we
shall allow the item of $15.45 to stand.
2. The second objection to the bill is that the appeal in this cause was taken from an order,
and, there being no bill of exceptions attached to the order as required by section 11 of
chapter 142, Statutes 1915 (3 Rev. Laws, p. 3344), the only papers that may legally be
included in the transcript on appeal from such order are the bill of exceptions, the notice of
appeal, the undertaking on appeal, and the order appealed from.
The record on appeal, in addition to the notice of appeal, the undertaking on appeal, and
the order appealed from, contains copies of the complaint, summons, affidavit of service,
order and rule to show cause, demurrer to complaint, notice of decision, order on rule to
show cause, and certificate of the clerk.
demurrer to complaint, notice of decision, order on rule to show cause, and certificate of the
clerk. It is contended that these papers are not legally a part of the transcript; that they are
fugitive papers, irrelevant and immaterial, and should be eliminated from the item of cost of
the transcript, to wit, $15.45, leaving the sum of $2.10 as the true sum to be allowed as cost
of the transcript, thus reducing the total cost taxed from $70.75 to $57.40.
Conceding that the papers specified were not included in a bill of exceptions attached to
the order appealed from, nevertheless it appears affirmatively from the record that in arriving
at a correct solution of the appeal all said papers and files were treated and used as a part of
the record without objection from the respondent.
The respondent, having failed and neglected to move to strike said papers from the record
because they were not included in a proper bill of exceptions, and having relied upon them in
his argument on appeal, is in no position to complain that it should not be taxed with the cost
of their transcription.
The ruling of the clerk is affirmed.
____________
50 Nev. 205, 205 (1927) Portland Co. v. Wheeler
PORTLAND CATTLE LOAN CO. v. WHEELER &
STODDARD, Inc.
No. 2759
May 4, 1927. 255 P. 999.
ON MOTION TO STRIKE
1. Appeal and ErrorDistrict Court Rule 36.
Memorandum of errors on motion for new trial and assignment of errors involving errors at law
occurring at trial held stricken, where extensions of time for service of memorandum of errors on adverse
party, beyond time allowed under civil practice act, sec. 380 (Rev. Laws, 5322), were invalid because
entered without notice, contrary to district court rules, rule 36.
2. WitnessesDead Man Rule.
Affidavit of respondent to have memorandum of errors on appellant's motion for new trial stricken on
ground that service was not made within time allowed by civil practice act, sec. 380 (Rev. Laws, 5322),
because extensions permitted were without notice under district court rules, rule 36, was not rendered
inadmissible by fact that attorney who had been in charge of case for appellant was dead; Rev. Laws,
5419, providing no persons shall be allowed to testify when other party to transaction is dead not being
applicable.
3. WitnessesDead Man Rule.
Testimony will not be excluded as involving transaction with deceased person, under Rev. Laws,
5419, unless clearly within terms of statute.
4. Appeal and ErrorTranscript not Stricken.
Where appellant assigned as error insufficiency of evidence to justify decision under civil practice
act, sec. 378 (Rev. Laws, 5320), transcript of testimony was properly part of record on appeal for
presentation of such question, though memorandum of errors on motion for new trial was not served
or filed within time prescribed by section 380 (Rev. Laws, 5322).
Appeal and Error3 C. J. sec. 1549, P. 1397, n. 47; 4 C. J. sec. 2267, p. 507, n. 8 (new).
Witnesses40 Cyc. p. 2260, n. 52; p. 2262, n. 54; p. 2301, n. 16.
Action by the Portland Cattle Loan Company against Wheeler & Stoddard, Inc., and
others. From a judgment for plaintiff and order denying a new trial, defendants appeal. On
motion to strike memorandum of errors on motion for new trial, specifications of error on
appeal and transcript. Motion to strike denied as to transcript of testimony; memorandum
of errors on motion for new trial and assignment of errors involving errors at law
occurring at trial ordered stricken from record on appeal.
of testimony; memorandum of errors on motion for new trial and assignment of errors
involving errors at law occurring at trial ordered stricken from record on appeal.
Green & Lunsford, for Movant:
No memorandum of errors was filed and served within ten days after service of notice of
motion for new trial. There is no provision that requests for extension of time may be made
ex parte. Civ. Pr. Act, sec. 380, Rev. Laws, 5322.
Lunsford's affidavit does not state that Mack, deceased, one of opposing counsel, failed to
serve him, but that no copy was served, and it was not testimony regarding transaction with
deceased person within meaning of Rev. Laws, 5419. In Re Winslow's Will, 122 NW. 971;
Alexander v. Ransom, 92 NW. 418; Stetler v. Stewart, 107 NW. 310.
Order extending time is ineffectual for any purpose unless copy is served. District Court
Rule 10. Rule 36 and Beco v. Tonopah Ex. M. Co., 37 Nev. 199, are conclusive against
appellant.
We were not present in court when orders were made, minutes do not show our presence,
and there is no presumption of our presence; under rule 36 it was not indispensable.
M. B. Moore, for Appellants:
We do not take issue with respondent upon rules and authorities cited, but upon
application thereof to case at bar. Record discloses motion to strike memorandum of errors
was presented and allowed at time motion for new trial was argued, but record discloses no
affidavit or evidence in opposition to legality of proceedings. Only thing upon which motion
was made was statement of Lunsford by way of argument that no notice was served upon him
of orders contained in court minutes. Later affidavit was filed, but after motion for new trial
was denied and motion to strike was granted. Case is not within rule 36. In absence of proper
evidence presumption is that court proceeded regularly, and that necessary parties were
before court.
that necessary parties were before court. Parker v. Altschul, 60 P. 380; Caruthers v. Hensley,
27 P. 411.
No person shall be allowed to testify when other party to transaction is dead. Rev. Laws,
5419. Affidavit shows transaction was between Lunsford and Mack, deceased, who had
charge of all matters connected with case at that time. This case is squarely within Bright v.
Virginia C. & G. H. W. Co., 254 Fed. 175.
OPINION
This is a motion to strike the memorandum of errors relied upon by appellants in the lower
court upon their motion for a new trial, the memorandum or specifications of error in this
court, and the reporter's transcript of the testimony and proceedings given and had in the
lower court contained in volume 2 of the record on appeal. The motion is based upon the
ground that said memorandum of errors was not filed within ten days after service of the
notice of motion for new trial, as required by section 380 of the civil practice act of this state
(Rev. Laws, 5322). Section 380 provides:
Where the motion is made upon the seventh cause mentioned in the preceding section,
the party moving shall, within ten days after the service of notice of motion for a new trial,
unless further time be obtained by stipulation or order of court, serve upon the adverse party a
memorandum of such errors excepted to as he intends to rely on upon the motion, and such
memorandum shall contain a verified statement of his attorney that in the judgment of such
attorney the exceptions so relied upon are well taken in the law. No other errors under
subdivision 7 shall be considered either upon the motion for a new trial or upon appeal than
those mentioned in such memorandum.
It appears that the notice of intention to move for a new trial was served upon respondent's
attorney on March 20, 1925, that upon March 30, 1925, the court, by a minute order extended
the time for preparing, serving, and filing a memorandum of errors to and including April
10, 1925, and that on April S, 1925, it made an order extending the time to and including
May 1, 1925.
serving, and filing a memorandum of errors to and including April 10, 1925, and that on April
8, 1925, it made an order extending the time to and including May 1, 1925.
It appears that the memorandum of errors was served on the attorney for respondent on
April 27, 1925, and filed the following day. Counsel for respondent claims that he was not
present when either of these orders extending the time for serving the memorandum of errors
was made; that no written notice of either was given to him as required by rule 36 of the
district court rules; and that consequently the orders were invalid and the memorandum of
errors was not filed within the time limited by said section 380. Rule 36 reads:
No order, made on ex parte application and in the absence of the opposing party,
provided he has appeared, granting or extending the time to file any paper or do any act, shall
be valid for any purpose, in case of objection, unless written notice thereof is promptly given
to such opposing party. Such notice shall be given as other notices are given, or may be given
by registered mail sent to the last known address of the attorney for such party, or, if he has
no attorney, to such party himself. If the address of such attorney or party be not known then
the notice may be addressed to such attorney or party in care of the clerk.
1-3. In support of the motion respondent filed in this court and presented on the hearing of
the motion the affidavit of Edward F. Lunsford, its attorney, showing, among other matters,
that at all times during the pendency of the case in the lower court he was the sole attorney for
respondent, and maintained law offices in the city of Reno, Washoe County, Nevada; that he
never had any notice or knowledge of either of the applications for extension of time for the
preparing, serving, and filing the memorandum of errors or of the orders extending the time,
and did not know of the existence of said orders until he was furnished with a copy of the
minute orders, which was on a date long after the argument on motion for a new trial.
Counsel for appellants contend that the affidavit showing these matters cannot be considered
on this motion because they relate to transactions with a party since deceased, and come
within the prohibition of section 5419 of the Revised Laws, which is as follows:
be considered on this motion because they relate to transactions with a party since deceased,
and come within the prohibition of section 5419 of the Revised Laws, which is as follows:
No person shall be allowed to testify : 1. When the other party to the transaction is dead.
He filed his affidavit at the hearing of motion to strike which, in support of his contention
that the other party to the transaction is dead, shows the following facts: Affiant at the present
time is sole attorney for the appellants. He became associate counsel with the firm of Mack &
Green, who were attorneys of record for appellants at about the time the case went to trial,
and when George S. Green, one of the members of said firm, was a member of the
Assembly of the State of Nevada and could not participate at the trial. At this time C. E.
Mack, the other member of the firm of Mack & Green, was in actual charge of the case for
appellants, and E. F. Lunsford was attorney for the respondent. Affiant has not consulted with
George S. Green concerning the case at any time since the trial, and so far as he knows Green
has not taken any active part or interest or appeared in said cause since the 17th day of
February, 1925. After the trial of the case it was left solely in charge of C. E. Mack until the
time of the latter's death on the 1st day of August, 1925, with the exception that affiant did
discuss with the said C. E. Mack upon various steps to be taken upon the motion for a new
trial, and suggested to said C. E. Mack that he secure the necessary extension of time to file
the memorandum of errors and statement on motion for a new trial. He recollects that on the
occasion when it became necessary to secure extensions of time for filing memorandum of
errors on motion for a new trial, he was informed by C. E. Mack that he had gone into court
and secured the extension of time in open court. The minutes of the court show the time and
place at which said orders were made.
We see no force in the contention. If Mack obtained the orders from the court or judge in
the absence of Lunsford, how could that have been a transaction between them?
between them? The business of making and obtaining the order was a matter between the
judge and Mack, and was something in which Lunsford, if his affidavit is to be accepted, did
not participate, and in which he had no opportunity to participate. He was in no sense the
other party to the transaction.
As to the service of written notice required by the rule, the affidavit merely negatives a
transaction of that kind. It does not state that Mack failed to make such a service, but that the
affiant did not know of the existence of the orders until he was furnished with a copy of the
minute order at a date long after the argument on motion for a new trial. The effect of this is
not merely to disavow a transaction with Mack involving service of notice as required by the
rule, but to negative such a transaction with any one whose duty it might have been to have
made such service. Moore in his affidavit states facts to show that Mack was actively in
charge of the case, and argues from this that it was his duty to make the service and that
therefore Lunsford's affidavit pertains to a transaction with a person since deceased. But the
deduction does not necessarily follow. From the facts stated it may have been Mack's duty to
see that the service was made, but it does not follow that it was his duty to make the service
himself. He might have requested either Moore or Green to make it, notwithstanding he was
the leading attorney for appellants. If either of the other attorneys had made it there would
have been no transaction with a person deceased. Testimony will not be excluded where the
case does not come clearly within the terms of the statute. Maitia v. Allied L. & L. Co., 49
Nev. 451, 248 P. 893. We are of the opinion that the matters stated in Lunsford's affidavit do
not come within the prohibition of said section 5419. As they show that he was not present
when the orders extending the time were made, and that written notices thereof were not
promptly served upon him, the orders were clearly invalid under the plain terms of said rule
36. In Beco v. Tonopah Ext. M. Co., 37 Nev.199, 141 P. 453, this court, in passing upon the
rule said:
Assuming for the time being that the trial judge had acted properly in granting the
extensions of time on ex parte application and without any reason or cause being made of
record, the rule operates imperatively that the opposite party to the litigation should have
notice of the making and entering of such an order before the order itself became valid for
any purpose. In other words, the orders, as made by the trial judge upon the ex parte
application of attorney for appellant extending the time fixed by statute in excess of that
contemplated by the first order, had no force or effect and were invalid unless the rule of the
court was complied with to the extent of giving notice to the opposite party.
The orders extending the time being invalid, the memorandum of errors was not served or
filed within the time prescribed by said section 380, and is therefore not properly a part of the
record on appeal. That portion of the assignment of errors in this court involving errors at law
occurring at the trial is necessarily based upon the memorandum of errors and consequently
falls with it.
4. The motion is also aimed at the reporter's transcript of the testimony and proceedings,
which contains all of the evidence, objections, and exception relating to the errors at law
claimed by appellants. It appears, however, that appellants have assigned in this court, as
grounds for a new trial, the sixth cause mentioned in section 378 of the civil practice act
(Rev. Laws, 5320), namely, insufficiency of the evidence to justify the decision. The
reporter's transcript of the testimony is properly a part of the record on appeal for the
presentation of this question, and the motion to strike it is denied.
For the reasons given, the memorandum of errors on motion for a new trial and the
assignment of errors in this court involving errors at law occurring at the trial should be
struck from the record on appeal.
It is so ordered.
____________
50 Nev. 212, 212 (1927) State v. Lewis
STATE v. LEWIS
No. 2769
May 4, 1927. 255 P. 1002.
1. RobberyEvidence.
Evidence held sufficient to sustain conviction of robbery.
2. Criminal LawSeparate Trial.
Showing that prosecution will produce evidence of one defendant's possession of registration
certificate for same license number as automobile parked near scene of robbery held not good cause for
separate trial of codefendant, within criminal practice act, sec. 317 (Rev. Laws, 7167), as amended by
Stats. 1921, c. 100, in view of showing that both attempted to escape in such automobile and instruction
to disregard such evidence as respects codefendant.
3. Criminal LawSeparate Trial.
To constitute good cause for separate trial of one of two codefendants, under criminal practice act,
sec. 317 (Rev. Laws, 7167), as amended by Stats. 1921, c. 100, evidence proposed to be introduced as to
one must be inadmissible as to other and afford reasonable ground for belief that latter will be prejudiced
by joint trial, and mere fact that evidence admissible against one is immaterial as to other is not sufficient.
4. JurySpecial Deputy Sheriff, Competency.
Deputy sheriff, appointed in special capacity and paid by private parties, held not to stand in such
relation to state as to be incompetent as juror, under criminal practice act, sec. 298, subd. 2 (Rev. Laws,
7148).
5. JuryPublic Officers, Exemption.
While public officers are generally exempt from jury duty, they are not necessarily incompetent to
serve as jurors, unless made so by statute; exemption being personal privilege, which they may claim or
waive, under criminal practice act, sec. 299 (Rev. Laws, 7149).
6. JuryDeputy Sheriff, Bias.
Deputy sheriff is not incompetent as juror under constitutional guarantee of fair and impartial jury
merely because of his position as officer.
7. JuryLegislature's Power.
It was within legislature's power to exclude holding of office, such as that of deputy sheriff, from
causes for implied bias, as juror, under criminal practice act, sec. 298, subd. 2 (Rev. Laws, 7148);
question being one of policy
8. JuryImplied Bias.
Criminal practice act, sec. 298, subd. 2 (Rev. Laws, 7148), specifying grounds for challenge of juror
for implied bias, excludes all others, such as holding of office of deputy sheriff, especially in view of
section 300 (Rev. Laws, 7150).
Challenge stating that juror had opinion requiring evidence to remove, based on statements by
policemen and others whom he deemed reliable informants, held insufficient challenge for implied
bias, under criminal practice act, sec.
50 Nev. 212, 213 (1927) State v. Lewis
implied bias, under criminal practice act, sec. 298, subd. 2 (Rev. Laws, 7148), as not alleging formation
of unqualified opinion or belief that prisoner was guilty or not guilty of offense charged.
Juror stating that he had opinion, which would take evidence to remove, based on remarks of police
officers which he regarded as reliable, held not incompetent as having formed unqualified opinion; his
examination as whole indicating that opinion depended solely on whether statements heard were true and
would yield readily to evidence.
11. Criminal LawWitness' Violation of Rule.
Witness' willful violation of rule may be used to discredit his testimony or subject him to punishment
for contempt of court, but cannot deprive party calling him of benefit of his testimony, unless such party
is to blame for violation.
12. Criminal LawWitness' Violation of Rule.
Refusal to strike out testimony of state's witness for violating rule held not error, where she was in
courtroom without knowledge of state's counsel through misunderstanding because of message from
assistant district attorney, who intended to call her immediately, and testified only as to defendants'
identity, as to which nothing was brought out in testimony heard by her.
13. Criminal LawEvidence, Physical Objects.
In robbery trial, pistol cartridges and stolen flash light, found near where one defendant lay wounded,
held admissible, where one robber had pistol and other a flash light.
14. Criminal LawEvidence; Incriminatory Statements.
Physician's testimony in robbery trial as to character of defendant's wound and his weakness and
mental state held proper for jury to consider, in determining weight of his incriminatory statements in
hospital on morning after robbery, but not sufficient to warrant their exclusion from evidence, especially
in view of doctor's testimony that he was not in such stupefied condition as to influence his conversation.
15. Criminal LawEvidence to Rebut Alibi.
In robbery trial, testimony as to finding one defendant's overcoat in car parked near scene of robbery
held admissible to rebut alibi set up by codefendant for both of them, though its probative force was very
slight.
16. Criminal LawEvidence to Rebut Alibi.
Ordinarily, state must prove defendant's presence as part of issue of crime charged, but, to rebut
defense of alibi, may introduce evidence of defendant's presence at or near scene of crime.
17. Criminal LawEvidence; Rebuttal.
Admission of rebuttal testimony, which should have been more properly introduced in opening, is
within trial court's sound discretion, which is not reviewable in absence of gross abuse.
50 Nev. 212, 214 (1927) State v. Lewis
18. Criminal LawCourt's Remark Not Error.
Court's remark, I think it is, in overruling objection to testimony as not in rebuttal of anything
offered by defendants held not error as comment on weight of testimony or oral instruction to jury
without defendants' consent.
Criminal Law16 C. J. sec. 993, p. 529, n. 37; sec. 1499, p. 729, n. 13; sec. 1225, p. 618, n. 34; p. 619, n.
40; sec. 2009, p. 787, n. 93; sec. 2103, p. 833, n. 94; sec. 2128, p. 844, n.45-47; sec. 2186, p. 868, n. 40; sec.
2188, p. 870, n. 57; 17 C. J. sec. 3581, p. 240, n. 33; sec. 3583, p. 244, n. 63.
Juries35 C. J. sec. 165, p. 237, n. 92; sec. 197, p. 254, n. 88; sec. 198, p. 256, n. 4; sec. 323, p. 313, n. 22,
23, 24; sec. 370, p. 341, n. 63; sec. 430, p. 386, n. 17.
Robbery34 Cyc. p. 1808, n. 78.
George Lewis and William Benjamin Lewis were convicted of robbery, and they appeal.
Affirmed.
Dunseath & Frame, for Appellant:
Granting of separate trials is matter of legal, not arbitrary discretion. If evidence is
admissible against one codefendant, but not against another, separate trials should be allowed,
providing application is made in due time on sufficient showing. Stats. 1921, c. 100; State v.
Desroche, 17 So. 209; Ex Parte Hoge, 48 Cal. 5; State v. McLane, 15 Nev. 345.
Deputy sheriff is disqualified. Juror should not be interested or biased. Statute which declares
person is qualified as juror who believes defendant guilty is unconstitutional. State v.
McClear, 11 Nev. 46.
Witnesses cannot be impeached by declarations, acts or conduct of another with which he is
not chargeable
Court erred in saying I think it is in overruling objection that evidence was not rebuttal.
Such remark was clearly comment on evidence and oral instruction, and could mean only that
evidence did rebut. Black's Law Dictionary (2d ed.), 994.
Presence in court of adverse witness in violation of rule is prejudicial.
50 Nev. 212, 215 (1927) State v. Lewis
M. A. Diskin, Attorney-General; Wm. J. Forman, Deputy Attorney-General; L. D.
Summerfield, District Attorney, and H. L. Heward, Deputy District Attorney, for Respondent:
Separate trials will not be granted merely because damaging testimony, admissible against
one codefendant but not against another, will be presented. People v. Perry, 234 P. 894;
People v. Booth, 236 P. 989; Stats. 1921, 165.
Separate trials may be granted where there is antagonism of positions of defendants. That
did not exist here. State v. McLane, 15 Nev. 345.
Juror Geyer who had been deputy sheriff was privately employed and paid. Public officers are
not necessarily disqualified. State v. Lewis, 71 P. 778.
Person who can lay aside opinion, be guided by law and evidence and judge fairly is
competent. Particular grounds for challenge for implied bias must be stated. Rev. Laws, 7148,
7150; People v. Craig, 235 P. 721; State v. Milosovich, 42 Nev. 263.
Party is estopped who, knowing witness is present in violation of rule, neglects to call court's
attention thereto. Such presence does not ipso facto render testimony incompetent; discretion
is permitted. 16 C. J. 844; State v. Salge, 2 Nev. 321.
Not all evidence needs be conclusive; significant circumstances are admissible. State v.
Clarke, 228 P. 582.
Evidence tending to contradict alibi is relevant in rebuttal. State v. Brown, 94 So. 401; 16
C. J. 870.
Order of proof is almost entirely in discretion of court. Defendant is not prejudiced if
allowed to produce evidence to meet rebuttal testimony. 16 C. J. 868; Cooper v. State, 29 SE.
439.
Defendant objected that certain evidence was not rebuttal. Court said I think it is. I will
overrule the objection. Defendant did not object or except to remark I think it is at time, but
now claims it was comment on evidence and oral instruction, and that court meant I think it
does rebut. Court said I think it is" rebuttal.
50 Nev. 212, 216 (1927) State v. Lewis
think it is rebuttal. Would defendant object if court had said, I think it is evidence which
should have been introduced in chief? State v. Clarke, 48 Nev. 134, 228 P. 582.
OPINION
Appellants were jointly informed against by the district attorney of Washoe County, tried,
and convicted of the crime of robbery. They appealed from the judgment of conviction and
from the order denying their motion for a new trial.
1. The evidence is sufficient to sustain the verdict and judgment, as may be readily seen
from the following statement, which includes the important facts shown by the testimony:
On the night of October 14, 1926, between the hours of 11 and 12 o'clock, two men forced
their way into the Yokohama laundry, in Sparks, Nevada, and robbed the proprietor, George
Yamasaki, of over $100. Fifteen or sixteen dollars of the money taken was in silver, about 20
cents in pennies, and the rest in currency. After the robbers left, a flash light, which had been
under a pillow on a bed, was missed. The members of the Japanese family in the house at the
time of the robbery were George Yamasaki, the father, Mrs. Yamasaki, and their daughter and
son, Dollie Yamasaki, and George Yamasaki, Jr., aged 11 and 16 years, respectively. The
robbers tied the three former to beds in the room. Before they left the house, Officers Morris
and Pryor arrived at the place. The former entered the house and kicking open one of the
doors saw the two men in the room. One of the men had a gun and a flash light pointed at the
officer and said, Don't move! The officer fired, and the door was kicked shut. The two men
escaped from the house, running down an alley, with the officers in pursuit, firing at them.
One of the men got into a Ford automobile and tried to start it but abandoned it, and the two
ran out of sight of the officers. The officers ordered a bystander to take the automobile to a
garage.
50 Nev. 212, 217 (1927) State v. Lewis
ordered a bystander to take the automobile to a garage. They also notified Chief of Police
Fletcher, who went in search of the men. When Fletcher was at a point outside of Sparks, at a
distance of about a mile from the Yokohama laundry, he saw two men coming along the
railroad track from the direction of Sparks. He heard one of them say, Can you stick it out?
He ordered them to stop and both started to run, one going on the left side of a cattle guard,
and the other on the right. The one at the right side of the cattle guard said, Don't move.
Fletcher and one of the men commenced shooting at the same time. Shortly after the shooting
one of the appellants, George Lewis, was found by the officers lying under a freight car
wounded. He was taken to the county hospital. The next morning the officer found several
pistol cartridges at the spot where the wounded man was discovered, and about three or four
hundred feet from there was found a flash light. Footprints led from near where the wounded
man was found to the flash light.
Appellant William Lewis was arrested the next morning in the restricted district in Reno,
about 3 miles from Sparks. On his person were found $95 in currency, $16.75 in silver, and
20 cents in pennies, a certificate of registration of an automobile, and a bill of sale purporting
to show sale of an automobile to William Lewis from W. R. Castle. The motor number of the
car mentioned in the certificate of registration taken from the appellant William Lewis did not
correspond with the motor number of the car in which the men tried to escape, but the license
plates on this car bore the same number called for in the certificate of registration.
The appellants are brothers. George Lewis is 16 years old, and his brother 23. On the
morning after the robbery, the younger Lewis was examined by the county physician and
found to be shot through the body on the left side about an inch or an inch and a half below
the apex of the heart, the bullet entering from the back. Chief of Police Fletcher and Chief of
Police J. M. Kirkley, of Reno, visited the younger Lewis at the hospital on the morning of
October 15, at about 10:30 a. m.
50 Nev. 212, 218 (1927) State v. Lewis
hospital on the morning of October 15, at about 10:30 a. m. Both of these officers testified,
substantially, that Kirkley spoke to Lewis about the robbery, and that in answer to a question
by Kirkley as to which one of them tied the Japanese, Lewis said that he did not remember;
that they were too drunk; that they had been drinking all the way from Fallon. Kirkley also
testified that he had a conversation with William Lewis, in which he denied having anything
to do with the robbery.
The witness further testified as follows:
He said that he had left Fallon in the afternoon of the day previous, with a man named
Baldy Ferguson, driving a Chevrolet car. They had driven into Reno, not stopping at Sparks,
getting in late in the afternoon; that he went up and got something to eat, and was started
down an alley when he was stopped by a man and asked for the price of a feed. That he had
got into an argument and had a fight; that he had gone down to the restricted district and had
washed his hands. I asked him who the man was that was shot, and he said he didn't know
any man that was shot. I told him that there was a man shot, in the hospitalI thought it was
his partner. I asked him if he had ever been in trouble. He said, No.' I asked him if he had
ever been finger printed. He said, No.' I informed him that I was about to finger print him
and if he had been, he might just as well tell me. He then said, Chief, I might as well tell you.
I have been in a little trouble. I am wanted in California. You could get $50 reward for
turning me over. The man that is in the hospital is my brother.'
Both appellants were identified at the trial by George Yamasaki, Sr., George Yamasaki,
Jr., and Dollie Yamasaki as the men who entered the laundry and committed the robbery. The
younger Lewis was identified at the trial by Officer Morris as one of the men he saw when he
opened the front door of the laundry, and as the one who stood near the car when the other
was trying to start it after the robbery.
The elder Yamasaki and his son identified the flash light found by the officers as the one
that was missed from the laundry after the robbery.
50 Nev. 212, 219 (1927) State v. Lewis
light found by the officers as the one that was missed from the laundry after the robbery.
The defense sought to establish an alibi by the testimony of George Lewis. His
codefendant did not take the stand. The former denied any knowledge of the robbery. He
accounted for his wound and the encounter of himself and his brother with Fletcher near the
place of the robbery by testifying that they left Fallon on the previous afternoon in a car
driven by a man named Ferguson to go to Reno. The two left Reno about midnight and went
to Sparks to catch a train back to Fallon. They waited there about 15 minutes and finding no
train started to walk back to Reno. They were halted by a man carrying a flash light. Thinking
it was some one trying to rob them, they started to run, and he was shot. His brother tried to
help him along the track, but he finally fell down and could go no further. His brother left him
there, saying he would go for help. He remained where he fell until the officer found him and
took him to the hospital. His brother had $148, he said, when he came to Reno, which he
received on a check for the sale of three horses. Neither he nor his brother had any pistol or
cartridges. They came to Reno to buy some clothes, but finding the stores closed decided to
go back without purchasing any. He could not recall that Chief Kirkley came to the hospital
and questioned him on the the following morning. He was suffering pain, was weak and
somewhat out of his head.
Two witnesses for the defense testified to having known the elder appellant in Fallon by
the name of Clark. One of them said he had known him for about a year, and the other for a
few days prior to the 14th of October. The former had purchased some poultry from him
about the 12th of October and paid something over $40 for it. The latter had purchased three
horses from him October 14th and paid him $150 for the horses. He gave him a check for
$148 and $2 in silver.
One Barnes and his wife, the latter a sister of appellants, living near Hazen, testified that a
week or so before the 14th of October William Lewis left a Ford automobile at their place.
50 Nev. 212, 220 (1927) State v. Lewis
automobile at their place. The car had license plates on it when left. Several days before the
date of the robbery it was observed by the witness that the license plates were gone from the
car. Barnes believed that the license plates exhibited to him, which were on the car in Sparks,
were the license plates taken from the car of appellant.
In rebuttal, A. F. Price, jailer of the Washoe County jail, testified that shortly after
appellant William Lewis was brought to the jail he asked him for an overcoat and a little
sweater that were in the car over at the city hall. The witness asked Joseph L. Kirkley to get
them. Kirkley brought the coat over the the city hall. The witness was not positive that he saw
the coat. On cross-examination the witness said that Lewis did not say that the coat was in the
car at Sparks and did not say where the car was. Don Carlos, the owner of the garage to which
the car was taken, testified that among the articles of clothing in the car at Sparks was a gray
overcoat. Charles Hillhouse testified that a night or two after the robbery he saw an overcoat
in the car at Sparks. Joseph L. Kirkley testified that on the evening following the robbery he
saw an overcoat and other articles in the car at Sparks, and took them to the police station in
Reno, and turned them over to one of the jailers; that he afterwards saw William Lewis
wearing the overcoat in the yard of the county jail; that he thought both of the appellants had
worn the coat.
2. When the case was called for trial and before the formation of the jury was
commenced, the appellant George Lewis moved for a separate trial. The motion was made
upon the ground that the state would offer at the trial against William Lewis evidence tending
to show that there was found in his exclusive possession, when appellant George Lewis was
not present, a certain identification card bearing numbers corresponding with the numbers on
the license plate of a certain automobile found near the place where the offense alleged in the
information was committed, and would attempt to show that the persons committing the
offense attempted to escape in said automobile.
50 Nev. 212, 221 (1927) State v. Lewis
that the persons committing the offense attempted to escape in said automobile. The showing
made on the motion was stipulated as follows:
Upon the trial of the case before the court, the prosecution will attempt to produce
evidence to the effect that at the time of the robbery, or shortly thereafter, there was a certain
Ford touring car parked near the Yokohama laundry; that the two bandits, after committing
the crime of robbery, attempted to get into that Ford touring car, and because the officers
were so close behind them left the car and abandoned it. That perhaps two or three hours
later, the defendant William Lewis was arrested, and had on him at that time not an
identification card, but a registration certificate, which called for the same license number as
the car had on it when parked outside the Japanese laundry.
Section 317 of the criminal practice act, as amended by Stats. 1921, p. 165, c. 100, reads:
When two or more defendants shall be jointly charged with a criminal offense, they shall
be tried jointly, unless, for good cause shown, the court shall otherwise direct.
Does the showing in this case constitute good cause, within the meaning of the statute?
Whether the trial court committed error in denying the motion depends upon the showing
made at the time. This court, in the case of State v. McLane, 15 Nev. 345, in passing on a
statute practically the same, said:
The statute is plain, to the effect that separate trials are not to be ordered, unless good
cause therefor is shown either by the prosecution or defense, and this implies that the party
desiring a separate trial must apply for it and support his application by a sufficient showing
of facts.
3. What would constitute good cause for a severance must, of course, depend upon the
particular facts of each case. But to constitute good cause for a separate trial in any case the
evidence proposed to be introduced as to one must be inadmissible as to the other, and of
such a nature as to afford reasonable ground for the belief that the other will be
prejudiced by a joint trial.
50 Nev. 212, 222 (1927) State v. Lewis
nature as to afford reasonable ground for the belief that the other will be prejudiced by a joint
trial. The mere fact that evidence admissible against one is not material as to the other is not,
in itself, deemed sufficient ground for a separate trial. People v. Booth, 72 Cal. App. 160, 236
P. 987; People v. Perry, 195 Cal. 623, 234 P. 890; Commonwealth v. Borasky, 214 Mass.
313, 101 NE. 377; Gillespie v. People, 176 Ill. 238, 52 NE. 250.
It is doubtful if the stipulation of fact made in this case goes as far as to show that the
evidence, proposed to be introduced against William Lewis, would be inadmissible against
George Lewis. But that is the utmost effect that can be given to it. How the admission of the
certificate of registration, which tended to prove that William Lewis was the owner of the
automobile parked near the laundry, could prejudice George Lewis we are unable to perceive,
especially in view of the fact that the showing was, and the evidence tended to prove, that
both bandits attempted to escape in it. Moreover, the court specially instructed the jury to
disregard evidence of the possession of the certificate of registration in so far as George
Lewis was concerned.
Counsel for the defense relies upon certain language used by this court in State v. McLane,
supra, but the situation is entirely different. The court in that case stated that each of the
defendants relied for his exculpation upon establishing the guilt of his codefendant, and was
of the opinion that on account of the antagonism of their position, if a proper showing of facts
had been made in due time, it would have established good cause for a severance. But such a
case, or one analogous to it, is not before us. We are of the opinion that the showing made
was insufficient to establish good cause for a separate trial.
4. The next error assigned is the denial by the court of appellants' challenge to the juror
Geyer. It developed during the examination of this officer that he was a deputy sheriff, having
been appointed a special officer about a week before the trial and detailed for service at a
resort, know as Lawton Springs, on nights when dances were held there.
50 Nev. 212, 223 (1927) State v. Lewis
dances were held there. He was not paid for his services by Washoe County, but employed
privately. Appellants challenged him on the ground that he was a police officer and contend
that the challenge should have been allowed for implied bias, under subdivision 2 of section
7148 of the Rev. Laws of Nevada (Cr. Prac. Act, sec. 298). The subdivision reads:
Standing in the relation of guardian and ward, attorney and client, master and servant,
landlord and tenant, debtor and creditor; or being a member of the family of the defendant, or
of the person alleged to be injured by the offense charged, or on whose complaint the
prosecution shall have been instituted, or in the employment of any such parties.
It is insisted that a deputy sheriff bore such relation to the state as brought him within the
category of persons made incompetent as jurors by the statute. A bare reading of the
subdivision reveals that this condition is untenable. The state is a party plaintiff, and the
venireman did not stand in any of the relations to it mentioned in the statute or to the
complaining witness. He was a county officer, appointed in a special capacity and paid by
private parties. Under these circumstances, it is questionable if he was really in the employ of
the county.
5. While public officers are generally exempt from jury duty, and ought not to be
summoned on a jury, they are not necessarily incompetent to serve as jurors, unless made so
by a statute. 35 C. J. 313. The exemption is a personal privilege which they may claim or
waive. Section 299, Cr. Prac. Act (Rev. Laws, 7149). In Mingo v. State, 61 Tex. Cr. R. 14,
133 SW. 882, it was held that a deputy sheriff was not disqualified from serving as a juror in
a criminal case. In a later case from the same state, in a capital case, it was held that a
venireman had been a deputy sheriff and had served some process therein, was not ipso facto
ground for challenge for cause, he being otherwise qualified. Young v. State, 91 Tex. Cr. R.
511, 240 SW. 930. See, also, Pate v. State, 158 Ala. 1, 48 So. 388; State v. Forbes, 111 La.
474, 35 So. 710.
50 Nev. 212, 224 (1927) State v. Lewis
6, 7. It is contended that the statute enumerating causes for implied bias, for which
challenges may be taken, is unconstitutional if it does not include persons of this class. In this
respect it is insisted that the right to challenge, for implied bias, one who is a deputy sheriff is
essential to the full enjoyment of the right to a fair and impartial jury secured by the
constitution. Counsel refers us to no authority in point on this contention, but it is argued that
a deputy sheriff, by reason of his position, should be presumed to be biased in favor of the
prosecution, and to this extent not impartial. As such an officer does not conduct a
prosecution and receives no emoluments for a conviction, or could not possibly be benefited
by it in a pecuniary way, we think the supposition that his position as an officer alone should
render him incompetent as a juror, within the meaning of the constitutional guarantee, is
rather too remote to be made the basis of a challenge for implied bias. Be this at it may, the
proposition is one of policy, and it was within power of the legislature to exclude the holding
of such an office from the causes for implied bias. We are referred to State v. McClear, 11
Nev. 39, and it is urged that this case is an authority upholding appellants' contention. We do
not think so. The court held that a statute which deprived an accused of the right to challenge
a juror for actual and for implied bias, for having formed or expressed an unqualified opinion
upon his guilt or innocence, was in both of these respects unconstitutional. It held also that
the right to challenge for the latter cause may, to some extent, be regulated by the legislature,
care being always taken to preserve inviolate the right of trial by a jury of 12 impartial men.
But the court nowhere in the course of its opinion decided a question similar to the point
raised here.
8. It is further urged that the right to challenge the juror for implied bias for this cause
exists independently of the statute. It is clear to us that the legislature, in specifying the
several grounds of challenge for implied bias, intended the statue to be exclusive of all
others.
50 Nev. 212, 225 (1927) State v. Lewis
others. This contention is more obvious from the terms of the succeeding statute (Rev. Laws,
7150 [Criminal Practice Act, sec. 300]), which, in part, reads:
In a challenge for implied bias, one or more of the causes stated in section 298 must be
alleged.
9, 10. Counsel for appellants interposed a challenge to juror Gulling for implied bias. The
challenge, to say the least, was imperfectly taken, It did not state any cause for implied bias
and could be disregarded in conformity with the law above quoted. It was merely stated as a
cause for challenge that the juror had an opinion that it would take evidence to remove; that it
was based upon statement of fact by policemen and persons whom the juror deemed reliable
as informants, and which, in the very nature of the case, would render the juror not entirely
impartial. This does not necessarily mean an unqualified opinion. The challenge, to have been
properly taken, should have been interposed for the cause specified in the statute, that the
juror had formed an unqualified opinion or belief that the prisoner was guilty or not guilty of
the offense charged. State v. Raymond, 11 Nev. 98; State v. Milosovich, 42 Nev. 263, 175 P.
139. We have concluded, however, to regard the challenge as imperfectly taken and consider
the objection.
Touching his qualifications, the juror (omitting repetition) testified as follows:
Mr. Frame: Have you heard what purports to be a statement of the facts in this case? A.
No; I cannot say I have.
* * * * * * * * * *
Q. Have you any opinion at all formed from any source, touching the question of the guilt
or innocence of the defendants? A. Well, I might, and might not. It all depends upon the
evidence.
Q. I mean at this time, would you have an opinion before hearing the evidence? A. No,
sir.
Q. I refer, of course, to your present state of mind, whether you have already heard
enough of the case to form an opinion and to have an opinion touching the guilt or innocence
of the defendants, that it would take evidence to remove? A. It would take evidence to
remove; yes sir.
50 Nev. 212, 226 (1927) State v. Lewis
evidence to remove? A. It would take evidence to remove; yes sir.
* * * * * * * * * *
Q. May I ask you from what source the opinion was formed, was it from talk of people or
from newspaper reports? A. From people.
Q. And did they purport to tell you what the facts were? A. They did.
Q. And I will ask you whether you have heard the discussion of this case among police
officers? A. I have heard some remarks from police officersno discussion.
Q. Did you regard the statements that you heard as being reliable? A. I did.
Q. And probably what the evidence would be? A. Yes, sir.
Q. And from that did you form an opinion, which is now fixed in your mind, to the extent
that it would take evidence to remove that opinion? A. Well, you cannot judge a case without
hearing the evidence.
Q. Well, I mean from what you heard, have you an opinion at this time based on what you
heard? A. Naturally so, that might enter into the case. That might come out in the case. I have
probably heard it before hand.
Q. From what you have heard, have you formed an opinion? A. I have formed an opinion,
but it may be changed by evidence.
Q. That is what I mean. It is an opinion and it is one that it would take evidence to
remove, is it not? A. Yes, sir.
Q. It would take evidence to take away the opinion you have, is that correct? A. It would
have to be, I presume.
Q. You are employed in the city clerk's office, in the city of Reno? A. I am; yes.
Q. And your office is located in the city hall? A. Yes, sir.
Q. Some of the talk you have heard is from police officers, is it not? A. Yes, sir.
Q. And it was upon the statements that they made that you formed the opinion that you
now have? A. Yes, sir.
50 Nev. 212, 227 (1927) State v. Lewis
that you formed the opinion that you now have? A. Yes, sir.
Q. Well, it is then necessarily, Mr. Gulling, an opinion based upon information that you
believe to be reliable? A. Yes, sir.
Q. And it is an opinion that it would take evidence to remove? A. Well, I don't know that
it is as emphatic an opinion as that.
Q. Would the fact that you are acquainted with the police officers, who might be
witnesses in this case, influence you? A. No, sir.
Q. In weighing the testimony of the police officers? A. No, sir.
Q. Do you feel that your relations with the police department in the position that you
occupy is such as would in any way influence your judgment in passing upon this case? A. I
don't think so, no.
Q. Do you feel that you could enter upon your duties as a juror in this case, and listen to
the evidence introduced upon the witness stand, and upon that evidence, and that evidence
alone, come to your conclusion? A. Yes, sir.
Q. And you feel that you could reach your conclusion with fairness and without partiality
to both parties? A. I do.
Q. Is there anything in the relations existing between you and either the district attorney
or the assistant district attorney? A. There is not.
Q. That would influence you at all? A. No, sir.
Q. The personnel of the attorneys, or the personnel of the witnesses, would make no
difference whatever, so far as your verdict is concerned? A. No, sir.
Q. If the evidence was conflicting as to material points in this case, especially as to the
identification of the defendants, where there is a conflict between a policeman and the
testimony of a person who is not a policeman, in a case of that kind, do you feel that your
relations with the city government and police force is such as to in any way influence you in
passing upon and weighing the evidence of that kind? A. It would depend upon the evidence.
50 Nev. 212, 228 (1927) State v. Lewis
upon the evidence. I don't think it would be anything that would influence it otherwise.
* * * * * * * * * *
The Court: Mr. Gulling, could you lay aside everything you have heard about the case,
and try this case solely on the evidence produced here? A. I think so.
Q. And you would not let what you have heard influence you if you sat in the jury box;
you will be governed solely by the evidence? A. What I have heard is in the nature of
evidence, which, I presume, will be brought out in this case.
Q. You can lay that aside and take the evidence and determine the case on the evidence
alone? A. Yes, sir.
The Court: I will deny the challenge.
The challenge was not well taken. We do not believe that the examination disclosed that
the juror had formed an unqualified opinion. The juror nowhere stated that he had, nor did he
state anything from which the formation of an opinion of a fixed and positive character could
be presumed. It does not appear that the policemen upon whose statements he had formed his
opinion were witnesses in the case or knew any of the facts concerning it, or that they claimed
to know the facts of the case. So far as the examination discloses, the statements heard by the
juror may have been hearsay. It does not appear to have been a strong opinion. Little
importance can be attached to the statement of the juror that his opinion was such that it
would take evidence to remove it. Such a definition of his mental state furnishes no test of an
unqualified opinion. That would naturally be true of any kind of an opinion. An impression
made on the mind is not usually effaced or changed without some cause therefor, such as
time, forgetfulness, further reflection, or evidence. Notwithstanding the juror stated that he
believed what he heard to be true and in the nature of evidence, which, he presumed, would
be brought out at the trial, he was sure that it would not influence him as a juror, but that he
could lay aside the opinion he had formed and be influenced solely by the evidence.
50 Nev. 212, 229 (1927) State v. Lewis
by the evidence. His examination, taken as a whole, indicates that the opinion he had formed
was dependent solely upon whether the statements he had heard presented a true version of
the facts, and would yield readily to the evidence. Such an opinion does not disqualify. State
v. Milosovich, 42 Nev. 263, 175 P. 139.
11, 12. Appellants assign error in the refusal of the court on their motion to strike out all
of the testimony on direct examination of Dollie Yamasaki. The motion was based on the
ground that she had violated the rule of the court, directing the witnesses to remain out of the
courtroom and out of the hearing of the other witnesses when testifying. It appears that the
girl was to follow her brother, George Yamasaki, on the stand. Counsel had apparently
finished their examination of the latter, and the assistant district attorney, addressing the
brother, said George, send Dollie in. The court took a recess of five minutes. It was during
this recess that she came into the court room and remained when court was convened until
she was called to the stand. It is well settled that if a witness willfully violates such a rule of
court, such violation may be used to discredit his testimony and subject him to punishment
for contempt of court, but cannot operate to deprive a party calling him of the benefit of his
testimony unless the party is to blame for the violation of the rule. 16 C. J. 844; State v.
Salge, 2 Nev. 321. In State v. Salge some of the defendant's witnesses came in and heard a
part of the testimony for the defense, and for this reason were afterwards excluded from
testifying. In passing on the question, the court said:
The record does not show how much of the evidence they heard, whether their presence
was accidental, and a mere oversight in the witnesses, or whether it was a deliberate
disobedience of the order of the court. Nor does the record show that the defendant himself
was at all blamable for their presence. Being a prisoner at the bar, on trial, it is hardly
presumable the defendant could have controlled the witnesses. No misconduct on their part
{in which the defendant did not participate) could deprive the prisoner of his right to
have the testimony.
50 Nev. 212, 230 (1927) State v. Lewis
their part (in which the defendant did not participate) could deprive the prisoner of his right
to have the testimony. If the witnesses willfully disobeyed the orders of the court, they laid
themselves liable to punishment for contempt, and threw suspicion on their testimony, but did
not affect the defendant's right to have the benefit of their testimony as far as it was worth
anything.
This case is decisive of the question. From the record it seems highly probable that the
witness did not willfully violate the rule by remaining in the courtroom, and was not there
through any design of the complaining witness or counsel for the state, but was there through
a misunderstanding on account of the message, sent to her to come, by assistant district
attorney, who, it appears intended to put her on the stand immediately. It does not appear that
counsel for the state knew she was in the room. Appellants could not have been prejudiced by
the fact that she heard a part of her brother's testimony. When court convened after recess,
George Yamasaki was questioned by the assistant district attorney, and the testimony given
by him was concerning a diagram on a blackboard used to illustrate the relative positions of
buildings, streets, alleys, rooms, beds, doors, windows, etc., at or near the scene of the
robbery. In addition, counsel for the defense, on recross-examination, examined him briefly
as to the movements of the two men, but nothing was brought out in the testimony after the
recess as to their identity. Dollie's testimony on direct was short and elicited by five
questions. She identified both of the appellants as the men who committed the robbery. The
court did not err in denying the motion.
13. There was no error in admitting the pistol cartridges and flash light. One of the
robbers had a pistol during the commission of the offense and afterwards used it in resisting
the officers. The pistol cartridges were found at the spot where George Lewis lay wounded,
and the flash light at no great distance from there. Footprints led from near where he lay to
the flash light. The flash light was identified as the one missing from the laundry after the
robbery. One of the men had a flash light when Officer Morris kicked open the door.
50 Nev. 212, 231 (1927) State v. Lewis
flash light when Officer Morris kicked open the door. The circumstances touching the finding
of these articles and the identification of the flash light as the one taken from the laundry
went to the weight of the evidence, rather than to its admissibility.
14. It is insisted that the admission of statements, made by George Lewis in the hospital
on the morning after the robbery, testified to by Chief of Police Kirkley, was prejudicial error.
In support of this contention, it is urged that the testimony of the county physician shows that
the appellant, at the time of making the statements attributed to him, was in such a weakened
state and mental condition due to his wound and suffering that he could not comprehend the
question asked him or what he said in reply, and that the statements were not voluntarily
made. We find nothing in the testimony which indicates that the appellant was speaking
under duress of any kind. The officers made no threats or promises, and as far as the record
discloses assumed no hostile attitude towards the appellant. Besides, the testimony of Kirkley
as to the statements made, which was substantially the same as that of Fletcher, was admitted
without objection. State v. Clarke, 48 Nev. 134, 228 P. 582; State v. Jukich, 49 Nev. 217, 242
P. 590. The character of appellant's wound, his condition of shock, weakness, and mental
state, testified to by the doctor, were proper matters for the jury to consider in determining the
weight to be given to the statements as incriminatory circumstances, but not sufficient to
warrant their exclusion. In this connection the doctor said, in answer to a question by counsel
for the defense:
A stupefied condition; he was certainly in a stupefied condition, due to internal
hemorrhage, but not sufficiently as toI don't know what you are asking me the question for,
Mr. Frame, but I presume it is in regard to what conversation took place afterwards, but he
was not in such a stupefied condition as to in any way influence his conversation.
The statements of the appellant were properly admitted.
50 Nev. 212, 232 (1927) State v. Lewis
15. It is contended that the admission of the testimony of Price, Kirkley, Fletcher,
Hillhouse, and Don Carlos in regard to the overcoat constitutes error of a prejudicial nature. It
is urged that this evidence was in no sense rebuttal, and if competent at all was properly a part
of the state's case in chief; that it was not admissible even if it had been offered in chief, for
the reason that it in no way tended to connect either of the appellants with the offense; that it
was not rebuttal because it tended in no way to impeach either of the appellants. The state's
theory was that the overcoat was found in the car near the scene of the robbery, and belonged
to the appellant William Lewis. It is insisted that the testimony, taken as a whole, tends to
prove his ownership of the coat and his knowledge that it was in the car, and that it was
properly rebuttal testimony because it tends to rebut the defense of an alibi sought to be
established by George Lewis for himself and William Lewis. The probative force of this
testimony was very slight, but we are not prepared to say that it was without any evidentiary
value whatever. Appellant William Lewis asked to have an overcoat that was in a car brought
to him. The overcoat that was found in the bandit car was brought to the jail, and he was later
seen wearing it. The weakness of the evidence lies in the fact that Lewis did not indicate what
particular car the coat he wanted was in, but this circumstance goes to the weight of the
evidence.
16. Ordinarily, in a criminal case, the state must prove the presence of the defendant as a
part of the issue of the crime charged, and as the testimony objected to has that tendency it
would seem to have been properly a part of the state's case in chief. But it is quite generally
held that, where the defense of an alibi is set up, the state may in rebuttal of such defense
introduce evidence of the defendant's presence at or near the scene of the crime. Where
evidence has been given on behalf of defendant to prove an alibi, the prosecution is entitled to
offer rebutting evidence to prove his presence. 16 C. J. 870. See State v. Lewis, 69 Mo. 92;
State v. Maher, 74 Iowa, 77, 37 NW.
50 Nev. 212, 233 (1927) State v. Lewis
Maher, 74 Iowa, 77, 37 NW. 2, and other cases cited in note 57, which amply sustain the rule
above quoted. Stanley v. State (Okl. Cr. App.), 229 P. 657. We are in accord with this rule
and think it applicable in this case. Appellant George Lewis, by his testimony, sought to
prove that he and his brother were not at the laundry at the time of the commission of the
offense, but somewhere along the Southern Pacific railroad tracks, in or near Sparks. The
testimony introduced tended, however slightly it may be, to show that William Lewis was
elsewhere and at or near the scene of the robbery when it was committed. In this respect it
was obviously rebuttal under the rule recognized, even though properly a part of the state's
case in chief.
17. Furthermore, it is a generally accepted rule, regardless of the defense interposed, that
where rebuttal testimony is offered, which should have been more properly introduced in the
opening, it is within the sound judicial discretion of the trial court to allow it, which
discretion is not reviewable in the absence of gross abuse. Goldsby v. United States, 160 U.
S. 70, 16 S. Ct. 216, 40 L. Ed. 343; 16 C. J. 868.
18. During the direct examination of the witness Hillhouse on the subject of his seeing an
overcoat in the car at Sparks, counsel for defense objected to one of the questions, stating,
among other grounds, that the testimony offered was properly a part of the state's case in
chief, and not in rebuttal of anything that was offered on behalf of the defendants. The court,
overruling the objection said, I think it is. The remark is assigned as error upon the
grounds, first, that it was a comment on the weight of the testimony, and, second, that it was
an oral instruction to the jury, given without the consent of the appellants. It amounts to
neither. The court was not talking to the jury, but to counsel, briefly assigning a reason for its
ruling. It was no more a comment on the weight of the testimony or an oral instruction than if
the court had said, it is relevant, or material, or competent.
The judgment should be affirmed, and it is so ordered.
____________
50 Nev. 234, 234 (1927) Duplantis v. Duplantis
DUPLANTIS v. DUPLANTIS
No. 2745
May 4, 1927. 255 P. 1014.
1. Appeal and ErrorEvidence, Incompetent.
Where case is tried to the court, reviewing court will presume that incompetent evidence was not
considered by the court.
2. TrialEvidence, Refusal to Strike.
In divorce action, refusal to strike evidence received without objection held not error.
3. DivorceEvidence, Conflicting.
In divorce action, where evidence was conflicting but sufficient to support trial court's finding of
wife's cruelty, judgment entered thereon will not be reversed.
Appeal and Error4 C. J. sec. 2726, p. 776, n. 57; sec. 2855, p. 883, n. 33; p. 884, n. 37.
Divorce19 C. J. sec. 479, p. 193, n. 32.
Trial38 Cyc. p. 1406, n. 58.
Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.
Action by Joseph C. Duplantis against Susanna Roberta Duplantis. From an order denying
defendant's motion for a new trial, and from a judgment for plaintiff, defendant appeals.
Affirmed.
Frank P. Langan, for Appellant:
On authority of Black v. Black, 48 Nev. 220, court held certain testimony insufficient for
granting divorce and stated that such ruling would dispose of motion thereon to strike. There
was therefore no evidence on point and court erred in considering it on either desertion or
cruelty.
That person is inclined to gossip does not impeach her truth or veracity. Question was as to
reputation, though general reputation was not involved. Answer was not responsive.
It is hearsay for witness to say he understood accusations against person were not
proven.
Fred L. Wood and Green & Lunsford, for Respondent:
If any doubt exists, it must be resolved in favor of finding of lower court.
finding of lower court. Findings of lower court will not be disturbed if there is substantial
evidence to support them. Black v. Black, 48 Nev. 220.
Counsel for plaintiff had right of searching examination of defendant as to whether her
attitude toward her husband or the marital relation would frustrate purposes of union.
Opposing counsel must make timely objection, not wait till he finds evidence unfavorable
and then move to strike. 3 Jones on Evidence, 1967.
OPINION
This is a suit for divorce. The complaint alleges two causes of actiondesertion and
cruelty. The answer denies the allegation of both causes of action and pleads an affirmative
and recriminatory defense. During the taking of plaintiff's testimony in support of the charge
of desertion an objection was made thereto. Later it was stricken on motion of counsel.
The court made specific findings in support of the allegations in the complaint charging
cruelty, but found that the evidence did not support the charge of desertion. The court also
found adversely to the defendant on her affirmative defense. Upon the findings thus made the
court entered its decree in favor of the plaintiff.
The court also found that the plaintiff is a fit and proper person to have charge, care, and
control of the minor children, and that the defendant is not such a person, and that the
children refuse to live with the defendant.
In due time memorandum of errors was filed, and a motion for a new trial was made and
denied. An appeal was taken from both the order denying the motion for a new trial and from
the judgment.
Counsel for appellant frankly state that they rely, on this appeal, chiefly on the proposition
that the evidence is insufficient to justify the decision and decree, basing this statement upon
the contention that the recriminatory defense was sustained by the evidence.
The vital principles of law involved are settled by previous decisions of this court
favorable to the views contended for by appellant, and nothing would be gained by a
restatement of them here.
1. Certain of the rulings are complained of by appellant relative to admissions of portions
of the testimony in evidence. As to some of the evidence so admitted the court announced at
the time that it had a doubt as to its worth, but would admit it and give it upon final
consideration only such weight as it was entitled to receive. In making this statement the
further statement of the court manifested a correct grasp of the principles of law involved. In
such a situation, it would be highly improper to reverse the judgment. Whether the evidence
was incompetent or not we think is immaterial, for the reason that the case having been tried
to the court, it would be presumed that it was not considered in reaching a conclusion, in view
of the statements made. Curtis v. Peterson (Ariz.) 251 P. 723; Peters v. Lohr, 35 S. D. 372,
152 NW. 504.
2. It is further contended that the court erred in refusing to strike certain evidence. The
evidence in question was received without objection. In view of the entire situation presented,
we cannot say that the court erred in its ruling. Cohen v. Clark, 44 Mont. 151, 119 P. 777;
Jones on Evidence (1896 ed.), sec. 898.
We do not deem it necessary to review the evidence in this case. It is a case in which the
trial court was unusually favorably situated to determine the correct conclusion to be drawn,
and no good would result from a statement of it.
There is one very remarkable thing about the case. The 15 year old son of the parties was
called as a witness. He testified in behalf of the father, flatly contradicting the testimony of
the defendant in several of her statements. Usually the son is inclined favorably to the mother.
Counsel contends that the father sought to prejudice the boy against the mother. We find
nothing in the record to justify this contention. The boy testified that his father told him to
visit his mother and to respect her.
to respect her. He said, however, that he had not visited her for months and had no desire to
do so, this, too, in the face of the fact that her moral character is unimpeached and
unquestioned.
3. We find no prejudicial error in the record in this case. The evidence being conflicting
but sufficient to support findings, we will not reverse the order and judgment. Black v. Black,
48 Nev. 220, 228 P. 889.
It is ordered that the judgment and decree be affirmed.
____________
50 Nev. 237, 237 (1927) Cawley v. Pershing County
CAWLEY v. PERSHING COUNTY
NO. 2746
MAY 4, 1927. 255 P. 1073.
1. Sheriffs and ConstablesSalary, Unaudited Claim.
Constable's claim against county for salary additional to that allowed by county commissioners under
Stats. 1919, c. 220, held barred where no presentment was made to board of county commissioners within
six months from time claim became due and payable under Stats. 1865, c. 80, sec. 25 (Rev. Laws, 1524),
covering all unaudited claims; claim of constable being unaudited claim in view of Stats. 1865, c. 80,
secs. 8, 9, 12, 24, though demand was claimed to be fixed by law.
2. Constitutional LawDelegation of Legislative Power.
Stats. 1919, c. 220, authorizing boards of county commissioners to fix compensation of township
officers, held not unconstitutional delegation of legislative power, as Const. art. 4, sec. 32, as
amended, requiring legislature to provide for election of certain officers, does not include township
officers.
3. Constitutional LawAmendment.
In amending statute or constitutional provision, omission of portion of original provision carries
implication that omitted part was intended to be ineffective.
4. StatutesLimitation of Legislative Power.
Power of county commissioners to regulate salary of township officers, under Stats. 1919, c. 220, held
not in conflict with Const. art 4, sec. 20, restricting legislative powers.
Constitutional Law12 C. J. sec. 95, p. 725, n. 11 (new); sec. 358, p. 862, n. 49, 51.
Counties15 C. J. sec. 173, p. 507, n. 6.
Courts15 C. J. sec. 304, p. 916, n. 90.
Sheriffs and Constables35 Cyc. p. 1603, n. 76; p. 1605, n. 96 (new).
Statutes36 Cyc. p. 1016, n. 74; p. 1080, n. 52.
Towns38 Cyc. p. 626, n. 83.
Appeal from Sixth Judicial District Court, Pershing County; L. O. Hawkins, Judge.
Action by Michael Cawley against Pershing County. Judgment for defendant on three
causes of action alleged and for plaintiff on the fourth, and both parties appeal, plaintiff being
designated appellant. Affirmed as to plaintiff's appeal, and reversed as to defendant's
appeal.
H. J. Murrish and Campbell & Robins, for Cawley:
Only unaudited claim can be reduced or rejected. When compensation of officer is fixed
by law and no judicial inquiry is necessary to determine amount it is audited by law itself.
Rev. Laws, 4967; State v. Lander Co., 22 Nev. 71; Alden v. Alameda Co., 43 Cal. 270; 20
Cyc. 235; McCoy v. Handlin, 153 NW. 361.
Claim for service performed at request of officials, or for damages, must be audited.
Crouch v. Pyle, 96 NW. 1049; Chase Co. v. Kelley, 95 NW. 865.
Other necessary officers was omitted from amendment to section 32, article 4, but
section 20 was amended on same day and power of legislature to establish and regulate
compensation and fees of county and township officers was reserved. State v. Clarke, 21 Nev.
335.
California act under which Ryan v. Riley, 224 P. 1027, was decided was complete in itself
and carried police, legislative and judicial powers, one of which was fixing of salaries.
California had no statute limiting that power to legislature. Ryan v. Riley is based solely on
text in 12 C. J. 859, holding statutes authorizing local authorities to fix salaries of local
officers generally valid, and is no basis for reversing. Moore v. Humboldt Co., 48 Nev. 397.
Besides, C. J. text is based on Wisconsin cases, whose legislature had authority to confer such
power on local boards.
True test is whether duty pertains exclusively to legislature. Florida v. Ry. Co., 57 So. 969.
That fixing of salary of officer is legislative function is fully debated in Smith v. Strother, 8 P.
852, which has been quoted and upheld but never criticized in California.
and upheld but never criticized in California. Stevens v. Truman, 59 P. 398; Pratt v. Browne,
67 P. 1083; Bertim v. Mattison, 159 P. 1171. Ryan v. Riley ignores these cases.
In absence of constitutional prohibition legislature has right to create municipal
organizations and confer upon them power of local government. Opinion of Justices, 100 A.
49; Cooley, Con. Lim. (7th ed.) 163, 264.
No case examined, except Ryan v. Riley and Territory v. Whitney, 7 Ann. Cas. 737,
sustains text in 12 C. J. 859.
Thos. E. Powell, District Attorney, for Pershing County:
We find no authority for statement that Rev. Laws, 3967the one-year limitationrefers
only to unaudited claims. The six-months' limitation, Rev. Laws, 1524, refers specifically to
unaudited claims.
Audit means generally, to examine, adjust, pass upon or settle, but in Rev. Laws, 1508, it
means to examine, settle and allow. Examine, settle and allow and audit and act upon are
used interchangeably in our law. Claim for salary, even though fixed by law, must be audited.
State v. Spinner, 22 Nev. 213.
Rev. Laws, 1512, provides that no claim shall be allowed without first deducting
indebtedness, if any. Many reasons might arise for reducing or rejecting officer's claim for
salary. 15 C. J. 507; Mitchell v. Clay Co., 98 NW. 662; Zuelly v. Casper, 92 NE. 875.
Prior to amendment of 1889, section 32 of article 4 imposed duty on legislature to fix
salaries of enumerated and other necessary officers. Amendment of 1889 omitted words
and other necessary officers. This left legislature with power to fix salaries of officers
omitted (as all powers are reserved which are not prohibited) but there was no mandatory
duty imposed, and legislature therefore could either exercise that power or delegate it. There
is distinction between powers which legislature may, and those which it must, exercise. It
may delegate power to fix local salaries.
may delegate power to fix local salaries. 12 C. J. 857; Ryan v. Riley, 223 P. 1027; Territory v.
Whitney, 7 Ann. Cas. 737; Opinion of Justices, 100 A. 49; Givens v. Daviess Co., 17 SW.
998.
Moore v. Humboldt Co., 48 Nev. 397, should be reversed. Stats. 1919, c. 220, is
constitutional and unrepealed. Moore case is based on sole contention that fixing constable's
salary is legislative function which cannot be delegated. Appellant cites Idaho case of
Reynolds v. Commissioners, 59 P. 930, in support of contention. That case held it was not
legislative function, but quasi-judicial one. If function is not legislative, there can be no
objection to delegating it. Section 20 has no bearing, though Moore case was grounded solely
on its provision, without reference to section 32. Special acts fixing local officers' salaries
were held valid in State v. Fogus, 19 Nev. 247, and State v. Spinner, 22 Nev. 213. It is
illogical to say section 32, as amended, relieved legislature of power to fix local officers'
salaries, but that section 20, passed the same day, again laid on it that burden. Last clause of
section 20 is merely interpretive.
If act of 1919 is unconstitutional, so also must be town government act of 1865, Rev.
Laws, 877 to 893, though its constitutionality has never yet been questioned.
OPINION
Both parties in this case have appealed. The parties will be alluded to as they were
designated in the trial court. The plaintiff pleaded four causes of action in his complaint.
Judgment was rendered against the plaintiff on the first three causes of action and in his favor
on the fourth cause of action. The plaintiff has abandoned his appeal as to his first and third
causes of action, leaving the ruling on the second cause of action to be determined on his
appeal. Both parties moved for judgment on the pleadings, and it was on these motions that
the judgment was rendered.
For a second cause of action the plaintiff alleges that he was the duly qualified and acting
constable in and for Lake Township, Pershing County, from the 5th day of March, 1922, to
the 5th day of January, 1923; that the salary of said office during said period was $150 per
month; that prior to the commencement of this action the plaintiff presented his claim to the
board of county commissioners of Pershing County for allowance for said period of time in
the sum of only $100 per month, and that the same was allowed; that thereafter, and on
March 5, 1925, he presented his claim duly sworn to, for the balance of $50 per month during
each of said months, and that the same was disallowed and rejected in its entirety.
The defendant filed both a demurrer and an answer to said second cause of action. The
first ground of demurrer was that it did not state facts sufficient to constitute a cause of
action. Another was that it appeared from the complaint itself that the said cause of action
was barred by the statute of limitations.
The answer admitted the allegations as to the official services rendered, but denied that
anything was due the plaintiff. As an affirmative defense the answer pleaded that the board of
county commissioners of Pershing County, by an appropriate resolution adopted in July,
1920, fixed the salary of the constable of Lake Township for the years 1921 and 1922,
pursuant to chapter 220, Stats. 1919, at $100 per month; that in addition to the sum of $100
per month allowed and paid the plaintiff for services as constable as alleged, the plaintiff
collected and retained for his own use and benefit, and as compensation for his services as
such constable, all fees in civil cases and all mileage and per diem as provided and allowed
by law. The defendant also affirmatively pleaded the statute of limitations as to this cause of
action.
For a fourth cause of action the plaintiff alleged that he was the duly elected, qualified, and
acting constable of Lake Township, Pershing County, Nevada, from the 5th day of March,
1924, to the 5th day of February, 1925,
1925, and that during all of said period he performed all of the duties of said office; that the
salary of said office during that period was $150 per month; that prior to the commencement
of the action, and on and for each month, he presented his claim for salary for each of said
months in the sum of $150 to the board of county commissioners of said county for approval
and allowance, but that the said board refused to allow the same or any part thereof except the
sum of $1.
The defendant both demurred to and answered said cause of action. The grounds of
demurrer were the same as to the second cause of action.
Answering the said fourth cause of action, the defendant denied all liability. For an
affirmative defense the defendant alleged that at the regular meeting of the board of county
commissioners of Pershing County, held in the month of July, 1922, said board adopted a
resolution fixing the salary of the constable of Lake Township at $1 per annum for the years
mentioned in plaintiff's said fourth cause of action. Other matter was pleaded in defense to
this cause of action, but, not having been urged, is deemed waived.
The court sustained the plea of the statute of limitations to the second cause of action upon
the ground that the claim of the plaintiff was not presented to the board of county
commissioners within the time prescribed by section 25 of an act entitled, An act to create a
board of county commissioners in the several counties of this state, and to define their duties
and powers (chapter 80, Stats. 1865 [Rev. Laws, 1912, sec. 1524]), which reads:
All unaudited claims or accounts against any county in this state, shall be presented to the
board of county commissioners of said county, duly authenticated, within six months from
the time such claims or accounts become due or payable. * * *
1. It is the contention of the plaintiff that the section quoted has no application to the
situation in hand since, as he claims, his demand is one fixed by law, and hence is not an
unaudited claim. We will assume for the purpose of the case that the salary of the plaintiff
is fixed by law, and, upon that assumption, determine if the claim is an unaudited one in
the sense in which that word is used in the statute.
purpose of the case that the salary of the plaintiff is fixed by law, and, upon that assumption,
determine if the claim is an unaudited one in the sense in which that word is used in the
statute. With this statement assumed as correct, let us consider the statutory provisions which
we think must be looked to for guidance for the arrival at a correct solution of the problem.
The act referred to, of which the section quoted is a part, is regulatory of the county
government, and, we take it, so far as the various sections pertain to the subject in question,
must be read together.
Section 8 of the act reads:
The board of [county] commissioners shall have power and jurisdiction, in their
respective counties: * * * To examine, settle, and allow all accounts legally chargeable
against the county. * * *
Section 9 reads:
Every demand against the county, except the salaries of the auditor and district judge or
judges, shall be acted on by the board of county commissioners, and allowed or rejected in
order of presentation. * * *
Section 12 reads:
No demand upon the treasury shall be approved by the board of county commissioners, *
* * in favor of any person or officer in any manner indebted to the county, without first
deducting the amount of such indebtedness; * * * nor to any officer who shall have neglected
or refused to comply with any of the provisions of this or any other act, regulating the duties
of such officer, on being required, in writing, to comply therewith by any member of the
board of county commissioners.
Section 24 provides:
No person shall sue a county in any case for any demand, unless he or she shall first
present his or her claim or demand to the board of county commissioners and county auditor,
for allowance and approval. * * *
Section 25 reads:
All unaudited claims or accounts against any county in this state, shall be presented to the
board of county commissioners of said county duly authenticated, within six months from
the time such claims or accounts become due and payable.
commissioners of said county duly authenticated, within six months from the time such
claims or accounts become due and payable. * * *
If the statute upon which reliance is had to support the contention that plaintiff's salary is
fixed by law contained a provision that before any month's salary should be paid the claimant
should present his claim to the board of county commissioners for its examination,
settlement, and allowance, there would be no question but that such course would have to be
pursued notwithstanding the fact that the salary is fixed by law. No doubt counsel for the
plaintiff would even concede the accuracy of this statement. What is the difference between a
situation in which such a provision is incorporated in an act fixing a salary, and where it is in
a general statute which is in pari materia with the salary act? There can be none. It is the law
in both cases.
We do not deem it necessary in this case to indulge in hairsplitting argument as to the
meaning of the word unaudited; what we must ascertain is: What are the requirements of
the 1865 act as to the presentation of claims against the county to the board of county
commissioners for allowance? This does not seem a difficult task.
Section 9 of the act tells us what demands against the county shall be acted upon by the
county commissioners, and in doing so, it excepts only two, that of the auditor and the judge.
Thus, by the express terms of this section it is provided that the board of county
commissioners shall act uponallow or rejectthe claim of the plaintiff, though it does not
name the plaintiff, or even the class to which he belongs. But this is not necessary, for the
language used is all-embracing except as stated. Here are four sections of the act in question
which point out the necessity of the presentation of all claims, except as noted, to the board of
county commissioners for their consideration and action, which may be either by allowance
or rejection as a whole or by allowance in part only. Can there be any mistake after a
consideration of all of these sections just what construction should be put upon the word
"unaudited" in the connection in which it is used?
should be put upon the word unaudited in the connection in which it is used? We think not,
nor do we think we should look for some dark, hidden meaning to be given it, but that it
should be construed in the sense it was obviously usedthat is, as referring to all claims
except those specifically excepted in section 9. We think the case of Thornburg v. Hermann,
1 Nev. 473, is an authority in support of our conclusion.
Counsel for the plaintiff directs our attention to certain cases from other jurisdictions, but
they do not aid us in construing our statute.
The judgment on the second cause of action is right and must be affirmed.
2. We come now to a consideration of the cross-appeal of the defendant taken from the
judgment rendered on the fourth cause of action. This appeal involves the constitutionality of
the statute of 1919 authorizing the various boards of county commissioners of the state to fix
the compensation of township officers. Stats. 1919, p. 395. This question was involved in
Moore v. Humboldt County, 48 Nev. 397, 232 P. 1078, wherein we held contrary to the
contention of the defendant in this case. A point is made in this case which was not made or
considered in the Moore case which we think is good, and which justifies a different
conclusion from that reached in that case.
It is now said that while our conclusion was correct under section 32, art. 4 of the
constitution, as originally adopted, the amendment necessitates a different conclusion. The
section in question as originally adopted reads:
Sec. 32. The legislature shall provide for the election by the people of a clerk of the
supreme court, county clerks, county recorders, who shall be ex officio county auditors,
district attorneys, sheriffs, county surveyors, public administrators, and other necessary
officers, and fix by law their duties and compensation. County clerks shall be ex officio
clerks of the courts of record and of the boards of county commissioners, in and for the
respective counties. The section was amended in several respects, but the only
amendment material to this situation is the omission of the words, "other necessary
officers."
The section was amended in several respects, but the only amendment material to this
situation is the omission of the words, other necessary officers. By this amendment, it is
contended that the omission of the mandatory provision of the section as originally adopted to
the effect that the legislature shall fix the compensation of township officers indicates an
entirely different intent, and that pursuant to the amendment the authority in question may be
delegated.
3. It is a well-recognized general rule that in amending a statute or constitutional
provision, the omission therefrom of a portion of the original provision carries the implication
that it was the intention that the omitted part should cease to be of force or effect. 36 Cyc.
1080.
Coming now to the main contention urged in behalf of the defendant, we must say that we
believe it is the correct view. A situation similar to that which confronts us arose in
California. In the case of Dougherty v. Austin, 94 Cal. 601, 28 P. 834, 29 P. 1092, 16 L. R. A.
161, and in Sarter v. Siskiyou County, 42 Cal. App. 530, 183 P. 852, it was held that the
power to regulate the salaries of certain officers could not be delegated. Later the question
again came before the same courts in Scott v. Boyle, 164 Cal. 321, 128 P. 941, and in Ryan v.
Riley, 65 Cal. App. 181, 223 P. 1027, wherein it was held that because of an amendment to
the constitution which authorized the legislature to create certain offices and regulate their
compensation, the legislature could delegate the authority to regulate the compensation of
such officers.
The court in Scott v. Boyle, supra, in speaking of Dougherty v. Austin, supra, said:
That case decided that said section 5 confided to the legislature itself the duty to regulate
and fix the compensation of county officers and that it could not delegate this duty, or any
part of it, to a county board of supervisors. We are of the opinion that the provision of that
section requiring the legislature to regulate the compensation of the officers referred to
therein does not apply to offices created by the legislature, under said section 14, to exercise
a part of the police powers of the state which the provisions of the latter section, both in
its original form and as amended, recognize as something distinct from the general
political functions of counties and cities and the general scheme of county or municipal
government."
14, to exercise a part of the police powers of the state which the provisions of the latter
section, both in its original form and as amended, recognize as something distinct from the
general political functions of counties and cities and the general scheme of county or
municipal government.
This reasoning sustains the contention made in behalf of the defendant to the effect that
while section 32 of article 4 of our constitution as originally adopted made it mandatory upon
the legislature to regulate the compensation of township officers, the amendment took away
the mandatory character of the section, which left it optional with the legislature either to
exercise or delegate the authority. Such, too, is the rule adopted in Ryan v. Riley, supra.
4. There is nothing in section 20, art. 4 of the constitution, to justify a different
conclusion. That section is one limiting legislative authority.
For the reasons given, the judgment is affirmed as to the plaintiff's appeal and reversed as
to the defendant's appeal.
____________
50 Nev. 247, 247 (1927) Ritts v. Humboldt County
RITTS v. HUMBOLDT CO.
No. 2730
May 4, 1927. 255 P. 1076.
Appeal from the Sixth Judicial District Court, Humboldt County; L. O. Hawkins, Judge.
Campbell & Robins and J. T. Dunn, for Appellant.
L. G. Wilson, Merwyn H, Brown and Thos. A. Brandon, for Respondent.
Per Curiam:
The facts of this case are substantially the same as in the case of Cawley v. Pershing
County, No. 2746 [supra], this day decided. Upon the authority of that case it is ordered that
the judgment in favor of the defendant county be affirmed, and that the judgment in favor of
the plaintiff, Ritts, be reversed.
____________
50 Nev. 248, 248 (1927) Ex Parte Malley
EX PARTE MALLEY
No. 2775
June 3, 1927. 256 P. 512.
1. BailAccused Cannot Determine Amount.
Notwithstanding purpose of constitutional provision to prevent fixing of bail in so great an amount as
to preclude bond being given, it was not intended that accused should be the one to say whether he could
give bail in certain amount or when it would be excessive.
2. BailBail Must Not, Under Constitutional Provision, Be More Than Accused Can Be
Expected to Give.
Bail must not be in an amount more than accused can reasonably be expected to give under the
circumstances, for, if so, it is, under the constitutional provision, substantially a denial of bail.
3. BailPrisoner's Mere Inability To Procure Bail Does Not Render Amount Excessive.
Mere inability to procure bail does not of itself make amount excessive, but regard must be had to the
circumstances of the prisoner in connection with the turpitude of the crime and the punishment involved.
4. BailAccused Presumed Guilty.
In an original proceeding in habeas corpus to obtain reduction of bail under seven indictments under
Rev. Laws, 648, 2824, and 6664, including a charge of embezzlement of state funds and securities, the
petitioner held presumed to be guilty of the offenses charged.
5. BailNot Excessive.
Bail of $100,000 held not excessive under seven indictments under Rev. Laws, 648, 2824, 6664,
including charge of embezzlement of funds and securities of the value of $516,000 belonging to the state,
for which accused, if convicted under all of them, might be given cumulative sentence, under section
7256, of more than 100 years' imprisonment and fines aggregating $20,000.
6. BailAccused's Alleged Inability to Procure Bail in Amount Fixed Held Not
Determinative, Even if Supported by Evidence.
Alleged inability of one accused under seven indictments, including indictment charging
embezzlement of state funds and securities having value of $516,000, to furnish greater bail than
$25,000, though it should be considered in original proceeding in habeas corpus to reduce bail, is not
determinative, even if supported by evidence, since real purpose of bail is to assure presence of accused,
and he must be presumed guilty.
7. BailSupreme Court Will Not Order Reduction of Bail, Unless Amount Appeared Per Se
Unreasonably Great.
The supreme court is not justified in ordering reduction of bail, unless the amount appears per se
unreasonably great and disproportionate to the offense charged.
Bail6 C. J. sec. 221, p. 989, n. 5 (new); sec. 222, p. 989, n. 8-12; sec. 223, p. 991, n. 21; sec 224, p. 991,
n. 26.
Original habeas corpus by Ed Malley against the Sheriff of Ormsby County for reduction
of bail. Petition denied, proceedings dismissed, and petitioner ordered remanded.
McCarran & Mashburn, for Petitioner:
Court should consider all circumstances and conditions surrounding petitioner; his
inability to raise $100,00 bail; his long residence in state, and former good reputation; that his
family lives here; that all his interests are here; that he is a marked man; that escape is
impossible; that purpose of bail is only to secure presence of defendant at trial; that any
conditions could be imposed, such as reporting daily to sheriff; that punishment should
follow conviction, not precede it, or be inflicted in spite of possible acquittal. Ex Parte Jagles,
44 Nev. 370.
President of State Bank & Trust Company indicted for embezzlement in 1908 was held in
sum of $5,000. In extradition cases bail has never to our knowledge been fixed at sum to
exceed $2,000 or $2,500.
M. A. Diskin, Attorney-General; Wm. Forman, Jr., Lester D. Summerfield, N. J. Barry,
Deputy Attorneys-General; John Chartz, District Attorney, for Respondent:
Discretion of trial court in fixing bail will not be disturbed unless abuse is shown. 6 C. J.
991.
For purpose of fixing bail, defendant is presumed guilty. Ex Parte Duncan, 53 Cal. 410; In
Re Scott, 38 Nebr. 502, 56 NW. 1009; Ex Parte Haynie (Okl. Cr. App.), 241 P. 209.
Ex Parte Jagles, 44 Nev. 370, was mere gross misdemeanor case; bail was $3,000. Ex
Parte Douglas, 25 Nev. 425, was grand larceny of cattle worth $540; bail fixed at $5,000 was
reduced only to $3,000. In Ex Parte Duncan, 53 Cal.
Duncan, 53 Cal. 410, bail was fixed at value of property taken. In People v. Tweed, 63 N. Y.
202, embezzlement was $6,000,000; bail was $3,000,000. But in Ex Parte Snow, 1 R. I.,
embezzlement by treasurer of $70,000 or $80,000, bail was fixed at $125,000, the court
saying: It is offense which strikes deep upon the community and the funds and effects of the
state. In no case found is bail reduced which is placed at less than 25% of value of property
taken.
OPINION
Per Curiam:
This is an original proceeding in habeas corpus, instituted for the purpose of procuring an
order directing the reduction of a bail bond. There is no question as to whether such a
proceeding is the correct one to obtain the end sought.
The petition alleges that on May 20, 1927, the grand jury of Ormsby County, Nevada,
returned seven indictments against the petitioner and two others. The first indictment,
omitting technical formalities, charges that the petitioner, being the duly elected, qualified,
and acting treasurer of the State of Nevada, had in his possession as such state treasurer
money, funds, and securities of the value of $516,000 belonging to the State of Nevada, and
that said petitioner did on May 7, 1927, feloniously embezzle and convert said property to his
own use.
The second indictment charges the petitioner, in conjunction with one George A. Cole and
one H. C. Clapp, with a felony, in using a bank to injure, deceive, and defraud, in violation of
section 648, Rev. Laws of Nevada, 1912, by causing to be issued to petitioner as state
treasurer by H. C. Clapp, as cashier of the Carson Valley Bank, a corporation, on December
31, 1926, a cashier's check for $399, 257. 27, when no money or other consideration had been
paid to said bank by the petitioner therefor, with the purpose and intent to cover and conceal
the fact that the petitioner had converted and misappropriated securities, money, and funds of
the State of Nevada of the value of $399,257.27. The third indictment charges the same
offense as is charged in the second, except that the amount of such cashier's check is
alleged to be $67,065.
The third indictment charges the same offense as is charged in the second, except that the
amount of such cashier's check is alleged to be $67,065.
The fourth indictment is identical with the second and third, except that the amount of the
cashier's check is alleged to be $49,999.89.
The fifth indictment charges the petitioner, in conjunction with said Cole and Clapp, with
embezzlement in violation of said section 648, Rev. Laws, 1912, as follows: That defendant
Clapp during all of the years of 1919, 1920, 1921, 1922, 1923, 1924, 1925, 1926, and 1927 to
and including April 24, 1927, was cashier of the Carson Valley Bank, a corporation existing
under the laws of the State of Nevada, and as such cashier had in his possession, custody, and
control money, funds and securities of the value of $516,822.16, belonging to and the
property of said bank; that on or about April 24, 1927, the said Clapp did embezzle, convert,
and misappropriate the said moneys, funds, and securities to his own use, with intent to steal
the same, and that the petitioner and said Cole did feloniously aid, abet, and encourage said
crime.
The sixth indictment charges the petitioner and said Cole and Clapp with forgery, as
defined by section 6664, Rev. Laws of Nevada, as follows: That the said Cole was during all
of the year 1926 the duly elected, qualified and acting state controller of the State of Nevada;
that on or about December 31, 1926, the said Cole drew, made, and delivered to H. C. Clapp,
as cashier of the Carson Valley Bank, a certain warrant drawn upon the state treasurer of
Nevada, in the amount of $392,700; that the drawing, making, and delivery by said Cole to
the said Clapp was a material matter to the public records and accounts of the office of
controller of the State of Nevada; that the defendant Cole, on or about the 31st day of
December, 1927 (evidently meant for 1926) did then and there fraudulently and feloniously,
with intent to injure and defraud the State of Nevada and the people of said state and said
bank, fail to make a true, or any, entry in the records and accounts of the office of the
controller of the State of Nevada of or concerning said check, although he, the said Cole,
well knew it was his duty so to do; that said petitioner and said Clapp did aid, abet, and
encourage the said Cole to commit the crime of forgery in manner and form aforesaid.
office of the controller of the State of Nevada of or concerning said check, although he, the
said Cole, well knew it was his duty so to do; that said petitioner and said Clapp did aid, abet,
and encourage the said Cole to commit the crime of forgery in manner and form aforesaid.
The petitioner, jointly with George A. Cole and H. C. Clapp, in the seventh indictment, is
charged with a felony as defined in section 2824, Rev.Laws, committed as follows: That said
Cole, during all of the year 1926, was the duly elected, qualified, and acting controller of the
State of Nevada; that on or about December 31, 1926, said Cole, as such controller, willfully,
fraudulently, and feloniously did receive to his own use and benefit a controller's warrant of
the State of Nevada in the sum of $392,700; that the petitioner and said Clapp did feloniously
aid and abet the said Cole in the commission of said offense.
The petitioner further avers that on the 21st day of May, 1927, the petitioner and said Cole
and Clapp were arraigned in the First judicial court of the State of Nevada, on each of said
indictments, and that at that time the court fixed the bail bond of petitioner at $100,000 on all
of said indictments combined, and ordered that the petitioner be admitted to bail in the sum of
$100,000, and further ordered that the petitioner be remanded to the custody of the sheriff of
Ormsby County until the petitioner give bail in the sum mentioned, and, upon the failure of
the petitioner to give bond in said sum, the sheriff imprisoned the petitioner in the county jail
of Ormsby County, Nevada, where he has since been illegally restrained; that all of the crimes
so charged are bailable offenses, and that the bail so fixed is excessive and disproportionate
to the bail necessary to assure the presence of the petitioner for trial, and is out of proportion
and in excess of the nature of the offenses charged, the penalty which might be inflicted, the
danger of the failure of the petitioner to appear, his character and reputation, and that the
petitioner is unable to give the same.
The return of the sheriff is to the effect that he has custody of the petitioner pursuant to the
indictments and the order of the court fixing the amount of the bail bond and petitioner's
failure to execute such bond.
1. In support of the contentions made by petitioner, reliance is had upon Ex Parte Jagles
and Varnes, 44 Nev. 370, 195 P. 808. There is little in the matter mentioned to aid us in the
one before us. It is true that we said in that matter that it was the purpose of the constitutional
provision mentioned therein to prevent the fixing of a bail bond in so great a sum as to
preclude its being given, and that it was the idea of the framers of the constitution that
punishment should follow conviction, and not both precede and follow it, or be inflicted in
spite of possible acquittal. However, it was not the idea of the constitutional convention that
the person charged with a crime should be the one to say whether or not he can give bail in a
certain amount, or to say when the amount fixed is excessive.
2, 3. The correct rule controlling in the situation presented is stated in 6 C. J. 989, as
follows:
Bail must not be in a prohibitory amount, more than the accused can reasonably be
expected under the circumstances to give, for if so it is substantially a denial of bail within
the constitutional provision. However, a mere inability to procure bail in a certain amount
does not of itself make such amount excessive; but regard must be had to the circumstances
and ability of the prisoner, in connection with the atrocity of the offense, or the turpitude of
the crime and the punishment involved, in determining whether the bail is or is not
excessive.
4. In a proceeding of this character the petitioner is presumed to be guilty of the offenses
charged in the indictments. Ex Parte Duncan, 53 Cal. 410; Ex Parte Haynie (Okl. Cr. App.),
241 P. 209; In Re Scott, 38 Neb. 502, 56 NW. 1009.
5. With these observations in mind, let us inquire if the amount of bail bond fixed is
excessive and disproportionate to the offense charged.
The petitioner is held under seven indictments, conviction under four of which might
subject him to a term in the state prison of 20 years each, and, if convicted under all of them,
and given a cumulative sentence, as seems may be done (section 7256, Rev. Laws, 1912; Ex
Parte Gafford, 25 Nev. 101, 57 P. 484, 83 Am. St. Rep. 568), he might be sentenced to serve
for a period of more than 100 years.
Counsel for the state have called to our attention several cases in which bail bonds larger
in proportion to the amount embezzled than in the instant case were held not excessive.
In People v. Tweed, 63 N. Y. 202; Id., 50 How. Pr. (N.Y.) 26. where Tweed was charged
with embezzling $6,000,000, the court held that a bail in the sum of $3,000,000 was not
objectionable. In Ex Parte Snow, 1 R. I. 360, wherein the petitioner was charged with
embezzling between $70,000 and $80,000, and bail bond was fixed at $25,000, the court
refused to reduce the amount of bail bond, saying:
The bail required ought to be such as will afford a reasonable security that the prisoner
will abide the sentence of the court, should he be found guilty. If a man has fifty thousand
dollars and only five thousand is demanded, it would afford no security.
In Re Scott, supra, it appears that the petitioner was charged with having embezzled as
county treasurer the sum of $70,000, and bail bond was fixed at $24,000. On application for a
reduction thereof the court held that the amount of the bail bond was not excessive.
In Ex Parte Douglas, 25 Nev. 425, 62 P. 49, wherein the petitioner was charged with
stealing 18 head of cattle of the value of $540, the court held that a $3,000 bond was proper.
In Ex Parte Duncan, 53 Cal. 410, it appears that the petitioner was indicted in ten
indictments for embezzling the sum of $112,000, and was held to answer in that sum. On
application for a reduction of the bond the supreme court refused to say that such a bond was
excessive. The same matter was before the court again after two trials in which there had
been a hung jury, and the court again refused to reduce the amount of the bail.
after two trials in which there had been a hung jury, and the court again refused to reduce the
amount of the bail. Ex Parte Duncan, 54 Cal. 75.
6, 7. It is said that the petitioner is unable to furnish bail in excess of $25,000. The ability
of one charged with a crime to give the bail fixed is an element to be considered in an
application of this character, but we have the bare statement of counsel to support the
contention; there is no evidence before us to support it, and, even if there were, we would not
deem it determinative of the matter, for the real purpose of bail is to assure the presence of
one charged at all times when demanded. As we have observed, the petitioner must be
presumed, in an application of this kind, to be guilty as charged, and, before we can be
justified in ordering a reduction of the bail, it must appear per se unreasonably great and
disproportionate to the offense charged.
The bond fixed is less than one-fifth of the amount charged to have been embezzled, a sum
relatively small in comparison. When we consider that the petitioner may be sentenced to
serve a period in excess of 100 years and to pay fines aggregating $20,000, in connection with
the other elements entering into the case, we are unable to say per se that the amount of the
bail fixed is excessive or disproportionate to the crime charged.
For the reasons given, it is ordered that the petition be denied, and that these proceedings
be dismissed, and that petitioner be remanded.
____________
50 Nev. 256, 256 (1927) State v. Cyty
STATE v. CYTY
No. 2764
June 14, 1927. 256 P. 793.
1. Criminal LawPrejudicial Argument.
In action for assault with intent to kill, statement of district attorney in closing argument that as
defendant told me he gloried in fact he would use a gun, clearly indicating that statement was made to
the district attorney privately, was grossly improper and highly prejudicial and warranted reversal of
conviction.
2. Criminal LawPrejudicial Argument.
In a criminal prosecution, it is duty of the trial court, unsolicited, to reprimand instantly grossly
improper and prejudicial conduct of the district attorney in argument.
3. Criminal LawPrejudicial Cross-Examination.
In prosecution for assault with intent to kill, question to defendant as to whether he ever used a gun on
a man before was manifestly improper and unfair.
4. HomicideImproper Instruction.
In prosecution for assault with intent to kill, charge on elements necessary to authorize the killing of
another person in self-defense was inapplicable.
5. Criminal LawImproper Instruction.
It is error to give an instruction which is not applicable to the crime alleged in the information.
6. Criminal LawImproper Instruction.
In prosecution for assault with intent to kill, charge that it was unlawful to carry concealed weapons
should not have been given.
Criminal Law16 C. J. sec. 2229, p. 892, n. 5; sec. 2235, p. 894, n. 36; sec. 2242, p. 897, n. 93; p. 898, n.
95, 96; sec. 2270, p. 915, n. 45; sec. 2482, p. 1041, n. 12; 17 C.J. sec. 3638, p. 300, n. 41.
Homicide30 C. J. sec. 610, p. 356, n. 90; sec. 627, p. 380, n. 92; p. 381, n. 93.
Appeal from the Fifth Judicial District Court, Nye County; Frank T. Dunn, Judge.
John Cyty was convicted of assault with a deadly weapon with intent to inflict bodily
injury, and he appeals. Reversed, and new trial granted. (Ducker, J., dissenting.)
It is error for prosecutor to state in his argument anything as fact which is not in evidence.
State v. Scott, 37 Nev. 432
50 Nev. 256, 257 (1927) State v. Cyty
Scott, 37 Nev. 432; L. R. A. 1918D, 7; State v. Givens, 152 P. 1054.
It is error for prosecutor to ask defendant on cross-examination if he ever committed some
other crime, when such question is without foundation or connection with crime charged, or
without offer to show its materiality, even though prosecutor is rebuked and jury instructed to
disregard. People v. Wells, 34 P. 1078; Leahy v. State, 48 NW. 390.
It is error to instruct on self-defense, leaving out clause that if defendant acting as
reasonable man believes it necessary to commit act to protect himself, he is justified. Rev.
Laws, 6402; State v. Scott, 142 P. 1053; State v. Vaughn, 22 Nev. 285.
It was error to give instruction on carrying concealed weapon when crime charged is assault
with intent to kill, as first is not necessarily included in second offense. People v. Bond, 1
Nev. 33; State v. McGinnis, 5 Nev. 337; 16 C.J. 1042.
Joseph T. Murphy, District Attorney, for Respondent:
Verdict will not be disturbed if there is substantial evidence to support it. State v. Buralli,
27 Nev. 41.
Alleged prejudicial statement referred to evidence. Court said, That's his conclusion from
what testimony was. Statement of fair deduction from evidence is not error. L. R. A. 1918D,
6. If statement proved not prejudicial reversal will not be granted. District attorney is
authorized to base argument on evidence implying admission of facts charged. People v.
Swaile, 107 P. 134.
Other offenses can now be shown to show motive, intent, or manner of perpetration.
Morse v. Commonwealth, 111 SW. 714; Underhill, Crim. Ev. 200, 208. Prosecutor knew of
defendant's former use of gun; the cross-examination was to show black spots in career
painted so white on direct. There was no malice; question was asked in good faith, 8 Cal. Jr.
257; 16 C. J. 2229; People v. Allen, 137 Pa. 1148. If error was committed, instruction No.
50 Nev. 256, 258 (1927) State v. Cyty
was committed, instruction No. 50 instructed jury to disregard all evidence stricken, and all
questions to which objections had been sustained.
Instruction on self-defense is statutory. Rev. Laws, 6402.
Instruction on concealed weapons is also statutory. Rev. Laws, 6558. Defendant was
carrying gun illegally. He killed another while so committing illegal act and was therefore
guilty of manslaughter. Carrying concealed weapon was not presented as offense charged, but
as element of it.
OPINION
Defendant was charged with an assault with intent to kill, and convicted of the offense of
assault with a deadly weapon with intent to inflict bodily injury. He has appealed from both
the judgment and the order denying his motion for a new trial.
1. It is contended that the district attorney was guilty of misconduct prejudicial to the
defendant by the use of the following language in his closing argument:
As he told me to-day in talking to me, he gloried in the fact that he would use a gun. He
indicated that he would use a gun at the slightest provocation.
At the time of the statement counsel for the defendant took appropriate steps to protect the
rights of his client, and now assigns the remarks as prejudicial error. The court, in response to
counsel's attack upon the remarks quoted, said:
That is his conclusion from what the testimony was. The jury are to determine what the
facts are.
What is the reasonable inference to be drawn from the language of the district attorney?
Will it justify the statement of the trial court?
The district attorney did not say that the purported statement was made to him on
cross-examination in the presence of the court and jury, but as he told me in talking to me.
To our minds this language clearly implies only one situation, namely, that the statement was
made to the district attorney privately, and not while he was being cross-examined in
open court.
50 Nev. 256, 259 (1927) State v. Cyty
was made to the district attorney privately, and not while he was being cross-examined in
open court. Furthermore, a careful reading of the evidence of the defendant on
cross-examination by the district attorney fails to disclose the slightest testimony to support
the statement which is complained of. There was no such testimony given which would
warrant any such conclusion by counsel, court, or jury. The statement was grossly improper
and highly prejudicial in character. Courts have uniformly condemned as improper statements
made by a prosecuting attorney, which are not based upon, or which may not fairly be
inferred from, the evidence. State v. Rodriguez, 31 Nev. 342, 102 P. 863; State v. Irwin, 9
Idaho, 35, 71 P. 609, 60 L. R. A. 716; L. R. A. 1918D, page 8, note.
We might cite a great array of authorities to the effect that it is an abuse of the high
prerogative of a prosecuting attorney in his argument to make statements of facts outside of
the evidence or not fairly inferable therefrom, and that to do so constitutes error. In fact, there
is no dissent from this view. The only matter which troubles the court when such an error is
urged is whether or not it was prejudicial to the defendant.
2. Such misconduct is due to a variety of causessometimes to inexperience of the
district attorney, sometimes to his vaulting ambition, sometimes to the fact that he is
innocently carried away by the exuberance of his own misguided zeal, and sometimes to the
bias or prejudice of special counselbut whatever contributes to such an abuse of a great
power, it is the duty of the court, unsolicited, to reprimand instantly such misconduct, and it
is the part of a fair-minded prosecutor, when reminded of his indiscretion, to do all in his
power to right the wrong done, remembering that he is the representative of the sovereign
people of the state, who seek only the administration of justice.
There is no excuse for such misconduct in any kind of a case. If the state has a strong case
it is not necessary, and if it has a close case such misconduct is gross injustice to the
defendant. Furthermore, prosecutors should remember that such misconduct often leads to
the expense of burdensome retrials, which can but be a serious reflection upon their
regard for the welfare of the taxpayer.
50 Nev. 256, 260 (1927) State v. Cyty
should remember that such misconduct often leads to the expense of burdensome retrials,
which can but be a serious reflection upon their regard for the welfare of the taxpayer.
3. During the cross-examination of the defendant the district attorney asked the following
question: Did you ever use a gun on a man before? Counsel for the defendant objected to
the question and requested the court to admonish the district attorney not to ask defendant
such questions. The court did sustain the objection, but ignored the request to admonish the
district attorney. The question is manifestly improper and unfair. Suppose the defendant had
used a gun upon some man when he was fairly justified in so doing, should he have been
compelled to answer the question and then present his defense? We might present many
illustrations to show the gross impropriety of such a line of inquiry and the many difficulties
which might arise therefrom. Counsel should have been admonished, to say the least.
In People v. Wells, 100 Cal. 459, 34 P. 1078, an almost identical situation was presented.
The district attorney asked the defendant if he had not admitted in a letter the commission of
a crime at a previous time. The court went into the question at length, quoting from many
decisions to show the viciousness of the action of the district attorney. It said:
It would be an impeachment of the legal learning of the counsel for the people to intimate
that he did not know the question to be improper and wholly unjustifiable. Its only purpose,
therefore, was to get before the jury a statement, in the guise of a question, that would
prejudice them against appellant. If counsel had no reason to believe the truth of the matter
insinuated by the question, then the artifice was most flagrant; but if he had any reason to
believe in its truth, still he knew that it was a matter which the jury had no right to consider.
The prosecuting attorney may well be assumed to be a man of fair standing before the jury,
and they may well have thought that he would not have asked the question unless he could
have proved what it intimated if he had been allowed to do so.
50 Nev. 256, 261 (1927) State v. Cyty
asked the question unless he could have proved what it intimated if he had been allowed to do
so. He said plainly to the jury what Hamlet did not want his friends to say: As, well we
know; or, we could, an if we would; or, if we list to speak; or, there be, an if there
might.' This was an entirely unfair way to try the case; and the mischief was not averted
because the court properly sustained the objectionthough we think it should have warned
counsel against the course which he was takingand instructed the jury specially on the
subject. The wrong and the harm was in the asking of the question. Of course, in trials of
criminal cases questions as to the admissibility of evidence will frequently arise about which
lawyers and judges may fairly differ in opinion; and in such cases defendants must be
satisfied when courts sustain their objections. But where the prosecuting attorney asks a
defendant questions which he knows, and every judge and lawyer knows, to be wholly
inadmissible and wrong, and where the questions are asked without the expectation of
answers, and where the clear purpose is to prejudice the jury against the defendant in a vital
matter by the mere asking of the questions, then a judgment against the defendant will be
reversed, although objections to the questions were sustained, unless it appears that the
questions could not have influenced the verdict.
Other cases supporting this view are Leahy v. State, 31 Neb. 566, 48 NW. 390; Holder v.
State, 58 Ark. 473, 25 SW. 279; State v.Trott, 36 Mo. App. 29; People v. Cahoon, 88 Mich.
456, 50 NW. 384. Many other cases might be cited to the same effect.
4. The trial court gave the following instruction:
If a person kill another in self-defense, it must appear that the danger was so urgent and
pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the
killing of the other was absolutely necessary; and it must appear, also, that the person killed
was the assailant, or that the slayer had really and in good faith endeavored to decline any
further struggle before the mortal blow was given.
50 Nev. 256, 262 (1927) State v. Cyty
It is contended that the court committed error in giving this instruction. Since the judgment
and order appealed from must be reversed for the reasons given, it is not necessary that we
consider the correctness of this instruction, but in view of another trial we believe it advisable
that we do so.
5. The attorney for the defendant objected to this instruction in the trial court upon the
ground that it is applicable only in a case wherein the crime of murder is charged, and not in a
case wherein an assault with intent to kill is charged. It is error to give an instruction which is
not applicable to the crime alleged in the information. 16 C. J. 1041.
However, we do not say that the giving of this instruction constituted reversible error. It is
not necessary to determine that question, in view of the situation. We think the court could
have given an instruction relative to the plea of self-defense which would have been
applicable to the case charged and proven, and which would have been free from error. Upon
a retrial of the case that will be done, no doubt.
6. Counsel also complains of the giving of instruction I, which reads,
It shall be unlawful for any person in this state, except peace officers, or persons while
employed upon or traveling upon trains, stages, or other public conveyances, to wear, carry or
have concealed upon his person, in any town, city or village, any dirk-knife, pistol, sword in
case, slung-shot, sandclub, metal knuckles, or other dangerous weapon, without first
obtaining permission from the board of county commissioners, attested by its clerk, of the
county in which such concealed weapon shall be carried.
The defendant was not on trial upon a charge of carrying a concealed weapon, and the
instruction should not have been given.
It is ordered that the judgment and order appealed from be reversed, and that a new trial be
granted.
Sanders, C. J.: I concur.
50 Nev. 256, 263 (1927) State v. Cyty
Ducker, J., dissenting:
Certainly it would be misconduct on the part of a district attorney to willfully misstate
evidence to the jury, and particularly so to tell the jury that a defendant had made statements
to him unless such statements were actually in evidence in the case. But I do not understand
this to be the case here. As he told me to-day in talking to me, he gloried in the fact that he
would use a gun, was not a very happy way of telling the jury that the appellant testified to
that on cross-examination, or to anything else from which such an inference could be
legitimately drawn in argument. But the trial court understood the district attorney to be
stating his conclusion from the testimony given by the appellant. When counsel for the
appellant objected to the district attorney's remarks the court said: That is his conclusion
from what the testimony was. The jury are to determine what the facts are. As the trial court
understood the district attorney in that way and expressed his belief before the jury, telling
them that they were judges of the facts, it is not likely that the jury thought that the district
attorney meant that the appellant had made those statements to him off the stand.
A reading of the appellant's testimony, however, reveals that he did not say he gloried in
the fact that he would use a gun, nor does it reveal anything which can be said to fairly bear
that inference. What his demeanor on the stand may have indicated in this respect, as the
district attorney contends, I, of course, cannot say, but the point is as to what he said or what
might be fairly deduced from what he said. I am not prepared to say, however, that the district
attorney did not honestly err in his argument. I do not believe that any prejudice could have
been caused in the minds of the jury by it. The jury heard the appellant's testimony on
cross-examination, and the court promptly told them that the district attorney's remarks were
his own conclusions and that they were to determine the facts. Moreover, the court instructed
the jury in writing that it was their duty to determine what the facts in the case were from
the evidence, and not from the statements of the judge, nor from the statements of any
attorney during the progress of the trial, or in his argument.
50 Nev. 256, 264 (1927) State v. Cyty
their duty to determine what the facts in the case were from the evidence, and not from the
statements of the judge, nor from the statements of any attorney during the progress of the
trial, or in his argument. Under these circumstances, the probability of any prejudice having
been caused in the minds of the jury against the appellant by the remarks of the district
attorney is very remote.
During the cross-examination of the appellant the district attorney asked him the following
question: Did you ever use a gun before?
Counsel for appellant objected to the question and requested the court to admonish the
district attorney not to ask the appellant such questions. The objection was sustained. It is
insisted that the question was highly prejudicial to the appellant, and asked for the purpose of
influencing the jury against him. The district attorney contends, in view of the crime charged
in which an intent to kill is an essential element, and the testimony of the appellant as to the
several guns he had on the premises, and how they were disposed about the premises, and his
testimony to the effect that he did not intend to kill the complaining witness, the question was
a proper one as calculated to elicit testimony bearing upon his intent, and should have been
answered. Be that as it may, the question was apparently asked in good faith by the district
attorney. The question was not asked in an assertive form. It did not assume that the appellant
had used a gun on a man before, and when the objection was sustained, the district attorney
desisted from asking any questions of a similar character. Furthermore, the court in its written
instructions told the jury to disregard all evidence offered that had been excluded, all
evidence that had been stricken out, and all questions to which objections had been sustained.
It is therefore difficult to perceive how the jury could have been influenced in any way by it.
Appellant objects to the following instruction given by the court:
If a person kill another in self-defense, it must appear that the danger was so urgent
and pressing that, in order to save his own life, or prevent his receiving great bodily harm,
the killing of the other was absolutely necessary; and it must appear, also, that the
person killed was the assailant or that the slayer had really and in good faith endeavored
to decline any further struggle before the mortal blow was given."
50 Nev. 256, 265 (1927) State v. Cyty
appear that the danger was so urgent and pressing that, in order to save his own life, or
prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and
it must appear, also, that the person killed was the assailant or that the slayer had really and in
good faith endeavored to decline any further struggle before the mortal blow was given.
The instruction is in the exact language of section 6402 of the Revised Laws relating to
self-defense in homicide cases. As the appellant testified that he fired the shot which
wounded the complaining witness in self-defense, the instruction was properly given.
Certainly a court may give to a jury an instruction in the precise language of a statute
applicable to the case on trial. If counsel for appellant thought as he now contends, that the
statute is misleading and the instruction consequently so in not informing the jury that the
appearance of danger to the defendant as a reasonable man must have been urgent and
pressing, he should have drawn and requested an instruction remedying the defect claimed.
State v. Switzer, 38 Nev. 110, 145 P. 925. He did not adopt this course. On the contrary, it
appears from the record that he objected to the giving of an instruction embodying the very
matters in which he claims the instruction was deficient, and as a consequence of such
objection the proposed instruction was withdrawn. However, on application of appellant's
counsel the court gave several other instructions on the law of self-defense, and, considering
all of these instructions together the jury was fairly instructed as to the law on this phase of
the case.
It is said in the prevailing opinion that the attorney for the appellant objected to this
instruction in the trial court upon the ground that it is applicable only in a case wherein the
crime of murder is charged, and not in a case wherein an assault with intent to kill is charged.
It is true he made such objection, but he does not urge it here. No mention of this ground is
made in his brief. This change of ground is doubtless due to the fact that the court at the
request of counsel for appellant gave several other instructions on the law of self-defense
in homicide cases.
50 Nev. 256, 266 (1927) State v. Cyty
several other instructions on the law of self-defense in homicide cases. The giving of such
instructions was proper, for, as stated by the trial court when settling instructions, the law of
self-defense in a case of an assault with intent to kill is the same as in a homicide case.
It is insisted by counsel for appellant that the court committed prejudicial error in giving
the following instruction:
It shall be unlawful for any person in this state, except police officers or persons while
employed upon or traveling upon trains, stages or other public conveyances, to wear, carry, or
have concealed upon his person, in any town, city or village, any dirk-knife, pistol, sword in
case, slung-shot, and sand-club, metal knuckles, or other dangerous weapon, without first
obtaining permission from the board of county commissioners, attested by its clerk, of the
county in which such concealed weapon shall be carried.
The instruction is in the exact language of section 6568 defining the unlawful carrying of
concealed weapons. It is insisted that the instruction was erroneously given for the reason
that, as appellant was not charged with the offense of unlawfully carrying concealed weapons,
or with any crime within which such an offense was necessarily included, it was not
applicable to the issues raised by the information and appellant's plea of not guilty. It is also
contended that the instruction is erroneous in that it assumes that the appellant was guilty of
unlawfully carrying a concealed weapon. There is no such assumption. The instruction merely
defines the offense. It is true that appellant was not charged with such an offense, and it must
be conceded that such an offense is not necessarily included in the crime of assault with intent
to kill, but it does not necessarily follow that the instruction was not applicable to evidence
bearing upon appellant's guilt of the crime charged. If there was evidence in the case tending
to prove that appellant was unlawfully carrying a concealed weapon at the time of the
commission of the offense for which he was tried, and such unlawful carrying had any
tendency to prove his guilt of the offense charged, the instruction would have been
applicable and properly given.
50 Nev. 256, 267 (1927) State v. Cyty
offense for which he was tried, and such unlawful carrying had any tendency to prove his
guilt of the offense charged, the instruction would have been applicable and properly given.
The mere fact that evidence proves or tends to prove a defendant guilty of another offense is
not for that reason alone objectionable. The test is, has it any bearing upon the guilt of the
defendant as to the crime charged? State v. Roberts, 28 Nev. 350, 375, 82 P. 100.
The shooting was done with a pistol. The appellant left the hotel shortly before the
shooting, went to his house a short distance away, obtained a gun, and returned to the hotel.
There is testimony given by the appellant from which the jury could have concluded that the
pistol was concealed on his person just prior to the shooting. How, however, it became proper
for the jury to know, as a circumstance tending to show guilt of the crime charged that such
concealment was unlawful, is not discernible.
The intent to kill under the evidence would be no more inferable from the concealment of
the weapon than if appellant had returned to the hotel with the weapon in his hand. If
anything, the latter would have more probative force as tending to show preparedness for an
immediate assault, while the former would be more consonant with a desire to be prepared to
resist an assault. The mere fact that appellant was carrying a concealed weapon, if it was a
fact, and was not authorized by law to do so, under the circumstances, adds nothing of
evidential value to his possession of the same, and the instruction was therefore inapplicable.
But I do not think, in view of all the evidence and the verdict of the jury finding the appellant
guilty of a lesser offense than the one charged in the information, that the giving of the
instruction was prejudicial error.
No judgment shall be set aside, or a new trial granted, in any case on the ground of
misdirection of the jury, unless in the opinion of the court to which application is made, after
an examination of the entire case, it shall appear that the error complained of has resulted in a
miscarriage of justice, or has actually prejudiced the defendant in respect to a substantial
right.
50 Nev. 256, 268 (1927) State v. Cyty
miscarriage of justice, or has actually prejudiced the defendant in respect to a substantial
right. Section 7469, Rev. Laws; State v. Willberg, 45 Nev. 183, 200 P. 475.
I have examined the evidence in its entirety and am satisfied that it is ample to sustain the
verdict of the jury. The only evidence tending in any way to show that the weapon was
concealed was furnished by the appellant, and that is slight, even if the jury had believed the
statement. He said:
I get little gun right away. Gun fall on floor. When he going on top of me and going beat
me over head I reach and get gun. I got overalls. I no got pants, so gun fall. So when he beat
me over head I take gun and put it about his leg.
It does not necessarily follow from his testimony, even if believed, that the gun was
concealed. The state's witness, Hill, who saw appellant on his return to the hotel and at the
door immediately before the encounter, testified that he had the gun in his hand. As it is
apparent from the verdict that the jury disbelieved appellant's version of the affair in reference
to his claim of self-defense, it is highly probable that neither his testimony about how he had
the gun on his person, or the instruction concerning it, affected their verdict.
____________
50 Nev. 269, 269 (1927) Giannopulos v. Chachas
GIANNOPULOS v. CHACHAS
No. 2751
July 5, 1927. 257 P. 618.
ON MOTION TO SUSPEND APPEAL
1. EvidenceJudicial Notice.
It is a general rule that courts cannot in one case take judicial notice of their records in another and
different case.
2. EvidenceJudicial Notice.
The supreme court would not, on appellant's motion to stay his appeal, take judicial notice of an
interlocutory judgment in a connected case pending and undetermined in the lower court.
3. Appeal and ErrorMotion to Suspend.
The supreme court would overrule appellant's motion to suspend and stay his appeal in the absence of
competent evidence to support it.
Appeal and Error4 C. J. sec. 2475, p. 621, n. 87 (new).
Evidence23 C. J. sec. 1920, p. 113, n. 40.
Action by Jim Giannopulos against Angelo Chachas. On defendant's motion to suspend
and stay his appeal from an order denying a new trial. Motion denied.
Chandler & Quayle, for Appellant.
V. H. Vargas, for Respondent.
OPINION
This case is before us upon the appellant's motion for an order to suspend and stay his
appeal taken from an order denying his motion for a new trial in this cause.
Appellant stated in his notice of motion that upon the hearing thereof he would rely upon
the record on appeal and also upon a certified transcript of certain portions of the record in
the case of Jim Giannopulos v. Angelo Chachas, Gust Chachas, and Gust Kippos. The
particular portions of the record so certified consist of the pleadings and an interlocutory
judgment entered in that case after the appeal herein had been taken, referring the case
to a referee for an accounting of the dealings and transactions between the parties
{plaintiff and defendants) as copartners.
pleadings and an interlocutory judgment entered in that case after the appeal herein had been
taken, referring the case to a referee for an accounting of the dealings and transactions
between the parties (plaintiff and defendants) as copartners.
To follow the arguments of counsel for and against the allowance of the motion would
involve the consideration of the merits of the appeal, and to avoid this we shall confine
ourselves to what is considered by us to be the real question presented for determination,
which is, can this court consider in support of the motion an interlocutory judgment in
another and different case pending and undetermined in the court below?
1. It is a general rule that courts cannot in one case take judicial notice of their records in
another and different case, even though the cases are connected. 16 Cyc. 918; 23 Corpus
Juris, 113. But it is held that the general rule is not so inflexible in its application that under
no circumstances can judicial notice be invoked by a showing outside the record. Sewell v.
Johnson, 165 Cal. 762, 134 P. 704, Ann. Cas. 1915B. 645.
2. The argument of counsel for appellant fails to satisfy us that we can, on this motion, so
relax the rule as to consider an interlocutory judgment in a case pending and undetermined in
the lower court, even though the cases are connected. To do so would not only violate, but
would abrogate the rule.
3. We are of opinion that the motion is not supported by any competent evidence, and we
shall for that reason deny the motion.
Motion denied.
Coleman, J., concurring:
I concur in the order. That another action is pending between the same parties for the same
cause is a ground of demurrer. Where the point cannot be raised by demurrer, it may be raised
by answer. Certainly no one can be mulcted twice for the same matter. Since the defendant
has a method whereby he may fully protect himself in the second cause of action, and no
good reason appearing therefor, the stay should not be granted.
appearing therefor, the stay should not be granted. The lower court is in a much better
position to determine the question than are we.
____________
50 Nev. 271, 271 (1927) State v. Williams
STATE v. WILLIAMS
No. 2753
July 5, 1927. 257 P. 619.
1. JuryConscientious Opinions.
Veniremen, who stated they entertained such conscientious opinions as would preclude them from
finding defendant guilty in a capital case, held incompetent to serve as jurors in trial thereof, in view of
Stats. 1919, c. 232, sec. 51, notwithstanding statement that, if compelled to serve as jurors, they would
obey the instructions of the court and decide the case in accordance with the law and the evidence.
2. Criminal LawWitnessesPhotographs.
In murder prosecution, where it was state's theory that defendant killed deceased and dragged his
body to a safe to have it appear that he shot him while attempting to rob, and where the scene of homicide
was reconstructed and photographs taken thereof, permitting state witness to testify from photographs
illustrating state's hypothetical theories and admitting photographs in evidence held not error.
3. Criminal LawEvidencePhotographs.
In murder prosecution, court did not err in sustaining objection to defendant's offer in evidence of a
bust photograph of deceased, from which jury might have formed opinions as to credibility of defendant's
testimony that deceased was a drug addict and ex-convict.
4. Criminal LawEvidence.
In murder prosecution, where it was state's theory that defendant killed deceased and dragged his
body to a safe to make it appear deceased was attempting to rob, denial of defendant's motion to strike
answer of witness as to doubt in his mind as to whether mark on the floor was streaks of blood or made
by dragging of heels held not error.
5. HomicideEvidence of Character.
In murder prosecution, where defendant in giving account of killing stated he believed deceased
intended to execute threats to kill him, and, knowing he was a drug addict, he was more afraid of him
than he might have been otherwise, testimony of defense witness that deceased's habits were those of a
drug addict were incompetent until defendant first established that deceased was a violent and dangerous
person.
6. HomicideEvidence of Character.
In murder prosecution, limiting examination of defense witness that habitual use of drugs made the
user a violent and dangerous person was not error, where defendant did not first establish that deceased
was a violent and dangerous person.
7. Criminal LawEvidence of Character.
Fact that a person's habits or character are such that he would be apt to do an act is not competent
evidence that he did the act.
8. Criminal LawEvidenceCollateral Matters.
In murder prosecution, error, if any, in permitting cross-examination of defendant as to collateral
matter involving defendant's trade of watches with deceased to show motive held not prejudicial, where
state failed to show motive and was bound by defendant's answers.
9. Criminal LawPermitting Jury to Take Photographs.
In murder prosecution, court did not err, in view of Rev. Laws, 7206, in permitting jury to take to
their room photographs properly admitted in evidence.
10. HomicideEvidence Held to Sustain Conviction.
In prosecution for murder in the first degree by shooting with a pistol, evidence held sufficient to
sustain conviction.
Criminal Law16 C. J. sec. 1129, p. 586, n. 83 (new) ; sec. 1528, p. 744, n. 11; p. 745, n. 19 (new) ; sec.
1537, p. 750, n. 84; sec. 2543, p. 1083, n. 43; sec. 3657, p. 312, n. 44.
Homicide30 C. J. sec. 396, p. 174, n. 3, 15; sec. 559, p. 312, n. 42.
Juries35 C. J. sec. 392, p. 354, n. 34; p. 356, n. 49.
Witnesses40 Cyc. p. 2416, n. 42.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
W. F. Williams was convicted of murder in the first degree, and he appeals. Affirmed.
Roberts, Scanlan & Ingram, for Appellant:
Conscientious scruples against death penalty do not disqualify if juror can render proper
verdict notwithstanding them. 35 C. J. 355.
Improper allowance of challenge by prosecution may cause reversal. People v. Stewart. 7
Cal. 140.
Photographs of things in assumed positions to illustrate hypothetical situation or explain
certain theory are incompetent. Colonial Refining Co. v. Lathrop, L. R. A. 1917f, 890.
Photograph shown to be faithful representation of what it purports to show is admissible.
what it purports to show is admissible. Photograph of deceased, showing his size, aggressive
and dangerous appearance, is most material in support of defendant's testimony that he acted
in self-defense. Defendant's justification is his belief in impending injury. Violent and
dangerous character of defendant may be shown when justification of homicide is questioned.
30 C. J. 174; 1 Wigmore (2d ed.), sec. 245. Defendant has right to act on appearances and
determine his danger. Idem, sec. 248.
Court erred in restricting evidence of doctor that drug addicts are generally violent,
dangerous and irresponsible for purpose of showing defendant had reason to be apprehensive.
Idem.
M. A. Diskin, Attorney-General; Wm. Forman, Jr., Deputy Attorney-General; L. D.
Summerfield, District Attorney, and H. L. Heward, Deputy District Attorney, for Respondent:
Juror is incompetent in capital case who states he has conscientious scruples against
inflicting death penalty, even though he further states if satisfied of defendant's guilt he would
render verdict accordingly. It is not error for court to excuse him without further examination.
35 C. J. 355, 396; People v. Goldenson, 19 P. 161.
It is not error to admit photograph of scene with things arranged by eyewitness. That is not
hypothetical situation. In People v. Maughs, 149 Cal. 265, markers were placed to better
illustrate testimony. In State v. Clarke, 48 Nev. 134, jury inspected scene with automobile
parked in position as testified to by witness.
It was not error to exclude photograph of defendant, admittedly bust picture, when there
was no foundation laid, no witness testified it was true likeness, or when it was taken, and
which did not disclose anything of size, weight, strength, etc.
No proper foundation was laid for introduction of character evidence. That complaints
were made to witness that deceased was drug addict does not qualify her. Inquiry should be
limited to whether deceased was violent and dangerous, and not extend to general
character or disassociated characteristics.
was violent and dangerous, and not extend to general character or disassociated
characteristics. 30 C. J. 229; State v. Boyle, 49 Nev. 386.
Assignment of error states doctor was called to testify drug addicts are generally
considered, etc. It is hard to tell whether he was character or expert witness. There is no need
to call expert to testify to what is generally considered. Evidence was properly rejected.
Jackson v. State, 59 So. 171.
Character evidence to show deceased was aggressor is restricted to general reputation.
Witness may not state his opinion. Evidence is limited to violence, belligerency and
uncontrolled passion. 13 R. C. L. sec. 222.
Prosecution is given utmost leeway in cross-examination of motives when defendant has
told complete story admitting killing and giving reasons.
OPINION
The defendant, W. F. Williams, was convicted of murder of the first degree for shooting
one H. D. Kelly to death with an automatic Colt revolver, and was sentenced to confinement
in the penitentiary for the term of his natural life. The defendant appeals from an order
denying his motion for a new trial and from the judgment.
So far as necessary to a proper understanding of the numerous assignments of error relied
upon for the reversal of the case, the following summary of the evidence will be sufficient.
At the time of the killing both the defendant and the deceased were employed as barbers,
the defendant in the barber shop of F. H. Hartung, on North Virginia Street, and the deceased
in the Vanity Shop, on First Street, in the city of Reno. The homicide occurred between the
hours of 1 and 2 o'clock on the morning of the 19th day of April, 1926, in Hartung's barber
shop. There were no eyewitnesses, and nothing was known of the killing until the defendant
telephoned to his employer at his residence, stating, "You had better come down, they are
robbing the safe."
at his residence, stating, You had better come down, they are robbing the safe. The
defendant also telephoned J. M. Kirkley, chief of police, at his residence, whereupon Kirkley
telephoned Police Officer Wilkinson to go to Hartung's barber shop. When Hartung arrived,
he recognized the dead body lying on the floor as being that of Kelly. Eight shots had been
fired from the defendant's revolver, two of which went wild and six of which struck the
deceased, causing fourteen wounds. The defendant admitted the killing, but made no
statement as to the cause until he had been taken to the police station, where he was
questioned by Chief of Police Kirkley as to how it occurred. The defendant stated to Kirkley
that he had occasion to go to the barber shop, and when he went inside he heard water
running, and just as he turned on the light he saw a man standing at the safe; that he pulled his
gun and asked him what he was doing. The man made no reply, and he asked him the second
time and getting no answer he shot.
At about the hour of 10:30 on the morning of the homicide the defendant was taken from
his cell and confronted with the chief of police, the sheriff, and the district attorney, and was
asked by the sheriff for a statement as to how the killing occurred. The defendant stated, in
substance, that he and the deceased had met at about 8 or 9 o'clock in the evening in Douglas
Alley; that they went down the alley and bought a bottle, had a drink apiece, and Kelly
discovered that he had lost his barber case; that a third party informed him where the case
was; and that either he or the deceased gave the party four bits to go and get the barber case.
After that Kelly said that he wanted to get shaved and asked him, Do you think you are too
drunk to shave me? and he replied, No; I am not. Come on, we will go down in the barber
shop, and I will shave you. He stated that he shaved him, and while cleaning up he noticed
Kelly taking a pair of clippers off the stand and putting them in his barber case. He asked him
what he was doing, and Kelly replied that he was going to take the clippers. He told him he
could not do that and Kelly said, "Why can't I?
Kelly said, Why can't I? What the hell is it to you whether I do it nor not? Kelly then
walked over to the safe and said that he was going to open the safe, and he told him that he
could not do that, that he was in charge of the barber shop and was responsible, and that he
could not open the safe. Kelly then stepped over in the direction of the safe and he ordered
him to stop. He ordered him again to stop, and when he ordered him the third time he shot
him three or four times, and then telephoned to Hartung and to the chief.
After the homicide occurred the furnishings in the barber shop were rearranged and the
safe removed. Afterward, at the request of the district attorney, F. H. Hartung reconstructed
the scene in the shop by placing objects therein to represent the pool of blood, the body of the
deceased, the barber case, and the safe as they appeared at the time of the homicide. Three
photographs were taken of the reconstructed scene, and upon the trial Hartung and other
witnesses for the state were permitted to testify from them.
Upon the trial the defendant gave substantially this account of the killing:
That he had known the deceased about six months, but not intimately; that they were
together from 8 or 9 o'clock until the killing occurred; that during the evening the deceased
asked him if he was too drunk to shave him, as he wanted to be shaved, but was drunk and
would be too nervous to shave himself before going to work at 8 o'clock the next morning;
that when they entered the shop Kelly fastened the door and spent a few moments in looking
around the shop, all the time talking in a friendly way. Kelly took a bottle from his barber
case, an they each had a drink; that he went to his workstand and unlocked the drawer that
held his tools and a gun and shave the deceased, who appeared to be restless and nervous.
When he had finished shaving him, Kelly conversed about matters concerning the business of
the shop and stated that he was in need of tools and walked across the room to Mr. Hartung's
barber chair and took a pair of clippers off the stand and said he was an expert safe cracker,
then he took the clippers in his left hand and bent over the safe and turned the tumblers;
he was an expert safe cracker, then he took the clippers in his left hand and bent over the safe
and turned the tumblers; that he told him to stop and not to do anything like that, that he was
responsible for everything in the shop and to put the clippers back and get away and
remonstrated with the deceased and protested against the opening of the safe; that Kelly used
very offensive, insulting, and threatening words and said, I will silence you, and then I can
do as I please. During the affray, the deceased grappled with him for the gun. He said, I was
scared, for I thought he meant business, as I knew that he was an addict and an ex-convict,
and all that, that scared me all the more. He said he fired one shot to attract attention, and
fired the second shot as they ran around the room; that Kelly grabbed the headrest off
Hartung's barber chair and said, I will cave your damn head in; that he then pointed the gun
toward Kelly and told him to stop, then becoming desperate he shot, he did not know how
many times, and did not realize what had happened until he saw the body of the deceased
lying head forward near Hartung's chair, about 6 or 7 feet from the safe; that he did not touch
the body of the deceased, but called Mr. Hartung and the chief of police.
Upon the conclusion of the evidence, the jury were fully instructed upon the law of
murder, the degrees of murder, self-defense, and justifiable homicide.
We shall review the assignments of error in the order of the argument:
1. First, that the court erred in limiting and restricting the examination of William V. Lane
and Joe El Cano and other veniremen on voir dire, with respect to determining whether or not
the veniremen had such conscientious opinions as would preclude them from inflicting the
death penalty.
The record does not support this assignment. From a review of the examination of the
veniremen we conclude that to qualify as jurors in this case they would have had to violate
either their consciences or their oaths. The statute provides that: "If the offense charged is
punishable with death, the entertaining of such conscientious opinions as would preclude
his finding the defendant guilty; in which case he must neither be permitted nor
compelled to serve as a juror."
If the offense charged is punishable with death, the entertaining of such conscientious
opinions as would preclude his finding the defendant guilty; in which case he must neither be
permitted nor compelled to serve as a juror. Statutes 1919, p. 426.
It is argued that, though the veniremen stated they entertained such conscientious opinions
as would preclude them from finding the defendant guilty, if compelled to serve as jurors,
they would obey the instructions of the court and decide the case in accordance with the law
and the evidence. From this it is contended that the veniremen were competent to serve as
jurors. By the weight of authority a juror is incompetent in a capital case who states that he
has conscientious scruples against finding defendant guilty of an offense punishable by death,
although he further states that, if satisfied beyond a reasonable doubt of defendant's guilt, he
would render a verdict accordingly. 35 C. J. 355. The authorities cited in the note in support
of the text are in accord with the letter and spirit of our statute, and we find no error in the
sustaining of the challenges interposed by the state.
2. Second, that the court erred in permitting the witness F. H. Hartung, called by the state,
to testify from three photographs which illustrated hypothetical theories of the state, and in
admitting the photographs in evidence.
It was the contention of the state that a streak of blood leading from a pool of blood on the
floor, 12 feet from where the body was found, was a circumstance showing that the body of
the deceased had been dragged from the pool of blood, where it had fallen, by the defendant
to the safe in order to make it appear that he shot the deceased while deceased was attempting
to rob the safe.
Counsel for the defendant contend that the photographs were evidence manufactured by
the state to destroy the defendant's defense that he shot the deceased in an attempt to rob the
safe.
It is true, the photographs were in a sense manufactured evidence, but not in an offensive
sense, as argued by counsel.
by counsel. The photographs taken under the circumstances, under which the evidence shows
them to have been taken, could not have been understood by the jury as being exact
representations of the scene of the homicide. The photographs were intended (as maps or
diagrams might be used) merely for the purpose of illustrating the conditions present at the
time of the killing. We see no valid ground for objection to the use by the witnesses of the
photographs, to give to the jury more accurate information of the facts, as the witnesses
testified them to be, than they could give by the spoken word. State v. Matthews, 191 N. C.
378, 131 SE. 743. And, so considered, we are of opinion that no error was committed by their
introduction in evidence. People v. Singh (Cal. App.), 248 P. 981, and cases cited.
3. Third, that the court erred in sustaining the state's objection to defendant's offering in
evidence a bust photograph of the deceased, from which the jury might have formed opinions
as to the credibility of defendant's testimony relative to the character of the deceased. It is
held that, in a prosecution for murder, a photograph of deceased, offered in evidence to show
deceased's appearance in his lifetime and to allow the jury to see his character from his
picture, was properly excluded. People v. Bannon, 59 Cal. App. 50, 209 P. 1029. The
photograph was properly rejected.
4. Fourth, that the court erred in denying defendant's motion to strike out the answer of the
witness Frederick Morris, A doubt in my mind whether this was streaks of blood or made by
dragging of the heels. We find no error in the court's ruling.
5. Fifth, that the court erred in limiting and restricting the examination of Lillian T. Shaw,
a witness called by the defendant.
6. Sixth, that the court erred in limiting and restricting the examination of Dr. A. F.
Adams, a witness called by the defendant, as an expert.
7. These assignments may be considered together. The defendant, in giving his account of
the killing, stated, in substance, that he believed the deceased intended to execute his threats
to kill him, and knowing the deceased to be a drug addict he was more afraid of him than
he otherwise might have been.
the deceased to be a drug addict he was more afraid of him than he otherwise might have
been. The defendant sought to establish by the witness Shaw that the deceased's character and
habits were those of a drug addict, and to establish by the witness Adams that the habitual use
of drugs makes the user a violent and dangerous person. The defendant's argument in support
of his exception to the exclusion of the proffered testimony is that from such evidence the
jury could infer that the deceased was the aggressor and the defendant's fear of the deceased
was well grounded, and that the evidence would tend to corroborate his testimony that he
believed the defendant intended to kill him. The fact that a person's habits or character are
such that he would be apt to do an act is not competent evidence that he did the act. Doing an
act cannot be proved by evidence that from the habits of a person he would be apt to do it.
Commonwealth v. Rivet, 205 Mass. 464, 91 NE. 877. So, in this case, the fact that the
deceased was a drug addict and that drug addicts are generally dangerous persons would not
be competent evidence from which the jury could infer that the deceased was the aggressor or
that the defendant's fear of the deceased was well grounded. We conclude that the trial court
correctly ruled that such evidence would not be competent until the defendant had first
established that the deceased was a violent and dangerous person.
8. Seventh, that the court erred in permitting the state, upon the cross-examination of the
defendant, to inquire into a collateral matter involving a trade of watches between the
defendant and the deceased made a few days prior to the killing to show motive. The record
discloses that, upon the defendant's objections, the district attorney stated that the questions
were merely preliminary to show motive. It is stated generally in Wharton's Criminal
Evidence, vol. 1, p. 906, that ordinarily a witness cannot be examined as to another person's
motives, but as to the accused's own motives, when relevant, he may be examined in chief or
upon cross-examination.
We are satisfied that the state in its examination of the defendant utterly failed to show
motive arising from the watch transaction, and the state being bound by the answers of the
defendant, with respect to this collateral matter, no prejudice resulted to the defendant.
9. Eighth, that the court erred in permitting the jury to take to their room the photographs
admitted in evidence. The photographs having been properly admitted, we find no prejudicial
error in permitting them to be taken to the jury room as a part of the papers in the case.
Section 7206, Rev. Laws; People v. Balestieri, 23 Cal. App. 708, 139 P. 821.
The ninth, tenth, eleventh, twelfth, and thirteenth assignments of error are directed to the
defendant's exceptions to certain instructions given at the request of the state. We have
examined the instructions and find that they are substantially the same as instructions
heretofore approved by this court in homicide cases, and that they contain principles of law so
often considered that we shall decline to review them for the purpose of answering argument.
Fourteenth, this assignment was abandoned in argument.
The fifteenth, sixteenth, and seventeenth assignments are directed to the defendant's
exceptions to the refusal of the court to give certain instructions requested by the defendant.
We are of opinion that the record supports the reasons indorsed by the trial court upon each
instruction for its refusal.
Eighteenth, it is contended generally that the verdict in this case is contrary to the evidence
and that the evidence does not support the judgment.
10. The killing was a most atrocious act, and we cannot say from the evidence that the
jury were not justified in finding the defendant guilty of murder of the first degree.
Finding no reversible error in the record, the judgment is affirmed.
____________
50 Nev. 282, 282 (1927) Ex Rel. Hatch v. Court
EX REL. HATCH v. COURT
No. 2748
July 5, 1927. 257 P. 831.
in prohibition
1. PartnershipReceivership, Law Of.
Law of receivership applicable to corporations will not control proceeding wherein it is sought to
procure the appointment of receiver for a partnership.
2. PartnershipReceivership, Summons, Nonresident.
In suit for dissolution of partnership, accounting, and for the appointment of a receiver, service of
summons held not a prerequisite to the appointment of a receiver, where the defendant partner was a
nonresident, and property of defendant was within jurisdiction of the court.
3. PartnershipReceivership, Summons, Nonresident.
In suit for the dissolution of a partnership, for accounting, and for a receiver, court could order
service of summons by publication, where defendant partner was a nonresident, and his property was
within court's jurisdiction.
4. PartnershipReceivership, Property.
Money held not in custodia legis, where it had been seized by the sheriff under an attachment, and the
action had been thereafter dismissed, and hence court properly ordered sheriff to deliver over money to
receiver appointed for nonresident defendant.
5. PartnershipReceivershipOrder Equivalent to Seizure.
In suit for dissolution of a partnership, accounting, and a receiver for nonresident defendant, an order
appointing a receiver and directing the sheriff to deliver money in his hands to the receiver, who
immediately qualified on his appointment, held equivalent to an actual seizure of the money for the
purpose of securing jurisdiction to publish the summons.
6. PartnershipSummons, Publication.
That the order of publication of the summons was made the day before the money on which
jurisdiction was based actually came into the hands of the receiver appointed for nonresident defendant
held not to render the order void, where the court had previously directed the sheriff to turn the money
over to the receiver.
7. ReceiversReceiver's Title.
The law deems the title and right of possession of a receiver to relate back to the time of his
appointment.
8. PartnershipDissolution, Pleadings.
In suit in equity for the dissolution of a partnership and accounting, an allegation of the insolvency of
the defendant partner is unnecessary for appointment of receiver.
9. ProhibitionDiscretion of Court.
The writ of prohibition issues only in the sound judicial discretion of the court for the furtherance of
justice.
10. ProhibitionPartnership, Dissolution Of.
Issuance of writ of prohibition held not required in suit for the dissolution of a partnership, for an
accounting, and for a receiver, where court had jurisdiction.
Courts15 C. J. sec. 100, p. 801, n. 92.
Judgments34 C. J. sec. 1661, p. 1172, n. 99, 1.
Partnerships30 Cyc. p. 729, n. 20 (new); p. 730, n. 21.
Prohibition32 Cyc. p. 600, n. 5; p. 610, n. 82.
Receivers34 Cyc. p. 202, n. 21.
Original proceeding in prohibition by the state, on the relation of Clyde Hatch, against the
Ninth Judicial District Court and Hon. C. J. McFadden, as Judge thereof. Application
denied, and proceedings dismissed, with leave to proceed after allowing petitioner time
to move or plead as advised.
G. F. Boreman, for Relator:
Order appointing receiver was in excess of jurisdiction, void abinitio and invalid upon its
face because court had acquired no jurisdiction of defendant; he was not before court; no
summons had been served, nor notice of application for receiver. Hettel v. Court, 30 Nev.
382; Golden v. Court, 31 Nev. 250; High, Receivers, secs. 111, 112.
There was no showing of fraud or irreparable injury, or that relator had absconded, or was
insolvent, or that he did not have property within jurisdiction. Mere fact that relator was
nonresident was insufficient. High, sec. 117.
The $834 in question was seized by sheriff as property of relator under attachment and so
held when action terminated in dismissal. Attachment immediately became functus officio
and sheriff was charged with duty to return property. Rev. Laws, 5162.
Where personal property is in possession of third person, not party to receivership, under
claim of title, court should not order its receiver to take possession; separate suit should be
instituted. Enforcement of such order is restrained by prohibition. High, sec. 145; Stuparich v.
Court, 123 Cal. 290.
Court had no jurisdiction to make order for service of summons by publication. To uphold
validity of order, respondents must proceed on theory that second action was quasi in rem to
subject certain res ($834) to process of court, since no personal judgment could be rendered,
there having been no personal service upon Hatch. There is distinction between proceedings
strictly in rem and quasi in rem. Lee v. Silva, 197 Cal. 364; Brownhardt v. Brown, 24 SE.
527; 36 L. R. A. 402. In proceedings strictly in rem mere bringing of suit gives court
dominion. Proceedings quasi in rem arise where from nature of action, or character of
property, or both, court can acquire jurisdiction to order substituted service only by physical
dominion through actual seizure. Proceedings for service of summons by publication on
nonresident before attaching his property are null and void. Breon v. Miller, 65 SE. 214; 24 L.
R. A. (N. S.) 276; Havemeyer v. Court, 84 Cal. 327.
Right of appeal does not foreclose relief by prohibition against unlawful receiverships.
Issuance of writ is discretionary. Havemeyer Case, supra; State v. Court, 111 Am. St. Rep.
962; S. L. R. R. v. Wear, 33 L. R. A. 341.
Relator has no plain, speedy, and adequate remedy at law and need not first make
application to lower court for relief before asking for writ. Chaplin v. Court, 253 P. 954;
Grinbaum v. Court, 192 Cal. 556.
V. H. Vargas, for Respondent:
Prohibition will not issue to restrain inferior tribunal where there is plain, speedy, and
adequate remedy at law. Rev. Laws, 5709; Jacobs v. Court, 65 P. 826.
Court had undoubted jurisdiction of subject matter. Whether it had jurisdiction of relator
was question within its determination. If it erred remedy was by appeal. Mines v. Court, 27 P.
532; Agassiz v. Court, 27 P. 49.
Demurrer should be sustained as application for writ does not show petitioner applied to
inferior court for relief. Walcott v. Walls, 21 Nev. 50; Hammon v. Court, 240 Fed. 924.
OPINION
This is an original proceeding in prohibition. The petition alleges that on August 23, 1924,
an action at law was instituted by Mike Basta, as plaintiff, against Clyde Hatch, as defendant,
in the Ninth judicial district court of Nevada in and for White Pine County, wherein it was
alleged by the said Basta that a partnership had been formed between said parties for the
carrying on of a certain line of business; that an accounting had been had between the said
parties as copartners, whereby it was found that the said Hatch was indebted to the said Basta
in the sum of $2,881.42. Judgment was demanded in said sum. Attachment proceedings were
had in said action, in which the sum of $834, which was on deposit in the name of Hatch in
the First National Bank of Ely, Nevada, was levied upon, and thereafter paid over to the
sheriff, the attaching officer. Hatch, who was at the time of the suit, and ever since has been,
a resident of the State of California, appeared in said action, and pursuant to proceedings had
therein, the court, on the 10th day of June, 1926, entered an order dismissing said action at
law. Simultaneously with the entry of said order of dismissal in said law action Basta
instituted in said court an action in equity against said Hatch wherein it was alleged that in
October, 1922, the said parties entered into a copartnership agreement, pursuant to which
business was carried on for some time, and that the defendant Hatch, in violation of the
partnership agreement, had converted certain of the partnership assets into cash, which, it is
alleged, are the $834 mentioned as having been deposited in bank. There is a prayer for an
accounting, the appointment of a receiver, and the dissolution of the partnership.
Upon the filing of the complaint in the equity suit the court made an order appointing a
receiver with general powers, and ordered that he take charge of all property of the
copartnership, particularly specifying the $834 which came into the hands of the sheriff in
the action at law, and also ordered the sheriff to turn the same over to such receiver.
which came into the hands of the sheriff in the action at law, and also ordered the sheriff to
turn the same over to such receiver. The orders were made on the day the suit was filed, and
without notice to Hatch. The receiver qualified immediately upon being appointed, and
forthwith demanded the money of the sheriff. On the following day, June 11, 1926, the court
made an order directing the service of the summons by publication. Thereafter, and on June
12, the sheriff paid the money over to the receiver who had given the bond and taken the oath
of office.
The matter has been submitted on the general demurrer to the petition and the briefs of
counsel.
The petitioner makes two contentions in support of his right to the writ: First, that the
court had no jurisdiction to make the order appointing a receiver; and, second, that it had no
jurisdiction to make the order for service of summons by publication.
1-3. The first contention is based upon the fact that there had been no service of summons
or notice to the petitioner of the application for the appointment of a receiver, in support of
which our attention is directed to the case of Hettel v. District Court, 30 Nev. 382, 96 P.
1062, 133 Am. St. Rep. 731, and Golden v. District Court, 31 Nev. 250, 101 P. 1021. Those
were cases in which it was sought to appoint a receiver for a corporation pursuant to a special
statute, and hence cannot control in this case. As was pointed out in the very recent case of
Sugarman Iron & Metal Co. et al. v. Morse Bros. M. & S. Co., 50 Nev. 191, 255 P. 1010, the
law of receivership applicable to corporations cannot control in a proceeding wherein it is
sought to procure the appointment of a receiver for a copartnership, as in the instant matter.
We think the case of Maynard v. Railey, 2 Nev. 313, is decisive of the question under
consideration. In the case mentioned the identical point was made as that now relied upon. It
was therein said that the very reason why a court of equity interposes in cases of this character
is to prevent the mischief which might result from the tardy remedy of the courts of law. This
statement fits the instant case.
the instant case. Had the court not appointed the receiver, it is likely that the defendant
therein, who is a nonresident, would have removed the money from the jurisdiction of the
court. The contention is utterly without merit.
The contention that the court had no jurisdiction to make the order for the publication of
the summons is equally devoid of merit.
4. The plaintiff in the receivership matter claims that the money in question is partnership
assets. While the petition nowhere specifically avers that the money in question is the
individual property of Hatch, such is the theory of the petitioner, and, upon the authority of
Stuparich v. Superior Court, 123 Cal. 290, 55 P. 985, it is contended that it was improper for
the court to order the sheriff to deliver over the money to the receiver. We do not think the
case mentioned is in point. The money was not in custodia legis (Ranft v. Young, 21 Nev.
401, 32 P. 490); the sheriff had no claim to it; and he actually delivered it over.
This money is subject matter within the jurisdiction of the court, and in the circumstances,
we think, for the purposes of this matter, we are justified in assuming that it is a portion of the
assets of the partnership.
5. Jurisdiction of the res is obtained by a seizure under process of the court, whereby it is
held to abide such order as the court may make concerning it. * * * So, also, while the general
rule in regard to jurisdiction in rem requires the actual seizure and possession of the res by the
officer of the court, such jurisdiction may be acquired by acts which are of equivalent import,
and which stand for and represent the dominion of the court over the thing, and in effect
subject to it the control of the court. Cooper v. Reynolds, 10 Wall. 308, 19 L. Ed. 931.
In 15 R. C. L. p. 632, it is stated that, while seizure of the property is necessary in order to
confer jurisdiction to enter a judgment in rem, it is immaterial whether the proceedings
against the property be by an attachment or bill in chancery or other equivalent, if it be
substantially a proceeding in rem.
a proceeding in rem. To the same effect is the case of Bruff et al. v. Thompson et al., 31 W.
Va. 16, 6 SE. 352.
We think the order appointing the receiver and directing the sheriff to deliver the money
to such receiver, who immediately qualified upon his appointment, was equivalent to an
actual seizure. It tied up the money, and resulted in its coming into the hands of the receiver,
who is an officer of the court.
6, 7. It is contended that, since the order of publication was made the day before the
money actually came into the hands of the receiver, there was no jurisdiction over the subject
matter, and hence the order is void. We cannot agree with this contention. It is the
well-recognized rule that the title and right of possession in the receiver relates back to the
time of appointment. High on Receivers (4th ed.), sec. 136. In this case the order directing the
sheriff to turn the property over and the demand therefor by the receiver were made before the
order of publication. The money in question was seized, so far as the petitioner is concerned,
prior to the making of the order of publication.
8. It is contended that there is no allegation of insolvency of Hatch, and hence no receiver
should have been appointed. We held in the Sugarman matter, supra, that in a suit in equity
for the dissolution of a partnership and an accounting such an allegation is not necessary.
9, 10. The writ of prohibition issues only in the sound judicial discretion of the court for
the furtherance of justice. In the circumstances of this case we feel that the ends of justice do
not demand the issuance of the writ sought.
It is ordered that the application be denied, and that these proceedings be dismissed, with
leave to the respondent court to proceed, after allowing the petitioner ten days from the
service of a copy hereof within which to move or plead in said court as he may be advised.
____________
50 Nev. 289, 289 (1927) Whiddett v. Mack
WHIDDETT v. MACK
No. 2729
July 19, 1927. 258 P. 233.
1. StatutesStatute Regarding Pleading Possession of Broker's License Held Not
Unconstitutional, as Amending Civil Practice Act Without so Designating in Title.
Stats. 1923, c. 139, sec. 13, providing that no action for broker's compensation can be maintained
without alleging and proving that broker possessed license, held not unconstitutional, as amending civil
practice act, sec. 96, par. 2 (Rev. Laws, 5038), requiring in complaint a statement of facts constituting
cause of action in ordinary and concise language, without so designating in title of act, as provided by
Const. art. 4, sec. 17, since provision of civil practice act is not affected.
2. BrokersPleading, License.
In suit by broker for real estate commission, failure to allege that he possessed license, as required by
Stats. 1923, c. 139, sec. 13, was not waived by failure to interpose special demurrer on that ground, in
view of fact that effect of entire act, as shown by sections 1, 2, and 12, plainly prevents making of
contracts for selling real estate for others by unlicensed individuals.
3. BrokersPleading, License.
In suit for broker's commission for sale of real estate, complaint showing on its face that plaintiff
performed acts of broker or salesman, within meaning of Stats. 1923, c. 139, sec. 2, which did not allege
that plaintiff possessed a license, as required by section 13, did not state facts sufficient to constitute a
cause of action.
Brokers9 C. J. sec. 110, p. 636, n. 43.
Pleading31 Cyc. p. 729, n. 54.
Statutes36 Cyc. p. 1029, n. 29.
Action by Glen H. Whiddett against C. E. Mack and wife. From a judgment for plaintiff,
and from an order denying a new trial, defendants appeal. Reversed, with directions.
Mack & Green, for Appellants:
Complaint to recover broker's commission must allege broker was duly licensed. Stats.
1923, 239, 249; Beebe v. Kistler, 199 P. 537.
(Other points raised in brief not considered in opinion.)
Barry & Barry, for Respondent:
Section 13 of Stats. 1923, 239, is unconstitutional, being in violation of sec. 17 of art. 4 of
constitution concerning titles of acts. The statute attempts to amend civil practice act, sec. 96,
Rev. Laws, 5038, yet in no way refers to it.
Section 13 does not affect plaintiff's cause of action; it affects his capacity to sue or it is
matter in abatement. 30 Cyc. 96, 97.
In Acme Mer. Agency v. Rochford, 66 A. S. R. 714, it is held that where foreign
corporation is prohibited from maintaining action unless it complies with provisions of
statutes, it need not allege such compliance in complaint, thereby holding such statement does
not constitute any part of plaintiff's cause of action. If defendant relies upon it, he must plead
it in his answer.
If act is broader than its title and subjects not covered by title are so intimately connected
with one indicated that portion of act relating to them cannot be rejected and leave complete
act capable of being executed, entire act must be held invalid. If act contains more than one
subject and only one subject is expressed in title whole act is nullity. 25 R. C. L. 840, 866;
Drury v. Hallock, 19 Nev. 384; State v. Hoadley, 20 Nev. 317.
That plaintiff has not capacity to sue is ground of demurrer. Rev. Laws, 6040.
If no such objection is taken either by demurrer or answer, defendant shall be deemed to
have waived same. Civ. Pr. Act, sec. 103.
If matters contained in sec. 13 of real estate act are matters in abatement, then there is no
call for plaintiff making any reference thereto in complaint; such matters can be raised only
by defendant in his answer, and, having failed to raise them, he has waived that defense.
South Yuba W. & M. Co. v. Rosa, 80 Cal. 333; Alaska Salmon Co. v, Standard Box Co., 158
Cal. 567.
Section 13 is unconstitutional also because unintelligible and impossible of compliance. It
provides broker cannot maintain action without alleging and proving he was duly licensed.
cannot maintain action without alleging and proving he was duly licensed.
Act is precisely similar to those requiring partnership to file certificate, or persons doing
business under fictitious name to file certificate, or foreign corporation to file copy of articles.
Such provisions have been held universally to constitute matters in abatement or as going to
capacity to sue. Failure does not affect jurisdiction or plaintiff's cause of action or defendant's
defense. Cal. S. & L. Association v. Harris, 111 Cal. 133; Phillips v. Coldtree, 74 Cal. 152.
Such failure should have been set up in answer, else it is waived. Ontario State Bank v.
Tibbitts, 80 Cal. 68; Amundson v. Shaffer, 36 Cal. App. 398; Laborry v. Orphan Asylum, 97
Cal. 270.
Act also violated sec. 20 of art. 3 of constitution against local or special laws regulating
practice in courts.
OPINION
Action for the recovery of a commission for the sale of real estate. For convenience the
parties will be referred to as they were designated in the court below. The case was tried by
the court, which found that the defendant Mrs. C. E. Mack was the owner of the property, and
that defendant C. E. Mack, representing himself as her agent, employed the plaintiff to secure
a purchaser for said property and agreed to give him as his commission for making such sale
the sum of $1,000. Judgment was given plaintiff for the sum of $500 as his balance due of
said commission. The defendants appealed from the judgment and the order denying their
application for a new trial.
The first error complained of is the order of the court overruling defendant's demurrers to
the amended complaint. It is contended that the amended complaint shows upon its face that
the court was without jurisdiction of the persons of the defendants or the subject of the action
and does not state facts sufficient to constitute a cause of action. The alleged defects of the
amended complaint in these respects are based upon the claim that it shows that plaintiff
is a real estate broker within the meaning of an act to define,
amended complaint in these respects are based upon the claim that it shows that plaintiff is a
real estate broker within the meaning of an act to define, regulate, and license real estate
brokers and real estate salesmen, to create a state real estate board, and to provide a penalty
for a violation of its provisions, approved March 10, 1923, and fails to allege that he was a
duly licensed real estate broker or real estate salesman at the time the alleged cause of action
arose as required by section 13 of said act.
The first paragraph of section 1 of the act provides as follows:
It shall be unlawful on and after July 1, 1923, for any person, copartnership, association
or corporation to act as a real estate broker or real estate salesman, or to advertise or assume
to act as such real estate broker or real estate salesman without a license issued by the real
estate board.
The first three paragraphs of section 2 of the act provides as follows:
A real estate broker within the meaning of this act is any person, firm, partnership,
copartnership, association or corporation who for a compensation or valuable consideration
sells or offers for sale, buys or offers to buy, or negotiates the purchase or sale or exchange of
real estate, or options thereon, or who leases or offers to lease, or rents or offers to rent, any
real estate or the improvements thereon for others, as a whole or partial vocation.
A real estate salesman within the meaning of this act is any person who for compensation
or valuable consideration is employed either directly or indirectly by a real estate broker to
sell or offer to sell, or to buy or offer to buy, or to negotiate the purchase or sale or exchange
of real estate, or options thereon, or to lease, to rent or offer for rent any real estate, or to
negotiate leases thereof; or of the improvements thereon, as a whole or partial vocation.
One act for a compensation or valuable consideration of buying or selling real estate of or
for another, or offering for another to buy or sell, or exchange real estate, or options
thereon, or leasing,
offering for another to buy or sell, or exchange real estate, or options thereon, or leasing, or
renting, or offering to rent real estate, except as herein specifically excepted, shall constitute
the person, firm, partnership, copartnership, association or corporation performing, offering,
or attempting to perform any of the acts enumerated herein, a real estate broker or a real estate
salesman within the meaning of this act.
Section 3 of the act provides for the creation of the real estate board mentioned in section
1.
Section 12 of the act provides as follows:
Any person or corporation violating a provision of this act shall upon conviction thereof,
if a person, be punished by a fine of not more than one thousand ($1,000) dollars, or by
imprisonment in the county jail for a term not to exceed one year, or by both such fine and
imprisonment, in the discretion of the court and if a corporation, be punished by a fine of not
more than two thousand five hundred ($2,500) dollars. Any officer or agent of a corporation,
or member or agent of a copartnership or association, who shall personally participate in or be
accessory to any violation of this act by such copartnership, association or corporation, shall
be subject to the penalties herein prescribed for individuals.
Nothing herein contained shall be construed to release any person, corporation,
association, or copartnership from civil liability or criminal prosecution under the general
laws of this state.
The board, or any member thereof, may prefer a complaint for violation of section one of
this act before any court of competent jurisdiction, and it may take the necessary legal steps
through the proper legal officers of this state to enforce the provisions hereof.
Section 13 of the act provides as follows:
No person, copartnership, association or corporation engaged in the business or acting in
the capacity of a real estate broker or a real estate salesman within this state shall bring or
maintain any action in the courts of this state for the collection of compensation for the
performance of any of the acts mentioned in section two of this act without alleging and
proving that such person, copartnership, association or corporation was a duly licensed
real estate broker or real estate salesman at the time the alleged cause of action arose."
this act without alleging and proving that such person, copartnership, association or
corporation was a duly licensed real estate broker or real estate salesman at the time the
alleged cause of action arose. Stats. 1923, p. 238 et seq., c. 139.
1. The amended complaint shows upon its face that plaintiff was acting in the capacity of
a real estate broker or real estate salesman within the meaning of the law when he performed
the acts for which he seeks to recover a commission, and fails to allege that he was duly
licensed as such as required by said section 13. It is insisted by counsel for respondent that
this section of the act is unconstitutional, in that it violates that certain provision of the
constitution which provides that:
Each law enacted by the legislature shall embrace but one subject, and matter properly
connected therewith, which subject shall be briefly expressed in the title; and no law shall be
revised, or amended by reference to its title only; but, in such case, the act as revised, or
section as amended, shall be reenacted and published at length. Section 17, art. 4, of the
Constitution of Nevada.
It is urged that the section amends paragraph 2 of section 96 of the civil practice act (Rev.
Laws, 5038) which requires in the complaint a statement of the facts constituting the cause
of action, in ordinary and concise language, and that no such designation is made in the title
of the real estate act. The contention is without merit. The section of the practice act is not
affected at all. Certainly the legislature has plenary power acting within constitutional rights
to prescribe what acts shall constitute a cause of action on any given subject. The act is
legislation on a certain subject which is briefly expressed in the title. Section 13 merely
makes the possession of a proper license an essential element of the cause of action. There are
a number of similar acts of the legislature and they are not deemed inimical to the
constitutional provision.
2. It is also contended by plaintiff that said section only affects plaintiff's capacity to sue,
and was waived because no special demurrer was interposed on that ground.
ground. We are unable to agree with this view. The act makes the business of acting in the
capacity of a real estate broker or real estate salesman without a license duly issued by the
real estate board created by it unlawful. It is true that section 13 imposes upon the person,
copartnership, association, or corporation so acting the legal incapacity to sue. But a personal
disability in this respect is not the only penalty attached to the act. A violation of the
provisions requiring a license before acting in such capacity is made a gross misdemeanor.
The purpose of the act is to restrict the vocation of acting as a real estate broker or real estate
salesman to persons bearing a good reputation for honest, truthfulness, fair dealing, and
competency. See Stats. 1923, p. 241; Riley v. Chambers, 181 Cal. 589, 185 P. 855, 8 A. L. R.
418.
In the case cited a similar act was held to be proper exercise of the police powers resident
in the legislature. In Beebe v. Kistler, 52 Cal. App. 494, 199 P. 537, an action in which the
complaint failed to allege that plaintiff was duly licensed under the law at the time his cause
of action arose was reversed on this ground and the action dismissed.
In Firpo v. Murphy, 72 Cal. App. 249, 236 P. 968, it was held that the statute was one
designated for the protection of the public and that a contract was made in violation of its
provisions was void.
In Groetzinger v. Forest Hills Terrace Corporation, 123 Misc. Rep. 274, 205 N. Y. S. 125,
it was held that the business of real estate broker or salesman was a proper subject for
legislative regulation, and that a complaint which failed to state that the plaintiff was licensed
as a real estate broker or salesman did not state facts sufficient to constitute a cause of action
and deprived him of the legal capacity to sue.
As stated by Mr. Clark in his work on Contracts (3d ed.), p. 325:
There are numerous statutes in all states, enacted for the purpose of protecting the public
in dealing with certain classes of trades or professional men, and with certain articles of
commerce. Protection to the public is generally the object of these statutes, and they are
construed as prohibiting contracts entered into without having complied with the
prescribed conditions."
is generally the object of these statutes, and they are construed as prohibiting contracts
entered into without having complied with the prescribed conditions.
The act under consideration clearly falls within this class of statutes. It operates upon the
business, as well as the person, of the one attempting to act as a real estate broker or salesman
without having qualified as required by the act. It may be admitted that section 13 affects
plaintiff's capacity to sue, but the effect of the entire act plainly prevents the making of
contracts for the selling, offering to sell, or offering to buy, negotiating the purchase or sale or
exchange of real estate, or options thereon, or leasing or offering to lease, or renting or
offering to rent, any real estate or the improvements thereon for others, as a whole or partial
vocation, by unlicensed individuals. This obvious purpose would be defeated if in the face of
the mandatory provisions of section 13 it were held that the failure to procure a proper license
was a matter of defense, and, if not raised by special demurrer, or plea, was waived. The
authorities cited by counsel for plaintiff are not in point nor analogous. They consist mostly
of cases which deal with statutes in which the penalty prescribed is a disability to sue until the
statute is complied with. The penalties imposed are for revenue or administrative purposes
and the statutes do not go, as does the one under consideration, to the lawfulness of business
transacted.
3. The case of Shaffer v. Beinhorn, 190 Cal. 569, 213 P. 960, relied on by counsel, is not
in point. In that case the court merely held that the complaint did not show on its face that the
plaintiff was engaged in the business of acting in the capacity of a real estate broker or real
estate salesman within the meaning of the statute. A different situation is presented here. The
amended complaint alleges that the defendant C. E. Mack, representing himself as the agent
of the defendant Mrs. C. E. Mack, employed plaintiff to secure a purchaser for said property,
and agreed to give him, as his commission for making such sale, the sum of $1,000; that the
plaintiff made the sale; that there is now owing and payable from said defendants, on
account of the commission for making the sale, the sum of $500clearly the acts of a
broker or salesman within the meaning of section 2 of the act.
the sale; that there is now owing and payable from said defendants, on account of the
commission for making the sale, the sum of $500clearly the acts of a broker or salesman
within the meaning of section 2 of the act. For the reasons given we are of the opinion that the
amended complaint does not state facts sufficient to constitute a cause of action, and that the
demurrers thereto should have been sustained.
Counsel for defendants insist that, as plaintiff failed to allege or prove a license, the action
should be dismissed; but, as counsel for plaintiff asserts that plaintiff was duly licensed under
the law at the time of the transaction involved and can amend his complaint to meet the
objection, we think this course is in keeping with the justice of the case. The demurrers were
submitted without argument and the point was not called to the attention of the trial court. If
it had been, the demurrers would doubtless have been sustained with leave to amend to meet
the objection.
The judgment is reversed, and the lower court is directed to permit plaintiff to amend his
complaint for a retrial of the case.
It is so ordered.
____________
50 Nev. 298, 298 (1927) Morris v. Morris
MORRIS v. MORRIS
No. 2760
August 1, 1927. 258 P. 232.
1. Appeal and ErrorFrom Order Denying New Trial.
Where there is no appeal from order denying motion for new trial and evidence is not before
reviewing court, only judgment roll and bill of exceptions can be considered.
2. PleadingConstruction Received.
Where defendant answers complaint without first attacking its sufficiency, it should receive
construction favorable to plaintiff.
3. DivorcePleadingStating Cause of Action.
In divorce suit complaint alleging intermarriage of parties, plaintiff's residence for statutory period,
and defendant's inhuman and cruel treatment by beating plaintiff with fist and threatening physical
violence held to state cause of action.
4. DivorceCondonation.
In suit for divorce for cruel and inhuman treatment, condonation is affirmative defense.
5. PleadingReply.
In divorce suit allegations of reply setting out additional acts of cruelty by defendant by beating and
abusing plaintiff and throwing iodine on her held not subject to motion to strike as being irrelevant,
immaterial, and redundant.
6. PleadingReply.
In divorce suit allegations of reply setting out additional acts of cruelty by defendant by beating and
abusing plaintiff and throwing iodine on her held not subject to motion to strike as constituting no part of
a reply.
Appeal and Error4 C. J. sec. 2298, p. 521, n. 76; sec. 2558, p. 665, n. 15; p. 666, n. 16.
Divorce19 C. J. sec. 276, p. 111, n. 48; sec. 295, p. 115, n. 19; sec. 299, p. 116, n. 34 (new).
Pleading31 Cyc. p. 82, n. 11; p. 639, n. 12.
Divorce suit by Hazel H. Morris against James E. Morris. Judgment for plaintiff, and
defendant appeals. Affirmed.
I. S. Thompson, for Appellant:
Findings can go no further than allegations of complaint. If evidence is introduced outside
allegations, complaint must be amended or evidence disregarded.
Batchelder v. Baker, 79 Cal. 267; Hall v. Arnott, 80 Cal. 348.
Reply may deny only new matter in answer or set up new matter that avoids same. Rev.
Laws, 5057. Defendant cannot answer reply. He can only demur. Rev. Laws, 5059.
Complaint alleges acts of cruelty that occurred nine years before, and others three years.
None is alleged since. Unreasonable lapse of time indicates connivance, collusion, or
condonation. Cal. Civ. Code, sec. 125; Franklin v. Franklin, 106 P. 353.
To revive condoned offense, party accused must commit new offense constituting cause
for divorce. 9 Am. & Eng. Enc. 825.
Continuance of cohabitation after knowledge of misconduct constitutes condonation. 9 R.
C. L. 382; 14 Cyc. 639.
Wm. J. Forman, for Respondent:
Physical violence, threats of bodily harm, failure to support or to furnish medical attention,
and compelling wife to do work unsuited to her health, all constitute cruelty. Kapp v. Court,
31 Nev. 444; 19 C. J. 48, 54, 55.
Lower court found there was no condonation. In absence of testimony such finding is
conclusive. Phillips v. Snowden Placer Co., 40 Nev. 67.
Defenses need not be negatived in complaint; they must be pleaded and proved by defendant.
Breedlove v. Breedlove, 61 NE. 797.
That mother of five children endures cruel treatment for long time does not prove
condonation. If improper treatment continues there is no condonation. Bliss v. Bliss, 142 SW.
1081; Mandelin v. Mandelin, 139 NW. 152.
Repetition revives offense. Subsequent cruel acts not in themselves sufficient, justify
divorce. 19 C. J. 88, 89; Sharp v. Sharp, 6 NE. 15.
None of three California cases cited by appellant sustains his statement that findings can
go no further than allegations of complaint.
allegations of complaint. Findings are not based on complaint, but on issues made by
pleadings. 25 C. J. 1133.
New matter in reply is deemed denied.
If matter was immaterial, appellant was not prejudiced by court's refusal to strike it. Pruett
v. Caddigan, 42 Nev. 329.
Appellant was not prejudiced by allegations not included in findings. Peterson v. Silver Peak,
37 Nev. 19.
Right to insist on technical motion on appeal is waived by pleading or going to trial. Union
State Bank v. Woodside, 178 P. 109.
OPINION
The parties will be referred to as they were designated in the trial court.
1. The plaintiff brought suit for a divorce on the ground of extreme cruelty, and from a
judgment and decree in her favor the defendant has appealed. There is no appeal from an
order denying a motion for a new trial and the evidence is not before us. We can consider
only the judgment roll and a bill of exceptions containing a certain motion and the order
thereon.
As we interpret the brief of the defendant it presents three points, which are: (1) The
complaint does not allege facts sufficient to constitute a cause of action. (2) The court erred in
denying the motion of defendant to strike a portion of the reply. (3) The findings are not
supported by the allegations of the complaint.
2, 3. The defendant answered the complaint without first attacking its sufficiency. In such
a situation the complaint should receive the construction more favorable to the plaintiff.
Neilsen v. Rebard, 43 Nev. 274, 183 P. 984. However, the complaint unquestionably states a
cause of action. It alleges the intermarriage of the parties in 1908; that the plaintiff had been a
continuous resident for more than the statutory length of time. It then alleges that the
defendant, during the greater part of the married life of the parties, had treated plaintiff in
an inhuman and cruel manner,
greater part of the married life of the parties, had treated plaintiff in an inhuman and cruel
manner, in that in the month of August, 1922, he beat and struck the plaintiff with his fist
without reason therefor until her body was black and blue with bruises, and that on several
occasions thereafter defendant had attempted and threatened to choke plaintiff and commit
physical violence upon her. The complaint then proceeds to detail other acts of cruelty
committed subsequent to the date mentioned.
4. The contention must be rejected. Kapp v. District Court, 31 Nev. 444, 103 P. 235.
If there was any condonation, it does not appear from the complaint; besides, it is an
affirmative defense. 9 R. C. L. p.286, sec. 179.
5, 6. We do not think the court erred in denying the motion to strike. The matter sought to
be stricken reads:
Alleges that in addition to the wrongful acts committed against plaintiff by defendant as
alleged in her complaint, defendant committed the following additional acts of cruelty, which
plaintiff specified, as follows: At and about the time of the birth of their youngest child,
Hazel, defendant again beat, abused, and mistreated plaintiff. That between the dates of the
birth of Barbara and Hazel, the defendant threw iodine upon plaintiff, whereby her leg was
burned, causing her great pain and suffering and a large sore to be formed thereby.
The grounds of the motion to strike are that the said matter is irrelevant, immaterial, and
redundant, and constitutes no part of a reply.
It is neither. Furthermore, it is perfectly proper to plead such matter in a reply. Johnson v.
State Bank of Seneca, 59 Kan. 250, 52 P. 860.
As to the third contention, we may say that the findings are in perfect accord with the
allegations of the complaint and amply support it.
There being no error, the judgment is affirmed.
____________
50 Nev. 302, 302 (1927) Tesoriere v. District Court
TESORIERE v. DISTRICT COURT
No. 2782
August 4, 1927. 258 P. 291.
1. StatutesSix Months' Divorce Law Held Initiative Act, Not Referendum Measure, and
Hence Amendable by Legislature.
People's act of 1922 (Stats. 1923, c. 214), requiring six months' residence, before suing for divorce, is
an initiative act, not a referendum measure amendable only by popular vote under Const, art. 19, and
hence could be amended by legislature, as was done by Stats. 1927, c. 96, reducing residential
requirement to three months; referendum measure contemplated by such article being one duly enacted
by legislature and thereafter referred to and adopted by people in whole or part as authorized by such
article.
2. StatutesLaw Enacted by People Cannot Be Amended or Repealed by Direct Vote of
People.
Law enacted by people in conformity to Const, art. 19, sec. 3, cannot be amended or repealed by
direct vote of people, as provided in section 2, in view of express provision of initiative and referendum
amendments of constitution that referendum applies only to measures passed by legislature.
3. StatutesAmendment of Initiative Six Months' Divorce Law by Three Months' Statute
Cannot Be Submitted to People for Approval.
Amendment of people's act of 1922 (Stats. 1923, c. 214), requiring six months' residence before suing
for divorce, by Stats. 1927, c. 96, reducing residential requirement to three months, cannot be submitted
to people for approval under Const. art. 19; there being no law on which to predicate referendum
petition, as provided in sections 1 and 2, nor any intention by adoption of initiative to curtail legislature's
power over initiative measures, except as provided in section 3.
4. StatutesThree Months' Divorce Law Constitutional.
Stats. 1927, c. 96, amending people's act of 1922 (Stats. 1923, c. 214), by reducing residential
requirement for divorce from six to three months, does not violate Const. art. 4, sec. 17, with respect
to its title, which is consistent with general object and purpose of act proposed by legislature and
approved by people.
5. StatutesThree Months' Divorce Law Valid.
Stats. 1927, c. 96, reducing residential requirement of people's act of 1922 (Stats. 1923, c. 214) for
divorce from six months to three months, held not void as not purporting to amend existing law, but
merely proposing initiative measure.
Constitutional Law12 C. J. sec. 47, p. 703, n. 97.
Statutes36 Cyc. p. 942, n. 24 (new); p. 1031, n. 31; p. 1054, n. 41 (new).
Original proceeding (in prohibition) by Leonarda Tesoriere against the Second Judicial
District Court of the State of Nevada in and for the county of Washoe, and George A.
Bartlett, District Judge thereof. Writ denied, and proceedings dismissed.
Harland L. Heward, for Petitioner:
In 1920 initiative petition under Const, art. 19, sec. 3, was filed asking for change in
divorce law. Measure was rejected by legislature in 1921, and legislative substitute was
proposed and passed (Stats. 1921, 385) and approved by people at election of 1922. Stats.
1923, 389. At 1927 session attempt was made to further amend divorce law. Stats. 1927, 127.
I contend this latter statute is unconstitutional and void, because legislative substitute was
carried at 1922 election. Such law cannot be overruled, annulled or in any way made
inoperative except by direct vote of people. Const. art. 19, sec. 2.
Legislative substitute is in nature of referendum. People had in mind sec. 2 of constitution
when they passed sec. 3, of art. 19. Substitute was in nature of law or resolution. Having
passed by vote of people it cannot be annulled by legislature.
Though majority of electors did not vote on 1922 measure, intention of section 2 is that
majority of electors who do vote controls. If majority abstain from voting they do not have
effect of negative vote. They merely have no voice in matter.
Act of 1927 is obviously not attempt to amend divorce law. Title does not so state, nothing
being amended but legislative substitute. Legislature of 1927 knew 1921 legislature had
passed substitute, and 1927 legislature saw fit to amend substitute. Now that substitute was
amended, it was duty of secretary of state to submit same to electors at next general election.
Stats. 1921, 385.
Act of 1927 is valid as amendment of substitute, but can go no further. You cannot, by
1927 act, amend substitute and then maintain you are thereby amending section 22 of divorce
act. If 1927 act attempts to amend section 22 of divorce act, then title is defective as not
expressing real subject.
If 1927 act attempts to amend section 22 of divorce act, then title is defective as not
expressing real subject. State v. Commissioners, 22 Nev. 399; Bell v. Court, 28 Nev. 280;
State v. Gibson, 30 Nev. 353.
Thatcher & Woodburn, L. D. Summerfield and McCarran & Mashburn, for Respondents:
In 1920 initiative petition was filed to amend divorce law of 1861, which was presented to
legislature of 1921 and rejected. Substitute measure was then proposed. Stats. 1921, 385.
Initiative and substitute measures were submitted to voters at election of 1922. Initiative
failed but substitute received approval of majority of electors who did vote thereon, though it
failed by more than 3,471 votes of receiving majority of all electors voting.
Legislature of 1927 amended substitute (Stats. 1927, 126) reducing residence to three
months and adding insanity as cause.
State legislature possesses legislative power unlimited, except by federal constitution and
such restrictions as are expressly reserved. Gibson v. Mason, 5 Nev. 283; State v. Williams,
46 Nev. 263.
Amendment of 1904 (art. 19) was strictly referendum provision, relating only to right of
majority of electors voting to approve or reject act of legislature.
Section 3 was added to art. 19 at election of 1912, reserving to people power of initiative.
Section 3 so amends section 1 that part of act can be submitted. There would have been no
reference in section 3 to referendum as to general state legislation, if it had not been for desire
to provide that sections or parts of acts could be submitted. As initiative measure cannot be
amended, it was wise provision that substitute measure on same subject can be proposed.
Substitute is initiative measure, under power reserved in section 3, and therefore subject to
amendment after 3 years.
Initiative laws require majority of votes cast thereon and are subject to amendment. If
referendum measure has majority of all votes cast at election it is immune from legislative
change without action of same dignitya vote of the people.
from legislative change without action of same dignitya vote of the people.
If vote on substitute be construed as referendum under section 2, act is nevertheless subject
to amendment because act did not receive majority of electors voting at election, though it did
receive majority of those voting on measure itself. State police bill of 1908 was so amended
in 1909. When constitutional or statutory provision requires majority of electors, bare
majority of those voting on proposition is not sufficient. People v. Berkeley, 23 L. R. A. 838;
20 C. J. 206, 207.
Laws are not to be static. Power to amend is necessary as power to enact.
Title of 1927 act is complete; it not only refers to title of act to be amended, but also
particular section. Act to be amended is legislative substitute for act affecting divorce. Art. 6,
sec. 7, should be liberally construed. State v. Ah Sam, 15 Nev. 27; Worthington v. Court, 37
Nev. 213.
If possible, legislative act or valid part thereof will be construed so as to make it effective.
Gibson v. Mason, supra; State v. Trolson, 21 Nev. 419.
Law was not amended in 1927 by title only, but revised section was reenacted at length.
Const. art. 4, sec. 17. Amendment is repeal only in so far as it changes original. 36 Cyc. 1083,
1085; Barrows v. Co., 75 Fed. 794; Worthington case, supra.
It is clear intention was to amend act and not propose legislative substitute. Hall v. Dunn,
25 L. R. A. (N.S.), 193; Callahan v. Jennings, 27 P. 1055; Ely v. Holton, 50 N.Y. 598.
Legislature was but continuing recitals in original act; it was not reenacting them. Art. 4,
sec. 17.
M. A. Diskin, Brown & Belford, Platt & Sanford, and Norcross & Cheney, Amici Curiae:
Introduction of Stats. 1921, 305, shows it was initiative measure rejected by legislature;
that different measure on same subject was proposed under art. 19, sec. 4, of constitution.
Section 2 made it duty of secretary of state to submit proposed amendment to people.
state to submit proposed amendment to people. Neither initiative nor substitute was then law.
Not being law it could not be referendum. Sections 1, 2.
Petitioner fails to distinguish between initiative and referendum. Initiative gives people
power to do what legislature failed to do; referendum gives them power to approve or reject
what it has done. State v. Becker, 240 SW. 229. Stats. 1921, 385, was mere legislative
proposal, which could not become effective until adopted by people. If legislature rejects
initiative proposal it may propose different one on same subject; both are submitted to people.
Art. 19, sec. 3. Sections 1 and 2 apply only to referendum provisions of section 3, but in no
way affect initiative provisions of section 3. Initiative measure may be changed by legislature
after three years; referendum only by people. Section 1, 2.
If we assume for sake of argument that act of 1923 proposing substitute was at time of
proposal duly enacted as a law, we must conclude same was never adopted because, under
art. 19, sec. 2, majority of those voting at election did not approve. On initiative, majority of
electors voting on measure is sufficient.
Title of Stats. 1927, 127, is not defective. There is no necessity for initiative measure to
have title as it is printed in full when proposed. Stats. 1921, 108, provided for submission of
rejected initiative and substitute measures. When approval by referendum is sought, title
alone is placed on ballot, with question, Shall the act entitled * * * be approved? 3 Rev.
Laws, 1919, p. 2767; State v. Langworthy, 104 P. 428; State v. Erickson, 244 P. 287.
Title of initiative proposal of 1923 was clearly and definitely identified. While it did not
become law until approved, yet when approved it became law with title indicated. After
approval it was law, not proposal, and when amended in 1927, legislature clearly identified
subject matter, and court could strike out all reference to title referring to An act proposing a
legislative substitute, and identify it as An act enacted pursuant to the direct vote of the
people, general election, 1922.
OPINION
This is an original proceeding in prohibition to test the constitutionality and the validity of
an act commonly known as and called the Three-Months Divorce Law of Nevada, approved
March 18, 1927 (Stats. 1927, c. 96, p. 126).
In June, 1927, one Frank Tesoriere, as plaintiff, commenced an action in the court below
against Leonarda Tesoriere, his wife, for a divorce upon the ground of cruelty. The complaint
alleges:
That said plaintiff is now and has been continuously a bona fide resident of, and actually,
physically, and corporeally present in the county of Washoe, State of Nevada, for a period of
three months and more, and less than six months, immediately preceding the commencement
of this action.
The defendant, a nonresident, appeared in the action and interposed a demurrer to the
complaint upon the ground that the court has no jurisdiction of the person of the defendant
or the subject matter of the action. The demurrer was overruled, and the defendant by court
order was ordered to answer the complaint within the statutory period of ten days. Thereafter
the defendant applied for prohibition from this court to prohibit and restrain the lower court
and Hon. Geo. A. Bartlett, judge thereof, from proceeding to hear and determine said divorce
action upon the ground that the statute of 1927 under which the court assumed jurisdiction is
unconstitutional and invalid and that unless prohibited the respondents would proceed to hear
and determine said divorce action to the injury of the petitioner. For answer to the petition,
the respondents assert their jurisdiction and insist that the statute of 1922 (Stats. 1923, c.
214), as amended by the statute of 1927, is in all respects constitutional and valid, and that
the petition for prohibition should be denied and the proceeding dismissed.
The statute in question is grounded upon article 19 of the constitution, and is the
outgrowth of the provisions contained in section 3 of that article. The attack upon its
constitutionality makes it necessary to set out in extenso article 19:
Section 1. Whenever ten per centum or more of the voters of this state, as shown by the
number of votes cast at the last preceding general election, shall express their wish that any
law or resolution made by the legislature be submitted to a vote of the people, the officers
charged with the duty of announcing and proclaiming elections, and of certifying
nominations, or questions to be voted on, shall submit the question of the approval or
disapproval of said law or resolution to be voted on at the next ensuing election wherein a
state or congressional officer is to be voted for, or wherein any question may be voted on by
the electors of the entire state.
Sec. 2. When a majority of the electors voting at a state election shall by their votes
signify approval of a law or resolution, such law or resolution shall stand as the law of the
state, and shall not be overruled, annulled, set aside, suspended, or in any way made
inoperative except by the direct vote of the people. When such majority shall so signify
disapproval the law or resolution so disapproved shall be void and of no effect.
Sec. 3. The people reserve to themselves the power to propose laws and the power to
propose amendments to the constitution, and to enact or reject the same at the polls,
independent of the legislature and also reserve the power at their option to approve or reject at
the polls, in the manner herein provided, any act, item, section or part of any act or measure
passed by the legislature, and section one of article four of the constitution shall hereafter be
considered accordingly. The first power reserved by the people is the initiative, and not more
than ten per cent (10%) of the qualified electors shall be required to propose any measure by
initiative petition, and every such petition shall include the full text of the measure so
proposed. Initiative petitions, for all but municipal legislation, shall be filed with the
secretary of state not less than thirty {30) days before any regular session of the
legislature; the secretary of state shall transmit the same to the legislature as soon as it
convenes and organizes.
legislation, shall be filed with the secretary of state not less than thirty (30) days before any
regular session of the legislature; the secretary of state shall transmit the same to the
legislature as soon as it convenes and organizes. Such initiative measure shall take
precedence over all measures of the legislature except appropriation bills, and shall be
enacted or rejected by the legislature, without change or amendment, within forty (40) days. If
any such initiative measure so proposed by petition, as aforesaid, shall be enacted by the
legislature and approved by the governor in the same manner as other laws are enacted, same
shall become a law, but shall be subject to referendum petition as provided in sections one
and two of this article. If said initiative measure be rejected by the legislature or if no action
be taken thereon within said forty (40) days, the secretary of state shall submit the same to the
qualified electors for approval or rejection at the next ensuing general election; and if a
majority of the qualified electors voting thereon shall approve of such measure it shall
become a law and take effect from the date of the official declaration of the vote; an initiative
measure so approved by the qualified electors shall not be annulled, set aside, or repealed by
the legislature within three (3) years from the date said act takes effect. In case the legislature
shall reject such initiative measure, said body may, with the approval of the governor,
propose a different measure on the same subject, in which event both measures shall be
submitted by the secretary of state to the qualified electors for approval or rejection at the
next ensuing general election. * * *
In 1920 the electors, representing more than 10 per cent of the qualified electors, in
conformity to section 3, proposed a measure by initiative petition entitled:
An act affecting divorce and matters properly connected therewith, providing for
interlocutory decrees of divorce in certain cases and eliminating what are commonly known
as short-term decrees in divorce cases, and repealing section 22 of an act entitled An act
relating to marriage and divorce,' approved November 2S, 1S61, as amended, and all other
acts or parts of acts in conflict herewith."
to marriage and divorce,' approved November 28, 1861, as amended, and all other acts or
parts of acts in conflict herewith.
This proposed initiative measure was presented to the legislature of 1921 and was rejected.
Thereupon the legislature, in conformity to section 3, with the approval of the governor,
proposed a different measure on the same subject, and both measures were submitted by the
secretary of state to the qualified electors for approval or rejection at the general election held
November 7, 1922. The measure proposed by the legislature was approved by a majority of
the qualified electors voting thereon, and the measure proposed by the initiative petition was
rejected by a majority of the electors voting upon it. The legislative proposal so approved
became a law from the date of the official declaration of the vote thereon in December, 1922.
The title of the act so approved is as follows:
An act proposing a legislative substitute for An act affecting divorce and matters
properly connected therewith, providing for interlocutory decree of divorce in certain cases
and eliminating what are commonly known as short-term decrees in divorce cases, and
repealing section 22 of an act entitled An act relating to marriage and divorce, approved
November 28, 1861, as amended, and all other acts or parts of acts in conflict herewith.'
The text of the law so approved reads as follows:
* * * Divorce from the bonds of matrimony may be obtained, by complaint, under oath,
to the district court of the county in which the cause therefor shall have accrued, or in which
the defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be
either the county in which the parties last cohabited, or in which the plaintiff shall have
resided six months before suit be brought, for the following causes. * * * Stats. 1923, c. 214.
The legislature in 1927 amended the People's Law of 1922, entitled as follows:
An act to amend section 1 of an act entitled An act proposing a legislative substitute for
An act affecting divorce and matters properly connected therewith, providing for
interlocutory decrees of divorce in certain case,
divorce and matters properly connected therewith, providing for interlocutory decrees of
divorce in certain case, and eliminating what are commonly known as short-term decrees in
divorce cases, and repealing section 22 of an act entitled An act relating to marriage and
divorce,' approved November 28, 1861, as amended, and all other acts or parts of acts in
conflict herewith, presented to this legislature by the secretary of state upon initiative
petition under section 3 of article 19 of the constitution, and to provide for the submission of
a legislative substitute by the secretary of state of the qualified electors for approval or
rejection at the next general election,' approved March 28, 1921, enacted pursuant to direct
vote of the people, general election, November 7, 1922. Stats. 1927, p. 126.
The text of the amendment reads as follows:
Divorce from the bonds of matrimony may be obtained, by complaint, under oath, to the
district court of the county in which the cause therefor shall have accrued, or in which the
defendant shall reside, or be found, or in which the plaintiff shall reside, if the latter be either
the county in which the parties last cohabited, or in which the plaintiff shall have resided
three months before suit be brought, for the following causes. * * *
1. With this extended review of the legislation leading up to the amendment of 1927, we
come to the consideration of what is considered to be the most important question in the case
which is, Is the People's Law of 1922 a referendum measure which can be amended only by
a vote of the people as provided in article 19 of the constitution? But, although we state it as a
question, the answer does not seem to us open to debate. A referendum measure, as
contemplated by the article in question, is one which has been enacted in due form by the
legislature and thereafter referred to and adopted by the people in whole or in part, as
authorized by the article of the constitution mentioned. Such is not the history of the 1922
law; hence it is not a referendum measure, and therefore could be amended by the legislature,
as was done by the 1927 act.
2. But we are met with the contention that a law enacted by the people in conformity to
section 3 of article 19 should be so interpreted as to carry out the purposes of the people in
adopting the initiative and referendum amendments to the constitution, and, when read
together and so interpreted, no logical reason can be assigned why a law enacted by the
people, from whatever source it originates, should not be amended or repealed except by a
direct vote of the people as provided in section 2 of article 19. This position is untenable, and
the reason is to be found in the express provisions of the amendments, which cannot be
changed by a judicial interpretation that would result in the nullification of the plain meaning
and mandate that the referendum applies only to a law, act, item, section, or part of any
measure passed by the legislature. Had the people, by the adoption of the amendments,
intended that laws enacted by the people as provided in section 3 should be subject to
referendum, they would have so provided.
For reply to the petition for prohibition from this court the attorneys for respondents, as
well as the attorneys amici curiae, properly stated that the People's Act of 1922 was and is
an initiative act, which, upon the expiration of three years from the date it took effect, is
amendable by the legislature at will. But since we are of opinion that the act is not a
referendum measure, it is unnecessary to enter upon an extended discussion of the character
of the act. It is sufficient to say that the legislature of 1927, in amending the act of 1922 by
reducing the residential requirement of six months as provided therein, to three months, acted
within its constitutional right, and therefore the amendment must stand.
3. In opposition to this conclusion it is submitted that, even though it be conceded that the
legislative measure so approved by the people and enacted into a law is an initiative measure,
to carry out the purpose of the people in adopting the initiative amendment of the
constitution, no logical reason appears why the people should be deprived of the right to
submit the amendment to the people for approval or disapproval.
people for approval or disapproval. This contention is untenable for two reasons: One, that
the initiative measure was not enacted by the legislature and approved by the governor in the
same manner as other laws are enacted, consequently there is no law upon which to predicate
a referendum petition, as provided in sections 1 and 2 of article 19; second, that by the
adoption of the initiative it was not the intention of the people to curtail the power of the
legislature over initiative measures except in such manner and to such extent as is expressly
stated in section 3.
4. It is contended that the statute under review is violative of section 17 of article 4 of the
constitution in respect to its title. This contention is without merit. The title might have been
more happily worded, but it is manifestly consistent with the general object and purpose of
the proposal offered by the legislature and submitted to the people for approval or rejection,
and, the voters having approved the act, it cannot be said that the people or the legislature
were misled or deceived by its title.
5. It is contended in the last place that the act is void for the reason that it does not purport
to amend, and is not an amendment of, any existing law, but is merely a proposal of an
initiative measure and consequently is of no force and effect. This contention is also without
merit. It is clear that the legislature, in enacting the 1927 act, undertook to amend an existing
law.
Entertaining these views, it follows that the petition for prohibition to issue from this court
must be denied and the proceedings dismissed.
It is so ordered.
Coleman, J.: I concur.
Ducker, J., concurring:
I concur, but desire to express my views on the main question discussed in the majority
opinion.
The measure proposed by the legislature of 1921, approved by the governor and submitted
to the people of this state an approved by them at the general election of 1922, did not by
referendum become enacted into a law which could not be amended except by a direct
vote of the people, for three reasons, which are obvious from the provisions of sections 1
and 2 of article 19 of amendments to the constitution.
of 1922, did not by referendum become enacted into a law which could not be amended
except by a direct vote of the people, for three reasons, which are obvious from the provisions
of sections 1 and 2 of article 19 of amendments to the constitution. These sections deal solely
with the referendum and provide as follows:
Section 1. Whenever ten per centum or more of the voters of this state, as shown by the
number of votes cast at the last preceding general election, shall express their wish that any
law or resolution made by the legislature be submitted to a vote of the people, the officers
charged with the duty of announcing and proclaiming elections, and of certifying
nominations, or questions to be voted on, shall submit the question of the approval or
disapproval of said law or resolution to be voted on at the next ensuing election wherein a
state or congressional officer is to be voted for, or wherein any question may be voted on by
the electors of the entire state. * * *
Sec. 2. When a majority of the electors voting at a state election shall by their votes
signify approval of a law or resolution, such law or resolution shall stand as the law of the
state, and shall not be overruled, annulled, set aside, suspended, or in any way made
inoperative except by the direct vote of the people. When such majority shall so signify
disapproval the law or resolution so disapproved shall be void and of no effect.
It will be observed from these provisions that three things must occur before a law is
confirmed by the people so that it cannot be amended or repealed except by their direct vote:
First, there must be a law; second, there must be the expressed wish of 10 per centum or more
of the voters of the state that it be submitted to the vote of the people; and, third, a majority of
the electors voting at a state election must signify approval of the law.
None of these essentials appeared in the procedure followed as prescribed by section 3 of
said article 19 by which the said measure became a law. It was not a law when submitted, but
a measure proposed by the legislature with the approval of the governor under the right
conferred by section 3.
conferred by section 3. It was not referred to the electors for their approval or rejection by the
expressed wish of 10 per centum or more of the voters of the state, but by the legislature
under said authority of said section 3. It was not approved by a majority of electors voting at a
state election, but by a majority of the votes cast for and against the measure. Consequently it
did not by referendum become enacted into a law that could not be amended by the legislature
by reason of the prohibition of section 2 of article 19.
The law of 1922 came into force and effect by virtue of compliance with the method
provided in section 3 of article 19, for a choice to be made by the people between a measure
proposed by them and a different measure on the same subject proposed by the legislature.
This section, omitting the provisions concerning counties and municipalities, reads as
follows:
The people reserve to themselves the power to propose laws and the power to propose
amendments to the constitution, and to enact or reject the same at the polls, independent of
the legislature, and also reserve the power at their option to approve or reject at the polls, in
the manner herein provided, any act, item, section or part of any act or measure passed by the
legislature, and section one of article four of the constitution shall hereafter be considered
accordingly. The first power reserved by the people is the initiative, and not more than ten per
cent (10%) of the qualified electors shall be required to propose any measure by initiative
petition, and every such petition shall include the full text of the measure so proposed.
Initiative petitions, for all but municipal legislation, shall be filed with the secretary of state
not less than thirty (30) days before any regular session of the legislature; the secretary of
state shall transmit the same to the legislature as soon as it convenes and organizes. Such
initiative measures shall take precedence over all measures of the legislature except
appropriation bills, and shall be enacted or rejected by the legislature, without change or
amendment, within forty (40) days. If any such initiative measure so proposed by petition as
aforesaid, shall be enacted by the legislature and approved by the governor in the same
manner as other laws are enacted, same shall become a law, but shall be subject to
referendum petition as provided in sections one and two of this article.
enacted by the legislature and approved by the governor in the same manner as other laws are
enacted, same shall become a law, but shall be subject to referendum petition as provided in
sections one and two of this article. If said initiative measure be rejected by the legislature or
if no action be taken thereon within said forty (40) days, the secretary of state shall submit the
same to the qualified electors for approval or rejection at the next ensuing general election;
and if a majority of the qualified electors voting thereon shall approve of such measure it
shall become a law and take effect from the date of the official declaration of the vote; an
initiative measure so approved by the qualified electors shall not be annulled, set aside, or
repealed by the legislature within three (3) years from the date said act takes effect. In case
the legislature shall reject such initiative measure, said body may, with the approval of the
governor, propose a different measure on the same subject, in which event both measures
shall be submitted by the secretary of state to the qualified electors for approval or rejection
at the next ensuing general election. The enacting clause of all bills proposed by the initiative
shall be: The people of the State of Nevada enact as follows.' The whole number of votes
cast for justice of the supreme court at the general election last preceding the filing of any
initiative petition shall be the basis on which the number of qualified electors required to sign
such petition shall be counted. The second power reserved by the people is the referendum,
which shall be exercised in the manner provided in sections one and two of this article. * * *
If the conflicting measures submitted to the people at the next ensuing general election shall
both be approved by a majority of the votes severally cast for and against each of said
measures, the measure receiving the highest number of affirmative votes shall thereupon
become a law as to all conflicting provisions. The provisions of this section shall be
self-executing, but legislation may be especially enacted to facilitate its operation.
It will be observed that the italicized part of the section above quoted deals with proposed
measures, one by the people through the initiative and the other proposed by the
legislature with the approval of the governor as a substitute for the former, and not with
any act or part thereof or measure passed by the legislature, which only are subject to
referendum petition.
the people through the initiative and the other proposed by the legislature with the approval of
the governor as a substitute for the former, and not with any act or part thereof or measure
passed by the legislature, which only are subject to referendum petition.
It is true, as stated in the majority opinion, that a law enacted by the people pursuant to
section 3 is not subject to such petition.
Did the proposed measure become a law by reason of the initiative provisions of said
article? If so, it was clearly subject to amendment by the legislature in 1927, for more than
three years had expired from the date the act took effect. It was not a legislative-proof law by
reason of the referendum clauses of the article, and if the method prescribed in said section 3
by which the legislative substitute became a law is not initiative in that the statute originated
from the legislature instead of the people, it was within the power of the legislature to amend
it at any time; for except where the right to legislate is withheld from the legislature by article
19, it has full authority therein by reason of section 1, art. 4, of the constitution, which
provides:
The legislative authority of this state shall be vested in a senate and assembly, which shall
be designated The legislature of the State of Nevada.' * * *
For the reasons given I am of the opinion that the legislative substitute, Stats. 1923, pp.
389, 390, approved by the people at the election of 1922, was subject to amendment by the
legislature when it was amended by Stats. 1927, p. 126.
____________
50 Nev. 318, 318 (1927) Mack v. District Court
MACK v. DISTRICT COURT
No. 2761
August 5, 1927. 258 P. 289.
1. CertiorariStranger to Record.
Writ of certiorari will not be granted to a stranger to the record, if the matter to be reviewed is a
judgment or order of the court made or entered in a case litigated inter partes.
2. ReceiversMortgagee Should Intervene.
Mortgagee desiring foreclosure of property which has been placed in the hands of a receiver by the
court at the suit of some one other than the mortgagee should intervene and ask for foreclosure in the
court appointing the receiver, and certiorari proceeding is not proper remedy.
3. CertiorariAdequate Remedy.
Where the petitioner in certiorari proceeding has adequate remedy by intervention in receivership
proceedings with the right of appeal secured, the writ will not issue.
4. CertiorariReview of Statutes.
In certiorari proceeding to review an order appointing a receiver and enjoining creditors from suing
the receiver except by petition in the receivership cause, the constitutionality of general corporation law,
sec. 94, as amended by Stats. 1923, c. 22, sec. 1, authorizing court to appoint a receiver and to enjoin the
corporation from doing business, held not reviewable.
5. CertiorariJurisdiction.
Where it is not shown by petitioners on certiorari that the alleged want of jurisdiction or excess of
jurisdiction was raised in the receivership proceeding in the lower court, the decree and orders will not be
reviewed.
6. CertiorariDiscretion.
Errors or abuse of discretion in the lower court will not be considered on certiorari where it does not
appear that the court exceeded its jurisdiction.
7. CertiorariRequisites.
Under Rev. Laws, 5684, the three concurring requisites essential to the issuance of the writ of
certiorari are an excess of jurisdiction by the inferior tribunal, board, or officer, the absence of an
appeal, and the nonexistence of another plain, speedy, and adequate remedy.
8. CertiorariJurisdiction.
On certiorari to review order in receivership proceeding, where the lower court had jurisdiction to
make the order complained of, the writ will not issue and it is immaterial whether the order was
appealable or not.
Certiorari11 C. J. sec. 30, p. 103, n. 15; sec. 53, p. 111, n. 52; sec. 57, p. 113, n. 78; sec. 97, p. 134, n. 98;
p. 135, n. 1; sec. 343, p. 193, n. 52; sec. 346, p. 195, n. 73; sec. 351, p. 198, n. 18; sec. 354, p. 199, n. 23.
Receivers34 Cyc. p. 226, n. 30, 34; p. 421, n. 30.
Petition for certiorari by Mary J. Mack and another against the District Court of the
Second Judicial District of the State of Nevada, in and for the county of Washoe, Department
No. 2, to review an order appointing Carl S. Wheeler receiver of D. C. Wheeler, Inc., in the
suit of D. M. Wheeler against D. C. Wheeler, Inc., and to review an order denying petitioners'
motion for permission to maintain a separate action against Carl S. Wheeler as receiver.
Alternative writ issued, and defendant moves to quash. Case remitted to respondent court.
Green & Lunsford, for Petitioners:
Stats. 1923, 20, was only authority for appointment of receiver. Sole ground alleged was
that assets were in danger of waste. This is conclusion. Averments that by reason of facts
certain results followed, are conclusions. Fact showing casual connection should be alleged.
31 Cyc. 49, 60, 64 R. C. L. 440. Complaint praying for receiver which alleges no facts is not
sufficient. 34 Cyc. 111, 112; Baker v. Baker, 70 Atl. 421. Receiver cannot be appointed for
corporation where only effect would be to hinder collection of valid claim. 37 Atl. 201.
Court abused discretion, if any existed, by denying petitioners leave to make receiver party
to foreclosure. If receiver was only party defendant, it would have been proper to grant leave
to foreclose, mortgagees being preferred creditors and having lien unaffected by receivership,
and because Carl S. and Sarah Wheeler and Senseney were endorsers on note and proper
parties. As note was secured by mortgage, suit against endorsers would result in fatal
misjoinder, and suit against receiver could not be maintained without leave. Obligation will
be barred by statute and security lost if court refuses to permit suit against endorsers. State ex
rel. Nenzel v. Court, 49 Nev. 145, decided that lower court had no jurisdiction to appoint
receiver to take from sheriff property of corporation held under attachment by creditor. What
is difference between lien by voluntary mortgage, and attachment or judgment or execution?
Irving N.
Irving N. Bank v. Court, 47 Nev. 95; Alderson on Receivers, 716.
Leave to sue is usually granted of course, unless there is no foundation for claim. 23 R. C.
L. 125.
Receiver takes subject to lien and it must be enforced. Court may permit suit on lien
though property is in hands of receiver. 34 Cyc. 226.
Endorsers on note cannot be joined. In Re Therien, Bankrupt, Fed. Case No. 266 (Nev.).
Order appointing receiver is appealable, whether final or not. Civ. Pr. Act, sec. 387. But
that question is not involved. Corporation is not insolvent. Whole purpose is delay.
Appointment of receiver never terminates cause. Barber v. International Co., 51 Atl. 857. It is
interlocutory decree. Brachtdendorf v. Kehm, 72 Ill. App. 228.
Lack of remedy by appeal is as essential to release by prohibition as to review by
certiorari. Rev. Laws, 5709.
Order denying leave to sue is not final judgment an is not appealable, not having
determined any rights. New York, etc. Co. v. Ill. T. R. Co., 104 Fed. 710; Bellman v. Poe, 88
Atl. 131.
Order placing assets in custodia legis was interlocutory, not final. Not being final
judgment, order was not made after final judgment.
Price & Hawkins, for Respondent:
Petitioners, having recognized stockholders' suit, that receiver had been appointed, and
that receivership proceedings were had, submitted themselves and their claim of right to sue
receiver, and recognized jurisdiction of court to hear motion for leave to sue receiver by
entering appearance, etc. They believed court had jurisdiction until their claim was denied.
Certiorari does not lie. Rev. Laws, 5684, says when it shall issue. It shall not extend to
determining whether tribunal acted regularly. Rev. Laws, 5690; Kapp v. Court, 31 Nev. 444;
State v. Court, 46 Nev. 133.
Order of December 2, 1926, denying petitioners leave to sue receiver was final. They were
aggrieved and had right to appeal.
right to appeal. Tardy's Smith on Receivers, 21482149. They claim they were aggrieved;
they had to so claim or could not be heard. Odell v. H. Batterman Co., 223 Fed. 292, cited
with approval in Stokes v. Williams, 226 Fed. 148; American B. S. & F. Co. v. N. Y. Rys.
Co., 282 Fed. 523.
One party to record whose rights are injuriously affected may make himself party by
motion to set aside judgment; if that is denied, he may appeal. Order complained of being one
appointing receiver and granting injunction, was appealable. In Re Elliott, 77 P. 1109.
If order appointing receiver was void it binds no one; if valid, petitioners may not question
it. They may attack it directly in district court, or by motion to vacate, or by ignoring it until
some attempt is made to enforce it.
OPINION
This is a motion to quash an alternative writ of certiorari, issued out of this court upon the
petition of Mary J. Mack and George S. Green, first, to review an order appointing Carl. S.
Wheeler receiver of all the property and assets of D. C. Wheeler, Inc., a corporation, at the
suit of D. M. Wheeler v. D. C. Wheeler, Inc., and others. Second, to review an order denying
and overruling petitioners' motion for leave to institute, prosecute, and maintain a separate
action against Carl S. Wheeler as receiver for the foreclosure of petitioners' chattel mortgage
upon certain property in his hands as receiver of said corporation.
It is contended on the part of the petitioners that the court exceeded its jurisdiction in the
appointment of said receiver in two particulars: (1) That the complaint in said action does not
state facts sufficient to constitute a cause of action for the appointment of a receiver; (2) that
the statute from which the court derived its authority to appoint a receiver, if applicable to the
purported cause of action stated in the complaint of D. M. Wheeler, v. D. C. Wheeler, Inc.,
et al., is violative of the fourteenth amendment to the Constitution of the United States.
cause of action stated in the complaint of D. M. Wheeler, v. D. C. Wheeler, Inc., et al., is
violative of the fourteenth amendment to the Constitution of the United States.
1. It is contended in the first place that the petitioners were not parties to the receivership
proceeding, had no notice or knowledge thereof, and, not being in a position to appeal from
the order of appointment of the receiver, the writ should issue to review the question of the
jurisdiction of the court to appoint a receiver. It is a well-established rule that the writ will not
be granted to a stranger to the record if the matter to be reviewed is a judgment or order of the
court made or entered in a case litigated inter partes. 4 Cal. Juris. (Certiorari), sec. 51; 5 R. C.
L. 255.
2, 3. It is insisted that, the petitioners being owners and holders of a valid and subsisting
chattel mortgage on personal property in the hands of the receiver, perishable in its nature and
subject to waste and depreciation, the court exceeded its jurisdiction in refusing petitioners
leave to sue the receiver for the foreclosure of their mortgage. It is held that where mortgaged
property is placed in the hands of a receiver by the court at the suit and at the instance of
some one other than the mortgagee, if the mortgagee wants foreclosure, his procedure is to
intervene and ask for foreclosure in the court appointing the receiver. 1 Clark on Receivers,
sec. 720. In the case of Irving National Bank v. District Court, 47 Nev. 86, 217 P. 962, it is
held that the writ of prohibition should not issue where the petitioner has an adequate remedy
by intervention, with right to appeal secured; and we see no reason why the rule should not be
extended to the writ of certiorari, where the petitioner has an adequate remedy by
intervention, with right of appeal secured.
4. It appears that the court's order appointing Carl S. Wheeler, a director of D. C. Wheeler,
Inc., as its receiver, contains a blanket injunction against the corporation from exercising any
of its powers or from doing any business except by and through the receiver. Said order also
enjoins and restrains all creditors of the corporation and all persons from suing the receiver
except by petition in the receivership cause and with leave of court.
corporation and all persons from suing the receiver except by petition in the receivership
cause and with leave of court. The power of the court to appoint the receiver and to enjoin the
corporation from exercising any of its powers except through its receiver was derived from
section 94 of the general corporation law (Stats. 1903, p. 155), as amended by section 1 of
chapter 22 of the Statutes of 1923, p. 20. It is contended that the court exceeded its
jurisdiction in enjoining and restraining creditors of the corporation from suing the receiver.
The statute as amended provides, inter alia, as follows:
Whenever a corporation has willfully violated its charter, * * * or its assets are in danger
of waste through attachment, litigation or otherwise, * * * any holder or holders of one-tenth
of the issued and outstanding capital stock may apply to the district court, * * * for an order
dissolving the corporation and appointing a receiver to wind up its affairs. * * *
It is argued that if this statute authorizes the appointment of a receiver of a corporation
merely for the purpose of preventing creditors from exercising the remedies to which they are
entitled under the law for collection of debts, while a similar privilege or immunity is denied
to individuals, the law in so far as it authorizes the appointment of a receiver in such cases is
unconstitutional and void, because of its being in contravention of the fourteenth amendment
to the Constitution of the United States. We decline to follow the argument of counsel in
support of this proposition, for the reason that where the question of the constitutionality of a
statute is not jurisdictional, it will not be reviewed on certiorari. State v. Osburn, 24 Nev. 187,
51 P. 837; McConnell State Board of Equalization, 11 Idaho, 652, 83 P. 494; 11 Corpus Juris,
198.
5. We are also averse to reviewing the decree and orders in the receivership proceeding on
this writ, for the reason that there is nothing in the papers before us to show that these
questions now urged were called to the attention of the lower court. It is held that where
alleged want of jurisdiction or excess of jurisdiction was not called to the attention of the
court making the order, certiorari will not lie to annul such order or proceeding.
alleged want of jurisdiction or excess of jurisdiction was not called to the attention of the
court making the order, certiorari will not lie to annul such order or proceeding. Sammis v.
Marks (Utah), 252 P. 270.
6. It is contended that the court exceeded its jurisdiction in denying petitioners' motion to
sue its receiver. The judge in denying the motion may have erred, and may have abused his
discretion, but there is nothing in the record to show that he exceeded his jurisdiction or that
he departed from any express provision of the law in denying the motion. Therefore, under
the well-settled rule, its order is not reviewable on certiorari. In Re Wixom, 12 Nev. 219;
Phillips v. Welch, 12 Nev. 158; Poupart v. District Court, 34 Nev. 336, 123 P. 769.
7. It is argued that the order denying petitioners leave to sue the receiver is not an
appealable order, and, petitioners having no plain, speedy, and adequate remedy, the writ
should issue. Under our statute (section 5684, Rev. Laws), three concurring requisites are
essential to the issuance of the writ of certiorari: (1) An excess of jurisdiction by the inferior
tribunal, board, or officer exercising judicial functions; (2) the absence of an appeal; and (3)
where, in the judgment of the court, there is no plain, speedy, and adequate remedy. Under
like provisions contained in the code of civil procedure of California it is held that if any one
of the essentials mentioned is missing the writ will not lie. Noble v. Superior Court, 109 Cal.
523, 42 P. 155; Postal Telegraph Cable Co. v. Superior Court, 22 Cal. App. 770, 136 P. 538.
8. We are of opinion that the first concurring requisite to the issuance of the writ in this
case is missing, and therefore it is immaterial whether the order denying petitioners leave to
sue the receiver is an appealable order or not.
The alternative writ was improvidently issued, and the case should be remitted to the
respondent court.
Such is the order.
____________
50 Nev. 325, 325 (1927) First National Bank of Lovelock v. Rogers
FIRST NAT. BANK OF LOVELOCK v. ROGERS
No. 2766
September 6, 1927. 258 P. 1024.
1. Landlord and TenantLessee's Assignment of Sublessee's Future Rent Held Not Binding
on Latter, even though Assented to by Him, where Lessee Forfeited Lease.
Sublessee's contract with lessee as to rental or purchase of pasture and payment of money therefor
held not absolute, but conditional upon lessee's furnishing pasture, hence latter's forfeiture of lease made
his previous assignment to plaintiff of sublessee's future rent money not binding upon sublessee, although
sublessee had accepted lessee's order to pay future rent to plaintiff.
2. Landlord and TenantAssignee of Sublessee's Rent Payments Has No Greater Right to
Rent Than Lessee, Hence Could Not Collect Rents Accruing After Lease Forfeiture.
Where lease provided that lessee might sell pasture rights, lessee's assignment of future rent money
from sublessee or purchaser of pasture rights held not to entitle assignee to collect from such sublessee
rentals accruing after lessee's forfeiture of lease, assignee's right being no greater than his assignor's and
latter having no such right.
Assignments5 C. J. sec. 150, p. 963, n. 20, 23, 24; sec. 185, p. 985, n. 99 (new).
Landlord and Tenant36 C. J. sec. 1247, p. 380, n. 62 (new).
Appeal from Second Judicial District Court, Washoe County; Frank T. Dunn, Judge.
Action by the First National Bank of Lovelock against the H. Moffatt Company, Elizabeth
A. Rogers and another being substituted as defendants. Judgment for plaintiff, and defendants
appeal. Reversed. (Ducker, J., dissenting.)
Booth B. Goodman, for Appellants:
Assignee cannot be in better position than assignor. 2 A. & E. Enc. 1079. After legal
reentry of lessors, all rights of sublessee and his assignee were terminated. Lessors are the
only persons having right to profits. Assignments are of money not earned, but anticipated,
not of contract itself. Bank took with full knowledge of limited rights of assignor, and
defendants' right to reenter. Mortgagee of leasehold takes subject to all conditions of lease.
conditions of lease. Upon termination, mortgage so far as it affects reversion, falls with it. If
lessee has sublet, forfeiture terminates estate of sublessee. 24 Cyc. 987, 1359.
Thatcher & Woodburn, for Respondents:
Appellants urge agreement with Moffatt as to pasture was in nature of lease of it, or in
effect sublease from Reservation Company, and that they are entitled to proceeds. This is not
so. Lease is extremely broad, giving lessee possession with right to raise crops and to sell or
encumber large amount of property, crops, stock, etc. Reservation Company sold pasture
prior to any forfeiture, receiving part payment, balance payable monthly; benefits were
assigned to bank, agreeably to Moffatt. Paragraph 19 of this contract has been before various
courts and upheld. In Rogers v. Perez, Judge Farrington held Reservation Company had right
to sell live stock, except such as lessee was required to keep on ranch. His decision was
upheld by Circuit Court of Appeals of Ninth Circuit. Rogers v. Perez, 12 Fed. (2d ed.) 923.
That assignment was not of contract, but of money not yet earned, strengthened claim of
plaintiff. It shows absolute sale. It was purchase to become due that was assigned to bank.
Plaintiff's rights might have terminated with reentry if this were sublease, but it was not. It
was absolute sale of pasture. Suppose cattle had been sold and promissory note taken and
then assigned. Would not assignee then be entitled to recover? Would defendants have any
interest in it whatsoever?
OPINION
The First National Bank of Lovelock brought suit against H. Moffatt Company to recover
the sum of $5,501.76. Moffatt Company filed an answer admitting an indebtedness to some
one in the amount mentioned, and alleged that Elizabeth A.
and alleged that Elizabeth A. Rogers and Millie H. Jones also asserted claim to the money,
and asked leave to pay the money into court and that an order be entered substituting Mrs.
Rogers and Mrs. Jones in its stead. Simultaneously with the filing of said answer Mrs. Rogers
and Mrs. Jones filed a petition in intervention, claiming that the money was owing them by
Moffatt Company. Thereafter an order was made directing Moffatt Company to pay the
money into court and that Mrs. Rogers and Mrs. Jones be substituted as defendants in the
place of H. Moffatt Company.
Upon the trial judgment was entered in favor of the plaintiff. From such judgment and an
order denying a motion for a new trial, the defendants appealed. The parties will be referred
to as plaintiff and defendants, as in the trial court.
The facts which give rise to the questions of law in respect to the judgment are as follows:
On July 1, 1923, the defendants leased their ranches in Pershing County, comprising about
14,962 acres, together with the live stock, grain, products, and equipment thereon, to one
Walter W. Akers for a term of three years and five months from July 1, 1923, to and
including November 30, 1926, at a stated rent of $110,000, payable in advance in equal
monthly payments of $2,750 each. Upon the execution and delivery of the lease Akers formed
a corporation called the Reservation Land & Cattle Company to take over and operate the
lease. Upon the organization of the corporation Akers was made its president and manager,
and the lease, with the approval and consent of the lessors, was assigned to the Reservation
Company. The lease contains this provision:
Except as in this paragraph otherwise agreed, the lessee may, in his discretion, and in his
own name, sell and incumber or sell or incumber all hay, grain, and other crops and products
now upon said ranch or now growing thereon or hereafter and during said term harvested
thereon, and all marketable cattle and live stock now on said ranch or now on range or
belonging to said ranch or hereafter and during the said term raised thereon.
to said ranch or hereafter and during the said term raised thereon. * * * The lessee shall have
the right, in his discretion, to buy and sell pasture and to purchase additional live stock.
On the 31st day of March, 1924, the Reservation Company, through Akers, its president
and manager, while in possession of the leased premises, made to H. Moffatt Company the
following proposition, in writing:
Gentlemen: We hereby acknowledge receipt of the sum of $2,000, being advance
payment on account of pasture to be furnished you by the undersigned, and we do hereby
covenant and agree with you as follows:
(1) You are to have the exclusive right to not less than 1,350 acres of alfalfa, field pasture
on the Reservation ranch in Lovelock Valley, during the season of 1924, for your beef cattle,
excepting the alfalfa in section 10 and 15 from which we reserve the first cutting, maturing
before the grain now thereon is harvested, after which you are to have the additional stubble
and new alfalfa pasturage approximating 175 acres. * * *
(3) We agree to furnish, without additional charge, ample, suitable water for all cattle
which you put on pasture, either in ditches or in corrals convenient to the pasture, as you may
in your discretion elect and direct. * * *
(5) We agree to keep all fences in a good state of repair to prevent the escape of cattle.
(6) You are to pay us $2 per head, per month, for each head of live stock pastured,
excepting yearlings, and the price for yearlings is and will be $1.50 per head. We understand
that you estimate that you will have about 70 head of yearlings to pasture.
(7) All pasture shall be paid for monthly. The sum of $2,000, already received by us, and
herein acknowledged, shall be applied to payment, and no payment shall be due until the
pasture paid for in advance has been consumed.
You are not to place cattle in any field until notified to do so by me, but you are to have
the privilege of removing cattle from any field when, in your opinion, pasturage is
insufficient to fatten cattle, and shall in any event remove the cattle before the pasturage
is injured by too close pasturing."
removing cattle from any field when, in your opinion, pasturage is insufficient to fatten cattle,
and shall in any event remove the cattle before the pasturage is injured by too close
pasturing.
The Moffatt Company signed the following memorandum on the bottom of the paper:
Approved and accepted.
On May 3, 1924, the Reservation Company made the following order on the Moffatt
Company:
Please pay to the order of First National Bank of Lovelock all moneys due or to become
due under and by virtue of the within contract and agreement as in said agreement provided
until the full sum of $3,500, with interest thereon at the rate of 8 per cent per annum from the
date hereof, shall have been paid.
Accepted May 5, 1924.
On May 30, 1924, the Reservation Company was in default in the payment of the rentals
as provided in the contract of lease, and the lessors and Akers, on said date, met in a lawyer's
office in San Francisco, and the lessors then and there made demand upon Akers to pay the
rentals and comply with the terms and conditions of the lease or to surrender the lease. Akers
frankly admitted that neither he nor the Reservation Company could comply with the terms
and conditions of the lease. Notwithstanding this admission, the Reservation Company, on
May 31, 1924, made a further and additional order on the Moffatt Company, as follows:
H. Moffatt Company, San Francisco, Cal.After you have paid the full sum of $3,500,
with interest thereon at the rate of 8 per cent per annum from May 3, 1924, to the First
National Bank of Lovelock, Nev., in accordance with assignment executed by the Reservation
Land & Cattle Company on May 3, 1924, please pay to said First National Bank of Lovelock,
Nev., all moneys due or to come due under and by virtue of the within contract and agreement
as in said agreement provided until the full sum of $4,500, with interest at the rate of S per
cent per annum from the date hereof, shall have been paid."
the full sum of $4,500, with interest at the rate of 8 per cent per annum from the date hereof,
shall have been paid.
Accepted May 31, 1924.
On June 1, 1924, a representative of the lessors took possession of the leased premises and
property.
On June 18, 1924, by an instrument in writing duly executed by the parties and the
Reservation Company, the lease contract was canceled, annulled, and terminated.
The evidence shows that the lessors had no knowledge of the contract between the
Reservation Company and the Moffatt Company in respect to pasture nor of the orders and
acceptances above set out. The evidence tends to show that a controversy arose between the
Moffatt Company and the defendants as to the Moffatt Company's right to continue to pasture
the lands specified in the contract after the cancellation of the lease. This controversy was
settled by an injunction suit brought by the Moffatt Company against the defendants. The
proof shows that the defendants performed the services required under the contract, and that
the Moffatt Company continued to use the pasture upon the terms and conditions provided in
said contract until October 1, 1924, the end of the pasture season of 1924. The Moffatt
Company on said date became and was indebted for pasture in the sum of $5,501.76. On
October 25, 1924, the First National Bank of Lovelock commenced this action to recover of
the Moffatt Company said amount of $5,501.76, basing its claim thereto upon the allegations
of the complaint that on March 31, 1924, the Moffatt Company purchased of the Reservation
Company an exclusive right to not less than 1,350 acres of pasture on the Reservation
Ranch to be used during the season of 1924, subject to the reservations, conditions, and
payments which appear from the written agreement between said parties, attached to and
made a part of the complaint by proper reference, and that for the pasturing and feeding
of the Moffatt cattle on the land described in the contract there became due from the
Moffatt Company to the Reservation Company and its assignee, the plaintiff, the sum of
$5,501.76.
made a part of the complaint by proper reference, and that for the pasturing and feeding of the
Moffatt cattle on the land described in the contract there became due from the Moffatt
Company to the Reservation Company and its assignee, the plaintiff, the sum of $5,501.76.
The complaint sets out as a part thereof the orders on and their acceptances by the Moffatt
Company.
The trial court decided and found the allegations of the complaint to be true and rendered
judgment in favor of the plaintiff for said amount. From the judgment so rendered the
defendants appeal, claiming that the indebtedness accrued for pasture subsequent to the
forfeiture of the lease should have been adjudged to be paid to the defendants, and not to the
plaintiff.
1. The question presented for determination involves the proper construction and
interpretation of the documents above set forth. When we examine the contract between the
Reservation Company and the Moffatt Company as a whole, it is perfectly manifest that the
payments to be made by the Moffatt Company to the Reservation Company were only to be
made as the Moffatt Company became indebted for the pasture furnished, and, when the
Moffatt Company agreed to make the payments, it was upon the condition of the Reservation
Company fulfilling its contract to furnish pasture in accordance with the terms and conditions
of its agreement. In other words, reading the whole contract with all its provisions together,
the Moffat Company's contract to pay the money to become due for the pasture was
conditional, and not absolute. The Reservation Company's ability to fulfill its agreement was
dependent upon its keeping alive its lease, as well as upon the performance of its agreement
to furnish pasture for the Moffatt cattle for the season of 1924, to supply them with water, and
to perform the services required in connection with the use of the pasture. The Reservation
Company disabled itself from fulfilling its agreement when it forfeited its lease and
surrendered to the owners the possession of the land under pasture by the Moffatt Company
on June 1, 1924.
Company on June 1, 1924. Consequently the balance of the money to become due for pasture
furnished subsequent to that date could not legally be recovered in an action by the
Reservation Company against the Moffatt Company upon the termination of the contract.
2. It is contended on the part of the plaintiff that, under the provisions of the lease
contract, the Reservation Company had the right in its discretion to buy and sell pasture
during the term of the lease, and, the right to the use of the pasture for the season of 1924
having been purchased by the Moffatt Company, the money to become due therefor was an
assignable chose in action which entitled the plaintiff, as assignee, to the money to become
due upon the fulfillment of the contract by the Moffatt Company. We are of opinion that the
acceptance of the order of May 31, 1924, for the money to become due conferred no greater
or different claim in favor of the plaintiff than was originally possessed by assignor; and, in as
much as nothing was due the assignor upon the fulfillment of the contract by the Moffatt
Company, there was nothing due the plaintiff under the order of May 31, 1924. Martyn v.
Western Pac. Ry. Co., 21 Cal. App. 589, 132 P. 608. Conceding that the money to become
due for the pasture was an assignable chose in action, it is a general rule that an assignee
cannot maintain an action upon an assigned chose in action where his assignor did not have
such right. 3 Cal. Jur. sec. 41, p. 292; 5 C. J. sec. 2, p. 1012. Conformably to this rule we hold
that the court below erred in rendering any judgment in favor of the plaintiff. The judgment is
therefore reversed.
Ducker, J., dissenting:
In my opinion, there was an absolute sale of the pasture by the Reservation Company to
the Moffatt Company, which the lessee had the power to make under the express terms of the
lease.
____________
50 Nev. 333, 333 (1927) Atkins v. Atkins
ATKINS v. ATKINS
No. 2776
September 13, 1927. 259 P. 288.
1. DivorceSupport of Infant.
In action for divorce, award to wife of $100 monthly for support of infant child held within court's
discretion, though husband and wife had agreed that there should be no provision made by the court for
support of child, and wife testified that she wished none, under marriage and divorce act, sec. 24 (Rev.
Laws, sec. 5840), providing that court in granting a divorce shall make such provision for the children as
appears most expedient under the circumstances.
2. DivorceSupport of Infant.
In action for divorce brought by wife against husband, who answered but defaulted on trial, award to
wife of $100 monthly for the support of an infant child held within discretion of court, although
complaint did not ask for any such relief, under marriage and divorce act, sec. 24 (Rev. Laws, 5840),
providing that court, in granting divorce, shall make such provision for children as appears most
expedient.
3. DivorceBest Interest of Child.
In determining custody and support of child on entry of decree of divorce, it is not rights of parties
which are to be determined, but best interest of child is paramount consideration, under marriage and
divorce act, sec. 24 (Rev. Laws, 5840), providing that the court, in granting a divorce, shall make such
provision for children as appears most expedient.
4. DivorceAllowance Not Excessive.
In an action for divorce, where it appeared that husband was a practicing physician earning from
$5,000 to $7,000 yearly in his profession, and that the wife had no property or income and was required
by the decree to keep infant child at her expense for three months each year on request, award, under
marriage and divorce act, sec. 24 (Rev. Laws, 5840), of $100 monthly for the support of the infant child,
which was the only child of the marriage, held not excessive.
Divorce19 C. J. sec. 795, p. 343, n. 10, 11; sec. 815, p. 356, n. 20 (new); sec. 817, p. 356, n. 32; sec. 818,
p. 357, n. 34, 36 (new).
Action for divorce by Jennie Johnson Atkins against Frank M. Atkins. From a judgment in
favor of plaintiff, defendant appeals. Affirmed.
Ayres & Gardiner, for Appellant:
Plaintiff prayed for relief she desired, and was limited to prayer. Defendant submitted
himself to jurisdiction of court on express understanding that only certain relief would be
prayed for. Court had no right to force upon parties relief not asked, and which plaintiff
agreed she would not ask in consideration of defendant's appearing. Appellant cannot, and
does not wish to be absolved from support of his child, but does desire to support it in his
own way. One hundred dollars per month is excessive amount for support of child of tender
years. No evidence was offered that it was necessary.
Mitchell v. Mitchell, 28 Nev. 125, holds that where defendant was lulled into making
default by complaint which asked only that marriage be dissolved, that he be given control of
children, but did not ask for property or alimony, an order contrary to prayer, if permitted to
stand, would deprive him not only of custody of children but also of his opportunity to defend
by answer and trial before jury.
To induce defendant to come into court on assurance that only certain relief would be
asked and then to throw aside that assurance and say he was before court for all purposes is
unconscionable.
Harwood & Tippett, for Respondent:
Plaintiff did not ask, but court ordered, support of child. It was his duty to do so. Rev.
Laws, 5840. His authority cannot be abridged by agreement of parties. 2 Bishop, pars. 1161 to
1224; Schouler (6th ed.), par. 780, 796; 9 Cal. Jur., par. 144; Wilson v. Wilson, 45 Cal. 399;
Lewis v. Lewis, 163 P. 42.
Right of child to support cannot be barred by agreement of mother. Harlan v. Harlan, 98 P.
32.
Mitchell v. Mitchell, 28 Nev. 110, should have been reopened and defendant heard.
Evidence was that defendant showed unparalleled indifference to his child, had never
inquired about him, never showed any affection, never gave him any toys or presents; that
defendant received large income; that plaintiff was without any means of her own, and
dependent on her parents for their voluntary assistance.
presents; that defendant received large income; that plaintiff was without any means of her
own, and dependent on her parents for their voluntary assistance. Court exercised proper
discretion. Rev. Laws, 5840.
OPINION
This is an action for divorce. A decree was made in favor of plaintiff and against
defendant, granting a divorce and awarding plaintiff the custody and control of the infant
child, and the sum of $100 per month for support, education, and maintenance of said child
until the further order of the court. No motion for a new trial was made. Defendant appeals
from the judgment.
He contends that the trial court was without jurisdiction to make that part of the decree
awarding plaintiff the sum of $100 per month for the support, and asks that such provision be
stricken from the decree.
The complaint alleges that there is no community property belonging to the parties, but
that the defendant has an income of upwards of $7,000 per annum, derived from his practice
as a physician, and that plaintiff has no property and no income whatever. It is stated in the
complaint that plaintiff makes no request at this time for alimony for herself. In the prayer of
the complaint she asks to be awarded the sole care and custody of the minor child of the
parties, with the privilege to the defendant of seeing him at reasonable times, and that she
have such other and further relief in the premises as may be proper.
The defendant, through his attorneys, answered the complaint, admitting and denying
certain allegations thereof. He did not appear at the trial, and the divorce was granted on the
testimony of plaintiff. She testified that she was able to provide for the child with the help of
her father and mother, who were devoted to him and willing and anxious to care for him and
her, and that she asked for nothing for the support of herself or child.
She testified also to an agreement she had entered into with her husband which they wished to
be included in the decree, concerning the right of the husband to see the child at reasonable
and proper times and have the child with him for visits, walks, drives, and innocent and
harmless amusements, and her agreement with him, if he so requested, to send the child by a
nurse or other appropriate person to such reasonable place in the city of Atlanta, Ga., where
he lived, for such visits as he might request for the period of three months during the year.
She testified also that the defendant had made some statement that she had seen, in
communication to his counsel, about proposing to establish a trust fund, but said he would do
it voluntarily, and refused to have anything binding whatsoever.
The trial court entered the decree substantially in accordance with the agreement as to the
father's right to have reasonable access to the child, but disregarded the plaintiff's expressed
desire that no provision be made for its support and maintenance by the father, and the
statement of the attorney for plaintiff that such had been agreed to.
1, 2. It is insisted by counsel for defendant that, by reason of the facts that there was an
agreement that no provision be made by the court for the support of the child, that plaintiff
testified that she wished none, and that no such relief was asked for in the complaint, the
court was without jurisdiction or authority to make that part of the decree compelling
defendant to pay $100 per month for the support of the child.
The matter, under the facts of the case, was within the sound judicial discretion of the
court, and its ruling cannot therefore be disturbed. The duty of the court having jurisdiction of
a divorce case, to provide for the welfare of a child or children of the parties, is imposed by
statute. It is made a necessary incident to such jurisdiction. Section 24 of the act relating to
marriage and divorce (Rev. Laws, 5840), provides in part as follows:
The court, in granting a divorce, shall make such disposition of, and provision for, the
children, as shall appear most expedient under all the circumstances, and most for the
present comfort and future well-being of such children.
appear most expedient under all the circumstances, and most for the present comfort and
future well-being of such children.
3. The basis of the power conferred on the court by this statute to exercise a broad
discretion as to custody and support, lies in the reason that it is not the rights of the parties
which are to be determined, but the best interests of the child. This is universally held to be of
paramount consideration, and arises from state's interest in the training, education, and
general welfare of children. In Re Austin's Estate, 173 Mich. 47, 138 NW. 237, Ann. Cas.
1914D, 749; Thomas v. Thomas, 250 Ill. 354, 95 NE. 345, 35 L. R. A. (N. S.) 1158, Ann.
Cas. 1912B, 344; Silberschmidt v. Silberschmidt, 112 Ill. App. 58; Ex Parte Gordan, 95 Cal.
374, 30 P. 561; Stone v. Stone, 158 Ind. 628, 64 NE. 86; Logan v. Logan, 90 Ind. 107; Marks
v. Marks, 22 S. D. 453, 118 NW. 694; Houghton v. Houghton, 37 S. D. 184, 157 NW. 316;
Parker v. Parker, 4 Ohio Cir. Ct. Dec. 539; In Re Morgan, 117 Mo. 249, 21 SW. 1122, 22
SW. 913; Snover v. Snover, 10 N. J. Eq. 261; Lewis v. Lewis, 174 Cal. 336, 163 P. 42;
Nelson on Divorce and Separation, vol. II, pp. 934947; Bishop on Marriage and Divorce
and Separation, vol. II, sec. 1169.
In In Re Morgan, under a statute similar to ours, it was held that the trial court had power
to make orders concerning the custody of the children pendente lite, though the pleadings
contain no prayer relating thereto. The court said that
Jurisdiction of the parties to that suit carries with it the incidental power to make an
award as to the custody of the child. * * * A decree of divorce would necessarily affect the
welfare of the child, and it is the duty of the court to protect it, and hence it is that the court
can make a proper order concerning its future custody, though the petition contains no prayer
to that end.
Snover v. Snover, 10 N. J. Eq. page 261, is cited in the foregoing opinion, in which the
principle is sustained as to support as well as custody.
In In Re Austin's Estate, 173 Mich. 47, 138 NW. 237, Ann. Cas. 1914D, 749, it was
contended that the decree in the divorce case, in so far as it attempted to grant any allowance
for the support of the children, was void, because no claim therefor was set up in the bill of
complaint, and the underwriting on the subpena was not signed by the solicitor for the
complainant. It was urged that no facts were set up in the bill of complaint showing the ability
of the father to pay alimony, or the amount of his property. The court in its opinion quoted the
statute which is similar to ours, and held as follows:
In our opinion, a fair and practical construction of the above section authorizes the court
to make a just and proper order respecting the care, custody, and maintenance of the minor
children in a divorce proceeding, even though the pleadings may contain nothing in reference
to those subjects. We think that they are, by the statute, made incidents to the divorce; and
that, upon the making of a decree for a divorce, full power is given for the custody, care, and
maintenance of children.
The court further said:
We think the position of counsel for appellee, where they claim that in every divorce
case, whether mentioned in the pleadings or not, or whether or not there be any underwriting
on the subpena, or whether or not the parties agree, or attempt to agree, as to the minor
children, such children have become, by statutory enactment, the special wards of the court, is
supported by authority; and this matter is not only within its jurisdiction, but it becomes the
duty of the court to safeguard the interests of the minors against improvidence or carelessness
of one or both parents.
The decisions need not be further elaborated. The general rule deducible therefrom is fairly
stated by Mr. Nelson:
When it has been determined that a divorce will be rendered, it becomes necessary to
make some order concerning the custody and support of the children of the parties. * * * The
statutes confer a broad discretion upon the trial court to make such order as the circumstances
require, and in the exercise of this discretion the court is to consult the welfare of the child
in every case.
the court is to consult the welfare of the child in every case. The good of the child is
paramount to all other considerations, and the court may ignore the greater affection of one
party, the common-law right of the father, the agreements of the parties, and, if the
circumstances clearly require it, may award the custody to a third person. The agreement of
the parties is not binding upon the court, for it is not the rights of the parents which are to be
determined. Nelson on Divorce and Separation, vol. II, p. 934.
We are referred by defendant's counsel to the case of Mitchell v. Mitchell, 28 Nev. 110, 79
P. 50. In that case there was a default, and it was held that, under section 299 of the Civ. Prac.
Act (Rev. Laws, 5241), the trial court had no power to award the custody of the children to
plaintiff, who did not pray for such relief. The case is therefore not in point. There is an
answer in this case, and consequently, under the express terms of said section the court could
grant any relief consistent with the case made by the complaint and embraced within the
issue.
4. We perceive no abuse of discretion as to the amount of the allowance for the support of
the child. It appears that the defendant is a practicing physician, earning from $5,000 to
$7,000 per annum in his profession. He had theretofore contributed nothing to the support of
the child, which was the only child of the marriage. Plaintiff has no property or income of her
own, and is compelled, under the terms of the decree, to keep the child at her own expense for
three months in each year, at the city of Atlanta, Ga., should the husband request it.
____________
50 Nev. 340, 340 (1927) Holland v. Rock
HOLLAND v. ROCK
No. 2770
September 21, 1927. 259 P. 415.
1. SalesSubstantial Compliance.
Delivery of 600 sheep, although the contract called for about 650, of which 293 were yearlings,
although the contract called for about 400, but stated that the sale covered all of this particular class of
sheep owned by the seller, held a substantial compliance with the contract; about merely implying an
estimate of a particular lot or class and not a warranty of number.
2. SalesAbout, More or less.
The construction of the qualifying words about, more or less, or words of similar import,
appearing in contracts relative to number, depends upon whether the parties intended that the number or
quantity qualified was an estimate of a particular lot or quantity, the whole of which was to be delivered,
or intended the number stated as a warranty.
3. SalesBuyer's Refusal to Accept.
Where the buyer under a sheep sales contract refused to accept substantial delivery, the sellers were
entitled, in view of uniform sales act, sec. 60 (3 Rev. Laws, p. 3047), to recover any loss occasioned by
the breach.
4. SalesBuyer Waives Privilege.
Where sheep sales contract called for payment of a flat rate per head or a specified rate for each of
two classes, at purchaser's option and upon his classification, but latter did not exercise his option, held
upon question of seller's damages for nonacceptance of sheep, that buyer had waived the classification
privilege; hence was liable at the flat rate.
About1 C. J. sec. 7, p. 337, n. 31.
More41 C. J. p. 214, n. 13.
Sales35 Cyc. p. 99, n. 31; p. 207, n. 62, 63; p. 257, n. 31 (new); p. 592, n. 52 (new).
Action by J. F. Holland and another, copartners doing business as the Elko Live Stock
Commission Company, against Frank Rock, Gus Bennevent, and another, copartners doing
business as Rock & Bennevent. Judgment for plaintiffs, and named defendants appeal.
Judgment modified, and, as modified, affirmed.
E. J. L. Taber, for Appellants:
There was not substantial compliance. Contract was for about 650 ewes, of which 400
were to be yearlings, balance two-year old, up, unshorn, at $12 per head for sound, and
$7 for broken mouths, buyer's option.
for about 650 ewes, of which 400 were to be yearlings, balance two-year old, up, unshorn, at
$12 per head for sound, and $7 for broken mouths, buyer's option. Those tendered were 293
yearlings, worth not over $13; 33 old sound-mouthed ewes, $9; 268 old broken-mouth ewes,
$7.50; 15 yearling weathers, 24 lambs and 16 bucks.
Where contract to sell is by description, there is implied warranty that goods shall
correspond. Where seller offers less buyer may reject; but if he accepts knowing seller is not
going to perform, he must pay at contract rate. Uniform Sales Act, secs. 14, 44 (3 Rev. Laws,
p. 3036).
About, more or less, and such expressions in engagements to furnish goods of certain
quality to certain amount, provide only for accidental variations or slight differences. Brawley
v. United States, 96 U. S. 168; Moore v. United States, 196 U. S. 157; 23 R. C. L., sec. 242;
35 Cyc. 206.
On measure of damages, Call v. Linn, 228 P. 127, quotes with approval Dustan v.
McAndrew, 44 N. Y. 72, to effect that upon failure of purchaser to perform contract, vendor
may elect to hold property for purchaser and recover entire price; or to sell it after notice as
agent and recover difference; or to retain and recover difference between contract and market
prices. Respondents did not elect to do either. They sold, but without notice. Evidence
showed contract price and market price were equal. They suffered no damage.
H. U. Castle, for Respondents:
Contract was for 650 and 594 were offered. There was substantial compliance. Mosby v.
Smith, 180 SW. 49; Baird v. Johnson, 14 N. J. Law, 120; Waddell v. Phillips, 105 Atl. 771.
Notice is not necessary to validity of resale. Uniform Sales Act, sec. 60, subd. 4 (3 Rev.
Laws, p. 3097).
About, more or less, and similar terms preclude accuracy. They are not warranties, but
rough calculations of probable amount, in reference to which good faith is all that is required.
Bautovich v. G. S. Lumber Co.
Co. 56 So. 1026, quoting Brawley v. United States, 96 U. S. 168; Kenan v. Oil Co., 1 A. L. R.
1387.
Defendants cannot urge reasons for rejection at trial not given at time of tender. 13 C. J.
659. They did not count sheep, or elect to classify them; they thereby waived that privilege.
Norris v. Harris, 15 Cal. 226. When party makes specific objection, he waives any other. 13
C. J. 695; Ry. Co. v. McCarthy, 96 U. S. 267.
Pleadings do not allege fraud; it cannot be maintained. Gruber v. Baker, 20 Nev. 453.
Credibility of witnesses is for trial court. Nicora v. Cerveri, 49 Nev. 261, 244 P. 897.
If testimony is conflicting appellate court will not disturb findings. Dixon v. Miller, 43 Nev.
288.
OPINION
This is an action for breach of a contract. By the terms of the contract plaintiffs agreed to
sell and defendants agreed to buy about 650 head of ewe sheep at the price of $12 a head, or
$13.25 for all sound-mouthed ewes, and $7 for broken mouths, at buyer's option. Of the sheep
to be delivered, about 400 were to be yearlings, and the balance two years old and upwards,
unshorn. It was agreed that said sale covered all of this particular class of sheep owned by the
party of the first part.
The defendants refused to accept delivery. The sheep tendered were afterwards resold to
another party at less than the contract price. The trial court found that plaintiffs delivered 600
head of ewe sheep, and that this was a substantial compliance with the contract. Judgment
was rendered in favor of plaintiffs in the sum of $1,337.91. From the judgment and order
denying their motion for a new trial, the defendants Frank Rock and Gus Bennevent have
appealed. Defendant Jerry Rock was not served with process and did not appear.
1, 2. The main contention of defendants is that plaintiffs, in their tender of delivery, did
not substantially comply with the contract.
comply with the contract. Of the 600 head found by the trial court to have been tendered, 293
were yearling ewes, and the balance were sound-mouthed and broken-mouthed ewes over that
age. The evidence disclosed, and the trial court stated, both in the opinion and on motion for a
new trial, that 293 yearling ewes was the number of that age tendered. This was 107 less than
the number specified in the contract. The number of the older ewes tendered was 50 less than
the number specified in the contract. Was this an offer by plaintiffs to substantially perform
the contract? We think it was. The qualifying words about, more or less, or words of
similar import, appearing in contracts of this character, have received a definite construction
by the courts, depending upon whether it was intended that the number or quantity qualified
by such words was an estimate of a particular lot or quantity to be delivered, or a material part
of a contract. The rule is stated in Brawley v. United States, 96 U. S. 168, 24 L. Ed. 622, thus:
Where a contract is made to sell or furnish certain goods identified by reference to
independent circumstances, such as an entire lot deposited in a certain warehouse, or all that
may be manufactured by the vendor in a certain establishment, or that may be shipped by his
agent or correspondent in certain vessels, and the quantity is named with the qualification of
about,' or more or less,' or words of like import, the contract applies to the specific lot; and
the naming of the quantity is not regarded as in the nature of a warranty, but only as an
estimate of the probable amount, in reference to which good faith is all that is required of the
party making it. In such cases, the governing rule is somewhat analogous to that which is
applied in the description of lands, where natural boundaries and monuments control courses
and distances and estimates of quantity. But, when no such independent circumstances are
referred to, and the engagement is to furnish goods of a certain quality or character to a
certain amount, the quantity specified is material, and governs the contract.
the contract. The addition of the qualifying words, about,' more or less,' and the like, in such
cases, is only for the purpose of providing against accidental variations arising from slight
and unimportant excesses or deficiencies in number, measure, or weight.
The contract considered in the above case was for the delivery at the post of Ft. Pembina
880 cords of wood, more or less, as should be determined to be necessary by the post
commander for the regular supply, in accordance with army regulations, of the troops and
employees of the garrison of said post for the fiscal year beginning July 1, 1871. The court
said:
These are the determinative words of the contract, an the quantity designated, 880 cords,
is to be regarded merely as an estimate of what the officer making the contract at the time
supposed might be required.
The contract before us clearly falls into this class. The words, said sale covers all of this
particular class of sheep owned by the party of the first part, must be taken as the
determinative words of the contract, and the number of sheep designated is to be regarded
merely as an estimate of what the party of the first part supposed he owned of that class of
sheep. The contract was made with reference to this independent circumstance. The case of
Mosby v. Smith, 194 Mo. App. 20, 186 SW. 49, is in point. In that case the contract was for
the sale of about 900 head of two year old steers, and the court held that the delivery of 687 of
such steers was, under the circumstances, a substantial performance of the contract. In the
course of its opinion the court referred to the two classes of cases, distinguished in Brawley v.
U. S. as follows:
There are cases where such terms as about' and more or less,' when used in contracts to
qualify the stated quantity or number, are given the meaning of an approximation with the
stated quantity or number as a fixed basis for such approximation, and there are other cases
where such terms are treated as a mere estimate of an unknown and indefinite quantity or
number which the parties have agreed shall be the subject matter of the contract.
the contract. Each definition may be soundly applied according to the intention of the parties,
which must be ascertained from all the terms of the contract.
See, also, 23 R. C. L. sec. 178, p. 1354, and cases cited in note 5; 1 Beach on the Modern
Law of Contracts, sec. 245, p. 305.
There is nothing in the evidence to indicate that the word about, qualifying the stated
number of sheep, was understood by the parties in the sense of an approximation guaranty of
quantity; nor is there any evidence tending to show bad faith on the part of plaintiff in
delivering a less number than the stated amount.
3, 4. It is contended by defendants that the court erred in awarding plaintiff the sum of
$1,337.91 as damages. This contention is based upon the claim that there is no competent
evidence to authorize that amount or any sum whatsoever as damages. It appears from the
evidence that the plaintiffs on resale received the sum of $5,852.09 for the sheep, which the
court found to have been tendered for delivery in substantial performance of the contract. The
amount awarded is the difference between that amount and $7,200, which the court held
plaintiffs were entitled to receive for 600 at the contract price of $12 per head. We find no
substantial error in this. Defendants were in default for refusing to take delivery of the sheep
and pay the contract price, and plaintiffs exercised their right of resale. They were entitled to
recover from defendants any loss occasioned by the breach of the contract of sale. Section 60,
Uniform Sales Act (3 Rev. Laws, p. 3047). Defendants did not attempt to classify the sheep
and exercise their option under the contract to take sound-mouth ewes and broken-mouth
ewes at $13.25 and $7 per head, respectively, and consequently must be deemed to have
waived that privilege. However, the trial court erred in its computation in finding that 600
head of ewes were tendered for delivery. The evidence, without conflict, disclosed that 594
were so tendered, and the court mentions that number in its decision on motion for a new
trial. This makes six less actually tendered for delivery than found by the court.
than found by the court. Consequently the sum of $72 must be deducted from the amount of
the judgment.
The judgment, as modified to this extent, is affirmed
____________
50 Nev. 346, 346 (1927) Short v. Sinai
SHORT v. SINAI
No. 2752
September 22, 1927. 259 P. 417.
1. SuretyGuarantyObligations, Defenses.
Surety is bound equally with principal as original promisor and as a debtor from the beginning, and
cannot protect himself by indulgence of creditor or want of notice of default of principal, whereas
contract of guarantor is own separate contract in nature of warranty, and guarantor need only answer for
default of principal, and need not take notice of default, and is discharged to extent of damage by failure
to give him notice of default.
2. Frauds, Statute ofPartnershipSuretyGuaranty.
Obligation binding partner and another person to pay to the other partner a specified sum, conditioned
to be void if the first partner should pay partnership creditors, or in any manner release the second
partner's obligation to partnership creditors, held a contract of suretyship, rather than one of guaranty, and
hence not void for failure to express consideration as required by Rev. Laws, 1075.
Frauds, Statute of27 C. J. sec. 68, p. 167, n. 49.
Guaranty28 C. J. sec. 5, p. 890, n. 46; p. 891, n. 49, 51.
Surety32 Cyc. p. 21, n. 52.
Action by Charles Short against Charles Sinai and another. From a judgment in favor of
plaintiff and an order denying a new trial, defendants appeal. Affirmed.
Green & Lunsford, for Appellant:
Complaint does not state cause of action against Devincenzi. As pleaded, his promise is
collateral to answer for debt of another within meaning of subdivision 2, Rev. Laws, 1075.
He was not member of partnership and had no connection with primary obligation of Sinai.
Statute makes no distinction between surety and guarantor. No Nevada case can be found
holding contract of surety is not to answer for debt, etc., of another. 27 C.J. 132; 25 R. C.
L.
50 Nev. 346, 347 (1927) Short v. Sinai
of surety is not to answer for debt, etc., of another. 27 C. J. 132; 25 R. C. L. 482, Mankin v.
Jones, 60 SE. 248.
Sound rule is that promise may or may not be within statute, dependent upon whether it is
original or collateral promise to be established mainly by purpose of promisor, person to
whom credit was given, and existence of consideration beneficial to promisor. 27 C. J. 155,
Frauds, Statute of.
LeRoy F. Pike, for Respondent:
Appellant incorrectly assumes that bond is contract of guaranty and therefore within
statute of frauds, and being within statute, does not express sufficient consideration. Acting
on this false assumption he cites many authorities not in point.
When sponsor for another assumes primary liability, whether conditional or not in sense of
being immediate or postponed, he is surety; but when responsibility is secondary or collateral,
he is guarantor. 21 R. C. L. 949; 31 C. J. 414; Western S. Co. v. Kelly, 131 NW. 808.
Surety undertakes to pay if debtor does not; guarantor if he cannot. Principal and surety
enter into joint and several contract; guarantor contracts alone. Sykes v. Everett, 4 A. L. R.
758; Saint v. Wheeler Mfg. Co., 10 So. 539.
Promise to debtor to assume his debt, though enforcible by creditor, is not within statute.
Williston, sec. 478.
OPINION
This is an action whereby plaintiff seeks to recover against Charles Sinai, as principal, and
L. Devincenzi, as surety, upon an alleged undertaking of Sinai and Devincenzi to protect the
plaintiff against a certain partnership debt owed by him and Sinai as partners. The opening
brief of plaintiff contains a concise statement of the facts as shown by the pleadings, which,
for convenience, we will adopt, with such changes as may be necessary.
50 Nev. 346, 348 (1927) Short v. Sinai
convenience, we will adopt, with such changes as may be necessary.
It appears from the complaint that on or about the 15th day of February, 1922, the plaintiff,
Charles Short, and the defendant Charles Sinai were partners operating a clothing store in the
city of Reno, known as the Smart Shop. On or about the date last mentioned they dissolved
partnership, and the said Charles Sinai agreed to assume certain debts owing by the said
Charles Short and Charles Sinai, copartners, upon the consideration of the payment of certain
debts by said Charles Short. At the time of said dissolution of partnership, the said Charles
Sinai and the said L. Devincenzi entered into the following agreement, to wit:
Be it known that we, Charles Sinai and L. Devincenzi, both of the city of Reno, county of
Washoe, State of Nevada, as principal and surety respectively, are held and firmly bound unto
Charles Short, of the same place, in the sum of forty-five hundred ($4,500.00) current lawful
money of the United States of America, to be paid to the said Charles Short, his executors,
administrators, or assigns; for which payment well and truly to be paid, we bind ourselves,
our heirs, executors, and administrators, jointly and severally, firmly by these presents. Dated
the 15th day of February, 1922.
The condition of the above obligation is such that, if the above bounden Charles Sinai
shall well and truly pay, or cause to be paid, unto the following named creditors of the Smart
Shop, or in any manner release the above Charles Short from any obligation of debt to the
said following named creditors, then the above obligation to be void; otherwise, to remain in
full force and effect: [Here follows a list of creditors, 28 in number, and their respective
claims.] Signed and delivered in the presence of John S. Siani.
The foregoing instrument is signed and acknowledged before a notary public by Charles
Sinai and L. Devincenzi as of date February 15, 1922.
The complaint further alleges that, after making the bond, Charles Siani and L. Devincenzi
paid certain of the creditors named therein, but failed and refused to pay the claim of Alfred
Decker & Cohn, one of said creditors, whose claim amounted to $452.30, besides interest.
50 Nev. 346, 349 (1927) Short v. Sinai
pay the claim of Alfred Decker & Cohn, one of said creditors, whose claim amounted to
$452.30, besides interest. It is further alleged that said Alfred Decker & Cohn made a demand
on Charles Short for the payment of said claim, with threat of suit, and that Short, in turn,
demanded of Sinai and Devincenzi that they pay the claim, which they refused to do. It is
then alleged that Short, having no legal defense against the claim, was compelled to pay the
same, and that the plaintiff has been damaged in the sum of $452.30, besides interest at the
legal rate by the refusal of Sinai and Devincenzi to pay said claim. The defendant L.
Devincenzi filed a separate answer to the above complaint after his demurrer thereto had been
overruled. By the answer he denied that he executed the same undertaking specified in the
complaint. He admitted that at the request of Charles Sinai, and without any consideration
from either Sinai or Short, he had signed a paper for the accommodation of Charles Sinai, but
he alleged that the paper which he signed contained only the third paragraph of the alleged
bond and did not contain the names of any of the creditors against whose claims it was
alleged he was bound to protect Short. He further alleged that it did not contain the name, nor
mention the claim of Alfred Decker & Cohn, being the claim here sued on. Defendant
Devincenzi further denied that he ever acknowledged the alleged bond before a notary, as the
notarial certificate thereof purports to show. Devincenzi further alleged that after he had
signed the said paper it was materially altered without his knowledge or consent by adding
thereto the first two paragraphs and inserting therein the names of the said alleged creditors,
and the amounts purporting to be claimed by them, and he denied that he had ever, by said
paper or otherwise, promised to pay the claims of any of said creditors or of Alfred Decker &
Cohn. He further set up the alteration of the instrument as a separate and affirmative defense.
The case was tried before the court and on March 1, 1926, judgment was rendered in favor
of plaintiff and against the defendant Devincenzi for the sum of $452.30, from which
judgment and the order denying his motion for a new trial he has appealed.
50 Nev. 346, 350 (1927) Short v. Sinai
from which judgment and the order denying his motion for a new trial he has appealed. So far
as appears from the evidence Devincenzi received no consideration for his undertaking.
It is contended by the appellant that the alleged undertaking was an attempt to make him
liable to answer to Short for the debt, default, or miscarriage of Sinai in relation to the debts
named in the writing, and that said alleged undertaking is void as against Devincenzi for the
reason that it fails to express any consideration, as required by section 1075 of the Revised
Laws of Nevada.
1. The result of this appeal, as we view it, turns upon the question of whether or not the
obligation sued upon is one of guaranty or suretyship. If it is the former, the judgment must
be reversed; if the latter, it must be affirmed. As has been repeatedly pointed out, an
obligation of a guarantor possess some of the elements of suretyship and because of this fact
some courts have confused the two, yet there are certain well-defined lines of demarkation
between the two relationships.
We know of no statement which more clearly points out the distinction between the two
relationships than that given in McMillan v. Bull's Head Bank, 32 Ind. 11, 2 Am. Rep. 323,
and hence adopt it as our guide in this case. It reads:
The surety is bound with his principal as an original promisor; he is a debtor from the
beginning, and must see that the debt is paid, and is held ordinarily to know every default of
his principal, and cannot protect himself by the mere indulgence of the creditor, nor by want
of notice of the default of the principal, however such indulgence or want of notice may, in
fact, injure him. Being bound with the principal, his obligation to pay is equally absolute. On
the other hand, the contract of a guarantor is his own separate contract; it is in the nature of a
warranty by him that the thing guaranteed to be done by the principal shall be done, not
merely an engagement jointly with the principal, to do the thing. A guarantor, not being a
joint contractor with his principal, is not bound to do what the principal has contracted to do,
like a surety, but only to answer for the consequences of the default of the principal.
50 Nev. 346, 351 (1927) Short v. Sinai
consequences of the default of the principal. The original contract of the principal is not his
contract, and he is not bound to take notice of its nonperformance, and therefore the creditor
should give him notice; and it is universally held that, if the guarantor can prove that he has
suffered damage by the failure to give such notice, he will be discharged to the extent of the
damage thus sustained. It is not so with a surety.
Other authorities in line with the one quoted from are 2 Williston on Contracts, sec. 1211;
Rouse v. Wooten, 140 N. C. 557, 53 SE. 430, 111 Am. St. Rep. 875, 6 Ann. Cas. 280;
News-Times v. Doolittle, 51 Colo. 386, 118 P. 974; In Re Kelly's Estate, 173 Mich. 492, 139
NW. 250, Ann. Cas. 1914D, 848, 28 C. J. 890; 21 R. C. L. 949.
2. In the instant case Devincenzi is not bound to the creditors of Short and Sinai, but he is
bound with Sinai as an original promisor to the agreement made by Sinai with Short that he
(Sinai) would pay certain of the creditors of the partnership. He is a debtor from the
beginning, and could not protect himself by the mere indulgence of Short, nor because of
want of notice of the default of the principal, which he could have done if a mere guarantor.
This being true, it is not a case of a promise to answer for the debt, default, or miscarriage of
another, and hence the consideration need not be stated.
It is also urged that after Devincenzi executed the undertaking it was materially altered as
alleged in the complaint without his consent, and is therefore void. The trial court found that
Devincenzi entered into the undertaking in question.
We think that there is sufficient evidence to sustain this finding.
It is so ordered.
December 1, 1927.
Per Curiam:
Rehearing denied.
____________
50 Nev. 352, 352 (1927) Nenzel v. Rochester Silver Corporation
NENZEL v. ROCHESTER SILVER CORPORATION
No. 2756
October 5, 1927. 259 P. 632.
1. WatersWater Rights Subject to Unlawful Detainer.
Water rights are the subject of unlawful detainer, under Rev. Laws, 5588, since they are realty, as
the relation of landlord and tenant can exist as to them.
2. Appeal and ErrorSubstitution of Parties.
Where at the former trial of the cause the complaint was amended by substitution as to the parties
plaintiff, but the record of appeal from the second trial contained no order, objection, ruling, or exception
relative to such substitution of parties, error could not be predicated on the substitution.
3. Appeal and ErrorAmendment of Complaint.
Appellant's allegation of error in the trial court's permitting an amendment of the complaint as to
parties plaintiff at a former trial of the cause was disregarded, in view of Rev. Laws, 5066, as
supertechnical and without substantial justice.
4. Appeal and ErrorAmendment of Complaint.
Where the defense in a landlord's action to recover possession of certain water rights was that no
notice to quit had been given, though the complaint admitted alleged notice and the answer admitted the
allegations to be true, the right to amend on the second trial of the cause so as to deny notice was
properly denied.
5. Appeal and ErrorComplaint Held Sufficient.
In an action to recover possession of certain water and water rights, the complaint was held
sufficiently specific and certain, where first attacked on review.
Appeal and Error3 C. J. sec. 708, p.787, n. 77; 4 C. J. sec. 1654, p. 68, n. 75; sec. 3196, p. 1170, n. 34;
sec. 3274, p. 1224, n. 9.
Water Right40 Cyc. p. 541, n. 29a; p. 764, n. 98.
Appeal from Second Judicial District Court, Washoe County; L. O. Hawkins, Judge.
Action by Joseph F. Nenzel and others, trustees for the Mineral Production and Refining
Companies, against the Rochester Silver Corporation and another. From a judgment for
plaintiffs and an order denying a new trial, defendants appeal. Affirmed.
C. H. McIntosh and Jno. F. Kunz, for Appellants:
Lower court having found relation of landlord and tenant and privity of contract did not
exist could enter no judgment whatsoever. It specifically found defendants were entitled
to use of water under agreement between Nenzel and Nenzel Crown Point Mining Co.,
rights thereunder having been assigned to defendant, and payment made.
no judgment whatsoever. It specifically found defendants were entitled to use of water under
agreement between Nenzel and Nenzel Crown Point Mining Co., rights thereunder having
been assigned to defendant, and payment made. To be guilty of unlawful detainer, one must
be tenant. Rev. Laws, 5588, as amended, Stats. 1917, 31.
Relation of landlord and tenant as to incorporeal hereditament cannot exist. Remedy of
plaintiffs, if they had one, was in equity. Agreement was to furnish specific thing, water.
Lease could not have been entered into, and could not be pleaded. All water belongs to state.
When necessity for use does not exist, right to divert ceases. 3 Rev. Laws, p. 3225; Burgman
v. Kearney, 241 Fed. 896.
Substitution of parties plaintiff was error; they could not maintain action, and court erred
in denying defendant leave to amend answer after substitution. Notice must be given before
action in unlawful detainer can be commenced. Record shows original parties plaintiff were
not trustees when notice was served or at all. They therefore could not maintain action.
Right to water does not pass by deed where right rests on parol license or permission only.
40 Cyc. 757.
Wm. McKnight and M. B. Moore, for Respondents:
All authorities agree that a water right is real property. Kinney on Irrigation (2d ed.), 1328;
Wiel (3d ed.), 298.
Amendment of complaint was granted under express provisions of Rev. Laws, 5084.
Notice to pay rent or surrender possession, served upon defendants, is sufficient. Rev.
Laws, 5588, as amended, Stats. 1917, 31. Technical nicety is not required. Houghton v.
Potter, 23 N. J. Law (3 Zab.), 388.
Defendant, by litigating other matters involved without raising objection as to form or
sufficiency of notice, cannot now object that proper notice was not served. Wolfer v. Hurst,
47 Ore. 156.
OPINION
This action was instituted to recover the possession of certain property and for damages.
From a judgment in favor of the plaintiffs and an order denying a motion for a new trial the
defendant has appealed. Defendant Patterson having been a nominal party, who seems to have
played no part in the case, the parties will be referred to as plaintiffs and defendant, as in the
trial court.
The action was originally brought in the name of Joseph Nenzel, A. H. Cutter, and D. V.
Mahoney, as trustees for the Mineral Production and Refining Companies. Upon the first trial
the complaint was amended so as to substitute Ora Nenzel and Fred L. Miner in the place of
Cutter and Mahoney.
Paragraph 3 of the complaint alleges:
That ever since January 3, 1921, the plaintiffs have been, and now are, the owners and
entitled to the possession of that certain water and water right situate in South American
Canyon in NE 1/4 of NE 1/4 of section 22, township 38 north, range 34 east, Mt. Diablo base
and meridian, in Pershing (formerly Humboldt) County, Nevada, more particularly described
in permit No. 4259 issued by the state engineer of the State of Nevada, on the 8th day of May,
1917, and on file in said office, reference to which permit is hereby made for all the
particulars thereby shown, together with the pumping plant, pipe lines, tank, and other
equipment on the ground upon which the same is situate, together with the mining claims
known as and described as Cotton Tail' lode mining claims, used in the diversion of the
water described in said permit.
Paragraph 4 alleges that the plaintiff's acquired title to the property mentioned on January
3, 1921, and that the defendant at that time was in possession of said property pursuant to an
oral lease, at a monthly rental of $30, which expired at the time the plaintiffs became the
owners thereof.
The complaint further alleges that upon becoming the owners of said property the
plaintiffs notified the defendant that the monthly rental thereafter would be $200; that the
defendant had not paid the amount incurred under said monthly rental nor any part thereof
except the sum of $180; and that there was due and owing the sum of $3,420.
It is further averred that on July 18, 1922, demand in writing was made of the defendant by
the plaintiffs for the payment of said sum or that they surrender the possession to the
plaintiffs within three days, but that the defendant neglected to pay said rent or to deliver over
the possession of said premises. The complaint also charges that the defendant held over and
continued in possession of said premises without the permission of the plaintiffs.
The prayer of the complaint was for possession of the premises, for rent due in the sum of
$3,420, damages in the sum of $4,800, and that said damages and rent be trebled, and for
costs.
The defendant filed an answer to the complaint, wherein it denied the alleged ownership
and right of possession in the property described in the complaint. It admits that on the 3d day
of January, 1921, and prior thereto, it was in possession of the water and water right
described, but denied that it was in such possession pursuant to an oral agreement which
expired at the time the plaintiffs became such owners, or at all.
The answer further denies all indebtedness; denies that it was notified that the monthly
rental would be $200; admits a demand for the payment of rental or the surrender of the
property, admits that it neglected and refused to pay at the rate of $200 monthly or to
surrender the premises; denies all allegations of the complaint as to amount due, damages,
and unlawful holding over.
For affirmative defense to the complaint the answer alleges that on March 27, 1917,
Joseph Nenzel, one of the plaintiffs, claiming to be the owner of the water rights mentioned
in the complaint, entered into an agreement with the Nenzel Crown Point Company to
furnish it with the water and water right mentioned,
with the Nenzel Crown Point Company to furnish it with the water and water right
mentioned, for a period of five years, with the privilege of renewal for a like period, in
consideration of the payment of the monthly sum to cover the cost of operation, together with
interest on invested capital; that pursuant thereto the said Nenzel did begin and continued to
furnish water from said source to said Nenzel Crown Point Mining Company; that thereafter,
and on or about June 1, 1919, and while said Nenzel was furnishing water to said Nenzel
Crown Point Mining Company, the said company duly assigned to the defendant the
Rochester Silver Corporation its rights under said contract and agreement, and that thereafter
the said Nenzel ratified and approved said assignment; that thereafter the defendant company,
within the five-year period mentioned, did notify the said Nenzel in writing of its
determination to exercise its right of renewal for a five-year period of said contract, and
thereafter made various and sundry improvements necessary and incident to the enjoyment of
said contract, without objection on the part of any of the plaintiffs, though fully aware of such
expenditures being made.
The reply to the affirmative defense admits that Nenzel entered into an agreement with the
Nenzel Crown Point Mining Company as alleged for the use by it of the water in question,
but it denies the assignment thereof to the defendant company.
The court made specific findings to the effect that the plaintiffs were the owners of the
property described in the complaint and had been such owners since January 3, 1921, and
entitled to the rent since May 27, 1921; that the property in question was surrendered up to
the plaintiff on June 30, 1923, after this suit was brought; that theretofore the defendant had
held the property described in the complaint under lease at the rate of $30 per month; that
defendant was in arrears in payment of rent on July 18, 1922; that demand was made on that
date for the payment or the surrender of the property within three days; and that defendant did
not make such payment or offer to pay any part thereof, or urrender said property within
the time stateed.
make such payment or offer to pay any part thereof, or surrender said property within the time
stated.
The court found also against the contention that the rental had been raised to $200 per
month. The court further found that on July 18, 1922, the defendant owed as rental the sum of
$239.45; that not having paid said rental or surrendered the possession of said premises,
except as above stated, the defendant became guilty of the unlawful detainer of said property,
which continued until the 30th day of June, 1923, and the amount due as rental remaining
unpaid is the sum of $598.70. The court also found that the plaintiffs had sustained damages
in the sum of $1,785. Judgment was rendered in accordance with the findings in favor of
plaintiffs.
The first contention made by the appellant is that the relation of landlord and tenant did
not exist; hence there could be no unlawful detainer under section 5588 of Revised Laws,
1912. In support of the contention it is insisted that no tenancy was shown by the evidence
and that the court did not find that the relation of landlord and tenant existed and, secondly,
that no real estate was involved; hence under the law there could be no tenancy.
1. It is well settled that a water right is realty (2 Kinney on Irrigation [2d ed.], p. 1328;
Weil, Water Rights [2d ed.], p. 129; Long on Irrigation, p. 132; 40 Cyc. 540), and the court
found specifically that the defendant had held the property described in plaintiffs' complaint
under lease at the rate of $30 per month, and that on July 18, 1922, the said defendant was in
arrears of rent due, and that demand was made for the rent due the plaintiffs from the
defendant on July 18, 1922. * * *
Two different judges have found the facts favorable to the plaintiffs, and we will not
review the evidence, as it is voluminous, and the circumstances do not justify it.
2, 3. It is next contended that the court erred in permitting the plaintiffs to amend their
complaint so as to substitute Ora Nenzel and Fred L. Miner for A. H.
Cutter and D. V. Mahoney as parties plaintiff. If this was error it is not such an error as can be
availed of at this time. This case was tried prior to the trial which resulted in the judgment
now appealed from. It was during the former trial that the order complained of was made. 48
Nev. 41, 226 P. 1102. No such order, objection, ruling, or exception appearing in this record,
there is nothing before us to be considered upon this point. Furthermore, the point made is
supertechnical, without substantial justice, and hence must be disregarded. Section 5066 Rev.
Laws.
4. There is no merit in the contention that this action cannot be maintained for the reason
proper notice to quit was not given. The complaint alleges the giving of the notice and the
answer admits the allegation to be true. Upon the second trial of the case the defendant sought
to amend its answer so as to deny the allegation. We do not think the court erred in the
exercise of its discretion. The contention is purely a technical one and without real merit or
justice.
A point is sought to be made of the fact that the reply admits a certain allegation of the
affirmative defense of the answer, as we have pointed out. The allegation in question is
inconsistent with certain of the allegations of the complaint, and, strictly speaking, is nothing
more than a denial of such allegations. Bliss, Code Pl. (2d ed.), section 333; Goddard v.
Fulton, 21 Cal. 430; Alden v. Carpenter, 7 Colo. 93, 1 P. 904; Sylvis v. Sylvis, 11 Colo. 319,
17 P. 912; Cuenin v. Halbouer, 32 Colo. 51, 74 P. 885. In this situation, in view of the
findings, no prejudice resulted.
5. It is next asserted that the court erred in rendering judgment for damages in the sum of
$1,785. In support of this contention defendant relies upon the contention first made that no
tenancy existed, and other contentions which we have rejected, and apparently upon the
insufficiency of the complaint. As to the contentions already rejected we need say nothing.
The complaint states a cause of action, alleging damages in the sum of $4,800. We think the
complaint specific and certain enough when attacked in this respect for the first time in
this court.
certain enough when attacked in this respect for the first time in this court.
Other questions are discussed by the appellant, but, since they are disposed of by what we
have said or are based upon contentions as to facts contrary to the findings of the court, we
will not consider them, since all of the findings of the court are supported by substantial
evidence.
It appearing from a consideration of the entire record that the judgment is just, and that no
prejudicial error was committed, it is ordered that the judgment and order appealed from be
affirmed.
Sanders, C. J.: I concur in the order.
____________
50 Nev. 359, 359 (1927) Smart v. Valencia
SMART v. VALENCIA
No. 2771
December 1, 1927. 261 P. 655.
1. PaymentOverpayment Through Mistake of Fact May Be Recovered.
Money paid in excess of amount due through mutual mistake of fact may be recovered.
2. PartnershipIn Action to Recover Overpayment to Partnership, Nonjoinder of Two of
Five Partners Held Not Error, Defendants Being Jointly and Severally Liable.
In action against partnership to recover overpayment for sheep due to a mutual mistake in county,
nonjoinder of two of the five members of partnership held not to require reversal since the defendants
were both jointly and severally liable.
3. PartiesFailure to Raise Question of Defect of Parties Defendant by Demurrer or Answer
Waives Point.
A failure to raise the question of defect of parties defendant as for nonjoinder by demurrer or answer
constitutes waiver of such point, under Rev. Laws, 5045.
Contracts13 C. J. sec. 10, p. 245, n. 67.
Money Received41 C. J. sec. 2, p. 29, n. 7; sec. 18, p. 39, n. 55.
Partnership30 Cyc. p. 565, n. 39.
Payment30 Cyc. p. 1316, n. 14; p. 1320, n. 39.
Action by L. S. Smart against Conceso Valencia and others, copartners doing business
under the name and style of the Conceso Valencia Company. Judgment for plaintiff, and
defendants appeal. Affirmed.
Price & Hawkins, for Appellants:
Gravamen of action is alleged mutual mistake in counting sheep. Record is silent as to
reason. Fraud is necessarily excluded. 16 C. J. 66; 40 C. J. 1226-7; Stephens v. Murton, 6
Ore. 193.
Plaintiff must prove by clear, convincing proof existence of alleged mistake. Rawson v.
Hager, 48 Ia. 269; Moore v. Des Arts, 1 N. Y. 359.
That both parties were honestly mistaken is only ground that can be considered in present
case. Tufts v. Leonard, 27 Ia. 330; Ramsey v. Smith, 32 N. J. Eq., 28.
Plaintiff must prove clearly that situation is against conscience for defendants to keep
money, and that equity would afford relief. Goddard v. Town, 30 Conn. 394; Stratton v.
Rastall, 2 Term Rep. 370.
Evidence shows plaintiff was careless and grossly negligent. According to his story he
kept his own tally, read it, but two hours later paid out more than $25,000 without again
looking at it. Equity assists only the vigilant. Mere good faith, without diligence, will not
entitle one to relief in equity. Booney v. Stoughton, 13 NE. 833; Bibber v. Carville, 65 Atl.
303.
Where parties have equal knowledge, or means of obtaining it, and no surprise or
imposition exists, mistake, whether mutual or unilateral, lays no foundation for equitable
interference and is strictly damnum absque injuria. Belt v. Mehen, 2 Cal. 159; Deare v. Carr,
3 N. J. Eq., 513.
Evidence shows, if any liability, joint liability of partnership. Action is against three
named individuals, whom evidence shows to have been three of five partners. Judgment must
be joint against all liable. Keller v. Blasdell, 2 Nev. 413
v. Blasdell, 2 Nev. 413. Pleading and judgment are directed against three members of
partnership as individuals, and is not judgment against real obligor at all. Feder v. Epstein, 10
P. 785; Hass v. Cook, 41 So. 731.
Cantwell & Springmeyer, for Respondent:
Finding that there was mutual mistake was finding of fact. Question of mutual mistake is
one of fact, not of law. Tooley v. Chase, 37 P. 908.
Where there is substantial conflict in evidence, this court has repeatedly held finding of
trial court is conclusive upon appellate court. Springmeyer Land, etc. Co. v. Carson Valley,
etc., Project, 50 Nev. 80.
One who by mutual mistake of fact over pays may recover amount of overpayment. 3
Williston on Contracts, 2786. Many cases are cited in support, but none contrary. Hayes v.
Hayes, 25 NE. 600; Henn v. McGinnis, 165 NW. 406; Woodrup v. Claflin Co., 28 L. R. A.
(N. S.) 440; Lowe v. W. F. & Co., 96 P. 74; 11 L. R. A. 376.
Defendants intimate mistake was not mutual. Evidence shows checkers were both
mistaken. Authorities on unilateral mistakes have no bearing here.
Only matters to be considered under memorandum of errors are whether there is sufficient
evidence to sustain decision of trial courtnot the judgment; and whether court erred in
admitting or rejecting evidence. Whether findings are sufficient to support judgment, or
correspond to issues presented, as well as what issues are presented, can be considered only
on appeal from judgment, and not on appeal from order denying new trial. Schroeder v.
Pissis, 60 P. 758; Frank v. Charfield, 60 P. 525; Crescent Feather Co. v. United Upholsterers'
Union, 95 P. 871; Yoakum v. Hogan, 243 P. 21.
OPINION
Plaintiff brought this action to recover the sum of $1,100 which he alleged was paid to the
defendants through a mutual mistake.
through a mutual mistake. Judgment was for the plaintiff, and the defendants have appealed.
The parties will be referred to as in the trial court.
The defendants were the owners of a band of sheep in Jack's Valley, White Pine County.
They contracted to sell and deliver these sheep in the band under the age of two years to the
Henderson-Griswold Company, and the balance to the plaintiff at the price of $11 per
headthe sheep to be delivered to both purchasers on March 8, 1924. On the day mentioned
both purchasers appeared to take delivery of the sheep. The Henderson-Griswold sheep were
first delivered, and thereafter the remaining sheep were counted out to plaintiff. The sheep
were counted in both cases as they were driven through a hole in the corral fence. In counting
the sheep purchased by the plaintiff, one of the defendants and one Bell, representing the
plaintiff, counted as they came through the fence, and whenever a hundred had gone through
a tally mark was put downthe plaintiff and one of the defendants keeping tally. When the
count was completed, settlement was made between the plaintiff and the defendants on the
basis of 2,308 head.
The two bands of sheep were then turned over to Mr. Bell, who drove them in separate
bands to Currie station, a distance of about 90 miles, where they arrived about two weeks
later. Upon arrival at Currie the sheep purchased by plaintiff were again counted, and it was
found that there were 2,208 head in the band instead of 2,308. Thereupon plaintiff demanded
reimbursement in the sum of $1,100, which was refused. This suit was then instituted upon
the theory of mutual mistake in the count in Jack's Valley.
Counsel for defendants have favored us with brief matter of over 24,000 words, hence it is
evident that nothing has been overlooked.
In presenting defendants' case, principles of equity jurisprudence are extensively and
elaborately argued. As to the application of such principles in an appropriate case no doubt
exists. While certain equity principles are involved, this is not an equity case, but a suit at
law for money had and received.
involved, this is not an equity case, but a suit at law for money had and received.
1. It is a well-established rule of law, subject to certain qualifications not material here,
that money paid in excess of the amount due through a mutual mistake of fact may be
recovered. 30 Cyc. 1316.
The general rule was stated by this court at a very early date in Travis v. Epstein, et al., 1
Nev. 116.
Mr. Williston in his excellent work on Contracts, at volume 3, sec. 1574, states the rule in the
following language:
One who by error in computation, or by mistake of any fact, pays a real or supposed
creditor more than is his due, or pays a debt previously discharged, may recover the
overpayment; and generally speaking, money paid over under a mutual mistake of an
essential fact, or under a unilateral mistake as to such a fact where the defendant has parted
with nothing and the plaintiff has not received an expected return, may be recovered.
This rule is supported by an overwhelming weight of authority. In fact, so far as we know,
no court has enunciated a different rule. Nor do counsel for defendants contend for a different
rule, but, as we have stated, invoke certain rules applicable in equitable actions which do not
control in this case.
The case of Devine v. Edwards, reported in 87 Ill 177, is in point. That was a case growing
out of the sale and delivery of milk wherein it appeared that the seller had been delivering
milk in cans which were supposed to hold eight gallons, but which in fact contained less. The
court held that the failure of the purchaser of the milk to make sure that the cans contained
eight gallons was not such neglect as would preclude his recovery.
In Baltimore & Susq. R. R. Co. v. Faunce, 6 Gill (Md.), 68, 46 Am. Dec. 655, it was held
that money paid under a mistake of fact may be recovered back, although the party making
the payment had access to information which if followed up would have resulted in an
avoidance of the mistake.
The neglect of the plaintiff, if there was any, does not preclude his recovery. Thresher v.
Lopez, 52 Cal. App. 219, 198 P. 419; Simms v. Vick, 151 N. C. 78, 65 SE. 621, 24 L. R. A.
(N. S.) 517, 18 Ann. Cas. 669.
The case of Wheadon v. Olds, 20 Wend. (N. Y.) 174, is somewhat similar to this. In that
case there was a mistake in the counting of bushels of oats, the plaintiff paying for 300
bushels more than he received. The court held he could recover. Numerous authorities of a
similar nature might be cited.
The general principles of law applicable to this kind of cases is so well put in the case of
Brand & Co. v. Williams, 29 Minn. 238, 13 N. W. 42, that we quote from it:
An action for money had and received can be maintained whenever one man has received
or obtained the possession of the money of another, which he ought in equity and good
conscience to pay over. This proposition is elementary. There need be no privity between the
parties, or any promise to pay, other than that which results or is implied from one man's
having another's money, which he has no right conscientiously to retain. In such case the
equitable principle upon which the action is founded implies the contract and the promise.
When the fact is proved that he has the money, if he cannot show a legal or equitable ground
for retaining it the law creates the privity and the promise. 2 Chitty, Cont. 899 (11th Am.
Ed.); Mason v. Waite, 17 Mass. 560; Hall v. Marston [17 Mass. 575], Id. 574; Knapp v.
Hobbs, 50 N. H. 476; Eagle Bank v. Smith, 5 Conn. 71 [13 Am. Dec. 37]. It is not necessary
that the defendant should have accepted the money under an agreement to hold it for the
benefit of the plaintiff, or that the party from whom he received it intended it for the plaintiff's
benefit. Neither is it necessary that the money received by the defendant should have been an
exact and specific sum, belonging exclusively to plaintiff, and entirely separate and distinct
from any other moneys. We have found no case which lays down any such narrow rule.
such narrow rule. Allanson v. Atkinson, 1 M. & S. 583; Heart v. Chipman, 2 Aiken, 162.
To the same effect, 13 C. J. 244.
It is strenuously urged that the evidence does not support the judgment. We have read all
of the evidence with care and cannot say that the contention is well founded. The trial judge
was in a better position to pass upon this question than are we, and we would not be justified
in setting aside his conclusion on this point. To review the evidence would unduly lengthen
this opinion.
2. It is also contended that the judgment must be reversed for the reason that the
partnership sued is composed of five persons, whereas only three were joined as defendants.
While it was formerly the law that persons jointly liable must all be joined as defendants and
a joint judgment rendered against them, such is certainly not the law where they are both
jointly and severally liable, as in this instance. Conway v. District Court, 40 Nev. 395, 164 P.
1009; 21 Stand. Ency. Pr. 86.
3. Furthermore, if there is a defect of parties defendant, all objection thereto is waived
since the point was not raised by demurrer or answer. Rev. Laws, 5045; 15 Ency. Pl. & Pr.
756.
The further contention that the form of the judgment is not proper is not well founded as is
pointed out in the case last cited.
For the reasons given, the judgment and order are affirmed.
____________
50 Nev. 366, 366 (1927) Caldwell v. Wedekind Mines Co.
CALDWELL v. WEDEKIND MINES CO.
No. 2787
December 9, 1927. 261 P. 652.
1. Appeal and ErrorDefective Certificate.
Certificate attached to bill of exceptions, reading, I hereby certify that the above and foregoing bill
of exceptions' does truly and correctly set forth the pleadings, some evidence, some testimony, orders,
rulings, decisions, and judgment of the court, and the exceptions taken thereto by the plaintiff, and the
same is hereby settled and allowed, did not comply with requirements of Stats. 1923, c. 97, sec. 1, since
it did not contain any statement that bill of exceptions was correct, or that it contained substance of
proceedings relating to points involved, and hence bill of exceptions could not be considered on appeal.
2. Appeal and ErrorAppeal Statute Must Be Liberally Construed.
Stats. 1923, c. 97, sec. 2, prohibiting dismissal of appeal for any defect or informality in appellate
proceedings until appellant has been given an opportunity to amend or correct defect, should be
construed liberally with aim of conforming to evident spirit prompting legislation, but in doing so court
cannot ignore positive statutory requirements.
3. Appeal and ErrorAmendment of Bill of Exceptions.
Under Stats. 1923, c. 97, sec. 2, court could not order amendment of bill of exceptions after time
provided by section 1 had expired within which such bill of exceptions should have been settled, so as to
bring into it evidence not incorporated therein.
4. Appeal and ErrorDefective Certificate.
Where it did not appear from record that certificate attached to bill of exceptions could be amended
so as to conform to Stats. 1923, c. 97, sec. 1, proposed bill of exceptions must be stricken from record,
notwithstanding section 2 relating to dismissal of appeals.
Appeal and Error4 C. J. sec. 2169, p. 451, n. 15; p. 452, n. 19; sec. 2225, p. 484, n. 95; sec. 2242, p. 496,
n. 93; sec. 2267, p. 507, n. 8 (new).
Action by Gladys I. Caldwell, administratrix of the estate of Jonathan B. Dixon, deceased,
against the Wedekind Mines Company and others. From an order denying and overruling a
motion for a new trial, plaintiff appeals. Defendants move to strike the bill of exceptions and
to dismiss the appeal.
exceptions and to dismiss the appeal. Bill of exceptions stricken.
John S. Sinai, for Movant:
Certificate of judge to bill of exceptions that it contains some evidence and some
testimony is insufficient. It must be to effect that bill of exceptions is correct, contains
substance of proceedings relating to point or points involved and has been so settled and
allowed. Stats. 1923, 163; Capurro v. Christensen, 46 Nev. 249. Statutes on procedure must
be strictly construed. Hainlin v. Budge, 47 S. 825. Their enforcement is mandatory, not
technical. Rickey v. Douglas M. & P. Co., 45 Nev. 431.
Uncertified record is no record. If there is no bill of exceptions in record, order denying
motion for new trial cannot be reviewed on merits and appeal from such order will be
dismissed. Love v. Mt. Oddie U. M. Co., 43 Nev. 61.
Defect in certificate is so flagrant we refrain from citing authorities in support of other
grounds.
Wayne T. Wilson, for Appellant:
Respondent chooses to be technical. Stats. 1923, 163, provides that certificate shall be to
the effect that bill is correct, etc. Such certificate is attached. To the effect means to the
purpose, to the general intent. What does substance mean? Essential part, material
part, meaning. Substance has nothing to do with form. Hugh v. Miller, 52 NW. 38; Law v.
State, 38 S. 798.
Proceedings means, according to Cyc., all steps taken in prosecution or defense of
action. In Stats. 1923, 163, it was substituted for material evidence, used in Stats. 1915 (3
Rev. Laws, p. 3343).
It is not required that evidence be in bill of exceptions. Judge said it correctly sets forth
pleadings, orders, decisions, judgment of court and some evidence and testimony. Is not that
in effect the substance of the proceedings"?
proceedings? If objections are good, proper corrections may be made. No appeal shall be
dismissed for any irregularity * * *. Rev. Laws, 5328; Warren v. Wilson, 46 Nev. 275.
Missing papers may be supplied. Stats. 1923, 163, sec. 5. Water Co. v. Belmont Dev. Co., 48
Nev. 172.
Stats. 1923, 163, was passed for specific purpose of destroying effect of Capurro v.
Christensen. Surely it is no longer controlling.
Bill of exceptions was filed in supreme court on August 3, 1927, when trial judge had not
filed any findings, conclusions or judgment.
Judge is author of minutes and judgment and is competent to say if they are correct. No
clerk's certificate is required.
OPINION
This is a motion to strike the bill of exceptions made a part of the record herein, and to
dismiss the appeal taken from an order denying and overruling a motion for a new trial
entered in the above-entitled action.
The written motion is supported by the affidavit of counsel for respondents and the record
and files herein. Several causes are assigned as grounds for the motion to strike. The one
particularly stressed in argument is that there is no bill of exceptions settled and allowed by
the court or judge or by stipulation as required by section 1 of the Statutes of 1923, chapter
97, page 163, in the record. On the other hand, counsel for appellant insists that by fair
construction and reasonable intendment the certificate attached to the bill of exceptions
shows it to have been properly settled, allowed, certified, and made a part of the record, and
that the motion to strike should be denied.
The only way this court can determine whether a bill of exceptions is valid is to examine
the certificate required by section 1 of the Statutes of 1923 to be attached thereto.
attached thereto. It is held in Shirk v. Palmer, 48 Nev. 451, 232 P. 1083, 236 P. 678, 239 P.
1000, that a bill of exceptions is not entitled to consideration, where neither the stipulation
nor the certificate of the trial judge certifies to the matters required by section 1 of the
Statutes of 1923, and that bills of exceptions will be stricken when not settled conformably
thereto. Said section 1 provides, inter alia: At any time after the filing of the complaint and
not later than twenty (20) days after final judgment, or if a motion be made for a new trial,
then within twenty (20) days after the decision upon such motion, any party to an action or
special proceeding may serve and file a bill of exceptions to such judgment or any ruling,
decision, order, or action of the court, which bill of exceptions shall be settled and allowed by
the judge or court, or by stipulation of the parties, by attaching thereto or inserting therein a
certificate or stipulation to the effect that such bill of exceptions is correct, contains the
substance of the proceedings relating to the point or points involved and has been settled and
allowed, and when such bill of exceptions has been so settled and allowed it shall become a
part of the record in such action or special proceeding. * * *
The certificate attached to the bill of exceptions herein reads:
I hereby certify that the above and foregoing bill of exceptions' does truly and correctly
set forth the pleadings, some evidence, some testimony, orders, rulings, decisions, and
judgment of the court and the exceptions taken thereto by the plaintiff, and the same is hereby
settled and allowed.
1. It will be observed that the certificate does not contain any statement that the bill of
exceptions is correct, or that it contains the substance of the proceedings relating to the point
or points involved. On the contrary, it does appear from the certificate that it contains only
some of the evidence and some of the testimony. It is perfectly clear that the certificate does
not conform to the requirements of the statute, and, therefore, the bill of exceptions
cannot be considered on the appeal from the order denying appellant's motion for a new
trial.
not conform to the requirements of the statute, and, therefore, the bill of exceptions cannot be
considered on the appeal from the order denying appellant's motion for a new trial.
2, 3. It is insisted on the part of appellant that the case of Capurro v. Christensen, 46 Nev.
249, 209 P. 1045, relied on by counsel for respondents in support of the motion to strike, is
not in point, for the reason that since the rendition of the opinion in that case section 2 of the
act of 1923 has been enacted, and, if the certificate be deemed defective, the appellant is
entitled to have it amended or corrected by virtue of the provisions of said section. It was the
evident purpose of the provisions to prevent the dismissal of appeals, where it could be done
without material injury. Such being its obvious intent, we should construe the provisions
liberally, with the aim of conforming to the evident spirit prompting the legislation, but, in
our efforts to give the provisions a liberal construction, we cannot ignore positive statutory
requirements. We cannot order the amendment of a bill of exceptions after the time has
expired within which such bill of exceptions should have been settled so as to bring into it
evidence not incorporated therein. Shirk v. Palmer, supra; Water Co. v. Belmont
Development Co., 49 Nev. 172, 241 P. 1079.
4. It does not appear from the record that the certificate can be amended so as to conform
to the provisions of section 1 of the Statutes of 1923, and counsel for appellant has made no
showing to that effect. It is therefore ordered that the proposed bill of exceptions be stricken
from the record.
____________
50 Nev. 371, 371 (1927) Wilson v. Randolph
WILSON v. RANDOLPH
No. 2786
December 10, 1927. 261 P. 654.
1. EstoppelPartition, Pleading.
In action for partition, where plaintiffs claimed by assignment under decree of distribution from one
whom they, as attorneys, had defended against charge of murder, demurrer to defendant's affirmative
defense that plaintiffs, by interposing plea of insanity on behalf of client, had estopped themselves from
asserting validity of the assignment, was properly sustained, since alleged defense failed to show that
defendant was affected, or had acted in reliance on such conduct or representation of plaintiffs to his
prejudice.
2. Executors and AdministratorsPartition, Pleading.
In action for partition, where plaintiffs claim by assignment through decree of distribution by probate
court, demurrer to affirmative defenses that insane man cannot make valid contract and that murderer
cannot inherit his victim's estate was properly sustained, since such defenses constituted collateral attack
on decree of distribution, which cannot be made; decree being conclusive when no appeal is taken, and it
does not appear that court lacked jurisdiction.
3. Descent and DistributionMurderer May Inherit from Victim.
In action for partition, defendant's allegations that plaintiffs' right was based on purchase, from client
convicted of murdering mother, of interest in estate which client inherited from mother on her death, if
true, held not to defeat plaintiffs' right, since right of inheritance is civil right, and, under Rev. Laws,
6278, providing that conviction of crime shall not work forfeiture of property or interest therein, client's
interest was subject to conveyance within 6072, 6080.
Descent and Distribution18 C. J. sec. 5, p. 808, n. 16; sec. 77, p. 843, n. 63.
Estoppel21 C. J. sec. 261, p. 1249, n. 62.
Executors and Administrators24 C. J. sec. 1400, p. 528, n. 99; sec. 1402, p. 531, n. 20; sec. 1404, p. 532,
n. 29.
Action by Wayne T. Wilson and L. B. Fowler against Jewett Randolph for partition.
Judgment for plaintiffs, and defendant appeals. Affirmed.
A. Grant Miller, for Appellant:
Trial court erred in sustaining demurrer and granting motion to strike, whereby appellant's
separate, affirmative defense was taken away from him and he was left without any defense
whatever. His denials in answer were without value in face of decree of distribution, since his
affirmative defense was out of case.
Answer may contain statement in ordinary and concise language of any new matter
constituting defense of counterclaim. Rev. Laws, 5046.
In partition, respective claims may be put in issue; counterclaim filed for that purpose is
proper. Ferris v. Reed, 87 Ind. 123. Cross bill is not necessary where dismissal is sought.
German v. Machin, 6 Paige, 288.
Paragraph in answer in partition suit setting up claim for title to whole land is good on
demurrer. Schafer v. Schafer, 68 Ind. 374. In instant case appellant denied respondents' claim
in toto and then, in separate defense set up equitable grounds which, if true, would defeat
their claim in toto. Appellant had right to have such defense determined. Law and equity may
be administered in same action. Const. art. vi, sec. 14; Lucich v. Medin, 3 Nev. 99.
Defendant may set forth by answer as many defenses as he has. Rev. Laws, 5050. It was
incumbent on him only to show wherein respondents' title was defective. They must show
partition; they are entitled to contest plaintiff's claim. 20 R. C. L. 729.
Plaintiff must depend on strength of his own title. If appellant had made good on trial as to
his separate defense, no partition could have been made. He was entitled to have it tried.
Probate court is one of limited jurisdiction. It did not have right to determine equitable title
of Jewett Randolph to whole of estate. This is not collateral attack on judgment. It is
affirmative defense involving same subject matter.
Rose v. Treadway, 4 Nev. 455, does not state all the law.
the law. It is right as far as it goes, but if defendant seeks only dismissal he need not plead
cross complaint at all.
Wilson and Fowler, pro se:
Complaint alleged that real estate involved in partition suit was distributed to plaintiffs and
defendant by probate court. Defendant did not deny this. There was no appeal from decree of
distribution.
Defendant undertook to set up affirmative defense by alleging facts in criminal case
foreign to this action. So-called affirmative defense was attempt to plead cross complaint and
should have been pleaded fully. Rose v. Treadway, 4 Nev. 455. Any complaint or cross
complaint should have major and minor premises from which conclusion of law can be
drawn. Defendant plead John Randolph is lawful son of Lily Randolph. This is major
premise. Then, that Lily Randolph is deceased, as minor premise. Statute of descent, Rev.
Laws, 3370, provides if there be no surviving husband or kindred except one child, all
property shall go to that child. If there be more than one child, estate shall be divided equally
between them. This statute applied to major and minor premises compels court to draw but
one conclusion-that John Randolph did inherit from his mother. No other conclusion is
possible.
Trial court did not strike affirmative defense; it denied motion to strike. Defendant had
right to amend answer but did not do so. He went to trial on general issue and abandoned
so-called affirmative defense.
The insufficient affirmative defense was collateral attack upon judgment and decree of
probate court, which is not permitted. 34 C. J. 518. Collateral attack can be sustained only
when judgment is absolutely void for want of jurisdiction, and not when court erred in some
ruling. Daly v. Lahontan Mines Co., 39 Nev. 21; 34 C. J. 511.
OPINION
This action was brought for partition of certain lots of land situated in Reno, Nevada,
alleged to be owned and possessed by the parties as tenants in common, or for the sale of the
common property and a division of the proceeds between the parties according to their rights.
It is alleged in the complaint that plaintiffs have an estate by purchase in said property to
the extent of an undivided one-fourth each, in the fee thereof, and that the defendant has an
estate of inheritance to the extent of an undivided one-half interest in the fee thereof. It is also
alleged that said real estate was a part of the estate of Lily Randolph (sometimes known as
Lou Randolph); that said estate was closed on the 27th day of August, 1926, by a decree of
distribution and by such decree distributed to the parties to this action in the proportion of
interest stated; that the property is left without any proper management; and that said property
consists of a rooming house, and, without proper management the interest of plaintiffs, as
well as defendant, is in danger of being lost or materially injured. The allegations of
ownership by the plaintiffs, and possession as tenants in common of an undivided one-half
interest in the property, and the purchase thereof, are denied in the answer. It is alleged
therein, as constituting affirmative defenses, that one John Randolph, who is the lawful son of
said Lily Randolph, deceased, killed his mother on the 30th day of June, 1925; that he was
thereafter convicted of murder of the first degree for such offense and sentenced to be put to
death; that the Supreme Court of the State of Nevada affirmed said conviction and sentence,
and thereafter the Nevada state board of pardons commuted the sentence of death to life
imprisonment; and that the said John Randolph is now confined in the Nevada state prison for
life. It is also set out that plaintiffs, as attorneys for said John H.
H. Randolph, conducted his defense upon his trial for the murder of said Lily Randolph on
the ground that he was an insane person and asserted and maintained that he was an insane
man, and, by reason thereof, are now estopped from setting up and maintaining the alleged
assignment from him to them, and that the said assignment is null and void for the reason that
an insane man cannot make a valid contract. It is further alleged that said John H. Randolph is
not entitled to inherit any part of the estate of Lily Randolph, deceased, for the reason that he
murdered said deceased, and a murderer cannot inherit his victim's estate.
A demurrer was interposed to the affirmative defenses on the ground that they did not state
facts sufficient to constitute a defense, and on the further ground of uncertainty. The demurrer
was sustained on the former ground and overruled on the latter. A trial was had and judgment
rendered in favor of plaintiffs, wherein it was adjudged that plaintiffs were the owners and
seized in fee of an undivided one-half interest in said property, and that defendant was the
owner and seized in fee of an undivided one-half interest therein, and that a referee be
appointed with full power to sell the property at public auction and distribute the proceeds
under the direction of the court as provided by law. A motion for a new trial was made and
denied. From the order denying the motion for a new trial, and from the judgment, this appeal
is taken.
1. Defendant insists that the matter set out in his affirmative defenses, to which demurrer
was sustained for insufficiency of facts, constituted equitable defenses, which he had a right
to plead, and which, if proven, would defeat plaintiffs' claim of title to an undivided one-half
interest in the property, and right to partition.
Plaintiffs claim title through the decree of distribution, and that their right to such
distributive share of the estate of Lily Randolph was acquired by purchase. That the real
estate in question was, by the decree of distribution made by the probate court, distributed to
the parties as alleged, is not denied in the answer.
the parties as alleged, is not denied in the answer. We are of the opinion that estoppel to claim
title under this decree was not sufficiently alleged in the answer, for the reason that it does not
appear therefrom how defendant was in any way affected by plaintiffs' defense of John H.
Randolph in the trial for murder on the ground of insanity, or their assertion that he was an
insane man. It is not alleged in the attempted plea of estoppel that defendant acted in reliance
on such conduct or representations of plaintiffs to his prejudice. The demurrer was therefore
properly sustained as to the plea of estoppel.
2. The other matters set out as affirmative defenses, namely, that an insane person cannot
make a valid contract, and that a murderer cannot inherit his victim's estate, clearly constitute
a collateral attack upon the decree of distribution, which cannot be made if the probate court
had jurisdiction to make such decree. 11 R. C. L. pp. 184, 185-380; 24 C. J. 532. The decree
of the probate court adjudging to the distributees their respective shares, is as conclusive as a
decree in chancery, or the judgment of a court at law. 11 R. C. L. p. 184.
The same presumptions are to be indulged in its favor as must be accorded to the judgment
of all courts of record. No appeal was taken from the decree of distribution and it does not
appear wherein the court was lacking in jurisdiction.
3. Plaintiffs' right to take under the decree an undivided one-half interest in the estate of
Lily Randolph is based upon purchase from her son, John H. Randolph. The court was
authorized to find that he inherited an undivided one-half interest in the estate of his mother,
even though the facts were true, as alleged in the answer, that he killed her and was
subsequently convicted of her murder and sentenced to death. The right of inheritance is a
civil right existing by virtue of law, and the legislature has not provided that any of those
facts shall deprive one of such right of inheritance. He therefore became vested with his
interest in the estate immediately upon the death of his mother, and was not divested of
that interest by his subsequent conviction of murder.
interest in the estate immediately upon the death of his mother, and was not divested of that
interest by his subsequent conviction of murder. Section 6278, Rev. Laws. This section
provides, in part, as follows:
A conviction of crime shall not work a forfeiture of any property, real or personal, or of
any right or interest therein.
As John Randolph's interest in the estate of his mother was the subject of conveyance
(sections 6072, 6080, Rev. laws), the court had authority on final distribution to distribute it
to plaintiffs by reason of such conveyance.
The question of the latter's capacity to convey must be presumed to have been duly
adjudicated by the decree of distribution.
____________
50 Nev. 377, 377 (1928) Smith v. Southern Pacific Co.
SMITH v. SOUTHERN PACIFIC CO.
No. 2797
January 7, 1928. 262 P. 935.
1. Appeal and ErrorTimely Appeal.
Appeal from order denying defendant's motion for new trial was timely, where it was taken within 60
days after entry of order denying motion, though order was made more than a year after entry of final
judgment in case, since there are two separate rights of appeal under Rev. Laws, 5329, as amended by
Stats. 1913, c. 91, providing in one subsection that appeal may be taken from order granting or refusing a
new trial within 60 days after order is made and entered in minutes of court, and in another subsection
that appeal may be taken from final judgment within six months after rendition of judgment.
2. StatutesStare Decisis.
While supreme court is not bound, by construction of Rev. Laws, 5329, as amended by Stats. 1913, c.
91, limiting time for taking appeals, which was uniformly adopted by bench and bar since adoption of
statute in substantially same form by Stats. 1869, c. 112, it will not overthrow such construction unless
clearly contrary to legislative intent.
3. StatutesDoubtful Statute Construed.
Rev. Laws, 5329, as amended by Stats. 1913, c. 91, limiting time for taking appeals, if
doubtful in meaning, must be given that construction which would be least likely to
produce mischief.
time for taking appeals, if doubtful in meaning, must be given that construction which would be least
likely to produce mischief.
Statutes36 Cyc. p. 1112, n. 72; p. 1140, n. 62.
Action by Beatrice F. Smith, as administratrix of the estate of Newton N. Smith, deceased,
against the Southern Pacific Company. From an order denying defendant's motion for a new
trial, defendant appeals. On motion to dismiss the appeal. Motion denied.
Edw. C. Short, Geo. S. Green and A. Grant Miller, for Movant:
Since 1869 settled law has been that appeal should be taken, first within one year, and
latterly within six months from judgment. Rev. Laws, 5328, does not purport to change this,
and very provision that appeal from order denying motion for new trial shall be brought
within sixty days shows purpose was to bring such appeal within the six months period.
Reasoning in cases decided in states having different statutes shows correctness of this
proposition. Pendency of motion for new trial does not extend period of appeal. Gohl v.
Bechteld, 163 NW. 725; Board v. Linker, 187 NW. 635; Erwin v. Seeman, 176 NW. 652.
Motion for new trial must be determined before appeal is taken. Gill v. Goldfield Con.
Mines Co., 43 Nev. 1. Rev. Laws, 5328, so providing, had never been repealed.
Nowhere is appeal allowed to stand if taken too late. Bayles on New Trials and Appeals
(1923 ed.), 329; Cox v. Am. Exp. Co., 124 NW. 202; Sharp v. Brown, 51 NW. 1030; Hahn v.
Bank, 114 P. 1134; Ward v. Silver Peak Co., 37 Nev. 470.
Points now presented were not considered in Nelson v. Smith, 42 Nev. 302. Judgment is
final when entered.
Judgment is final when entered. Central Trust Co. v. Holmes Co., 30 Nev. 437.
In Leeker v. Leeker (Ariz.), 202 P. 397, it was said that if court holds motion to modify or
vacate judgment for more than six months before passing upon it, he does what statutes
expressly forbid. Court loses jurisdiction to pass upon motion after time for appeal has
expired. Gallagher v. Bank, 81 NW. 1057.
Brown & Belford, for Appellant:
Proceedings on motion for new trial are not in direct line of judgment, but are independent
and collateral. Kerr C. C. P. (1st ed.) sec. 939; Rev. Laws, 5329; Brooks v. Nickel Syndicate,
24 Nev. 311; People v. Bank, 112 P. 866.
In California, judgment does not become final until time of appeal therefrom has expired.
Water's Estate, 185 P. 951.
In Nevada there has always been right of independent appeal from order granting or
refusing motion for new trial, and time thereof has never been limited by time for appeal from
judgment. Comp. Laws, 1391; Cutting's Comp. Laws, 3425. Bench and bar have always
recognized that appeal from order on motion for new trial within sixty days after entry of
order is in time, even though after time for appeal from judgment. Nelson v. Smith, 42 Nev.
302; Kondas v. Bank, 50 Nev. 181.
Rev. Laws, 5328, merely adds to grounds upon which motion for new trial must be made.
Only limitation upon right to appeal from order on motion for new trial is that if appeal is
taken from judgment without first moving for new trial, right thereto is waived. This section
must be construed with section 5329, as well as long established practice and implied
contemporaneous construction.
Party may appeal from judgment or order on motion for new trial, or both, by one notice.
Latter is entirely independent of former.
OPINION
1. This case is before the court on the motion of the plaintiff to dismiss the appeal which
was taken from the order denying the defendant's motion for a new trial. The ground of the
motion is that the appeal was not taken within six months from the rendition of the judgment
in the case. It is conceded that the appeal was taken within 60 days from the entry of the order
appealed from.
The time within which an appeal may be taken is fixed by section 5329, Rev. Laws
(section 387, Civ. Code), as amended by chapter 91, Stats. 1913, which reads:
An appeal may be taken:
1. From a final judgment in an action or special proceeding commenced in the court in
which the judgment is rendered, within six months after the rendition of the judgment.
2. From an order granting or refusing a new trial, or granting or refusing to grant or
dissolving or refusing to dissolve an injunction, or appointing or refusing to appoint a
receiver, or dissolving or refusing to dissolve an attachment, or changing or refusing to
change the place of trial, and from any special order made after final judgment, within sixty
days after the order is made and entered in the minutes of the court.
3. * * *
4. * * *
The ground for the motion is:
That the final judgment in said action was rendered on the 3d day of May, 1926; that the
said appeal was not taken until the 1st day of September, 1927; that appellant did not make its
motion for a new trial of said action in said Second judicial district court of the State of
Nevada in and for the county of Washoe until the 26th day of May, 1927; and that said appeal
was not taken within the time allowed by law.
The order denying the motion for a new trial was entered July 6, 1927, and the appeal was
taken September 1, 1927.
Counsel for movant state their contention as follows:
The point which we desire to present to the court in this motion is that the pendency of
the motion for a new trial does not extend the period of appeal, and that the time for appeal to
bring any case to this court in this state is limited to six months, and that the motion for a new
trial provided by a later act must be heard and determined within the six months' period in
order to give them an appeal at all.
Counsel apparently base their contention chiefly upon the theory that the statute provides
that the appeal must be taken within the period of six months after the rendition of the
judgment, for such statement was made several times during the argument.
The word must is not used, nor is it contended that it is; nor is it said that the word
may should be construed to mean must. If it were, it would not change the intent of the
statute so far as the situation presented is concerned.
We are unable to find any language in the section quoted which is susceptible of the
contention made. The section in question is so clear to our minds that we find it difficult to
elucidate. Its purpose is to authorize an appeal by a party when he finds himself in one or
more of the classes mentioned, and the right to appeal when the circumstances bring him
within one class is entirely independent of the right given in either of the other classes. In
fact, it is clear that, if the circumstances bring him within two of the classes mentioned, he
has two separate and distinct grounds of appeal.
2. The section quoted, so far as it is material here, is substantially the same as it was
adopted in 1869 (Stats. 1869, p. 248), and during all of these years it has been uniformly
construed by bench and bar to authorize an appeal from an order denying a motion for a new
trial within sixty days from the denial of the motion, regardless of how long a time has
elapsed between the rendition of the judgment and the making of the order.
motion, regardless of how long a time has elapsed between the rendition of the judgment and
the making of the order.
The question is not a doubtful one, but, if it were, the construction so long accepted would
not be lightly overturned.
This court quoted with approval from Stuart v. Laird, 1 Cranch, 308, 2 L. Ed. 115, in
which the construction of a certain federal law was in question, as follows:
To this objection, which is of recent date, it is sufficient to observe that practice and
acquiescence under it for a period of several years, commencing with the organization of the
judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a
contemporary interpretation of the most forcible nature. This practical exposition is too strong
and obstinate to be shaken or controlled. * * * The question is at rest, and ought not now to
be disturbed. State v. Glean, 18 Nev. 44, 1 P. 186.
While we do not wish to be understood as holding that a construction adopted by bench
and bar is conclusive, it is certainly persuasive in any case in which it has uniformly been
indulged so long, and, unless such construction is clearly contrary to the legislative intent, it
will not be overthrown.
3. If the statute were doubtful, it would be the duty of the court to adopt that construction
which would be the least likely to produce mischief. Arnold et al. v. Stevenson, 2 Nev. 234;
Haydon v. Board, etc., 2 Nev. 371; O'Neil v. N.Y. & S.P. Co., 3 Nev. 141; State v. Brodigan,
37 Nev. 255, 141 P. 988.
For the reasons given, it is ordered that the motion be denied.
____________
50 Nev. 383, 383 (1928) Stephens v. McCormack
STEPHENS v. McCORMACK
No. 2788
February 6, 1928. 263 P. 774.
1. Limitation of ActionsLimitation Begins to Run Against Claim for Contribution Between
Sureties When Surety Discharges Common Debt.
Limitation begins to run against cause of action for contribution between sureties at time when surety
discharges common debt.
2. Limitation of ActionsAction for Contribution Between Sureties is Barred in Four Years,
Not Being Founded Upon Instrument in Writing.
Action for contribution between sureties is barred in four years as not founded upon instrument in
writing within Rev. Laws, 4967, rather than in six years as founded upon instrument in writing.
3. Principal and SuretyContribution Between Sureties is Based Upon Implied Contract.
Action for contribution between sureties is based upon contract implied by law from equitable
obligation imposed upon cosureties to proportionately share a common loss.
4. Principal and SuretyBond Expresses Relation Between Codebtors or Sureties and
Obligee, and Not Right of Contribution.
Bond expresses merely the relation existing between the codebtors or sureties and the obligee, and is
entirely distinct from right of contribution between sureties.
5. Limitation of ActionsStipulation Between Sureties, Principal, and Obligee for Judgment
for Obligee, Held Not Contract, so as to Make Action Between Sureties for
Contribution One on Written Contract Within Statute of Limitations.
Stipulation between Sureties, principal, and obligee for judgment in favor of obligee, held not a
contract so as to make action between sureties for contribution one on contract as affecting running of
limitation.
6. SubrogationSurety Paying Judgment Does Not Thereby Become Subrogated to Rights of
Creditor, but Must Actively Assert Right of Subrogation.
Surety who pays judgment does not ipso facto become subrogated to rights of creditor, but acquires
only a right to such subrogation, which he must actively assert before subrogation takes place.
7. SubrogationSurety Must Assert Right to Subrogation Before Legal Remedy is Barred by
Limitation.
Surety must assert his right of subrogation to creditor's rights before his legal action is barred by
statute of limitations.
8. SubrogationSubrogation Will Not Be Enforced at Expense of Legal Right.
Right of subrogation will not be enforced by court at expense of legal right.
Contribution13 C. J. sec. 26, p. 832, n. 53.
Limitations of Actions37 C. J. sec. 97, p. 766, n. 33; sec. 227, p. 862, n. 62.
Principal and Surety32 Cyc. p. 276, n. 55.
Subrogation37 Cyc. p. 385, n. 33; p. 419, n. 39; p. 421, n. 48.
Appeal from Second Judicial District Court, Washoe County; Clark J. Guild, Judge.
Action by Fred C. Stephens and another against J. M. McCormack. From a judgment of
dismissal, plaintiffs appeal. Affirmed.
Sardis Summerfield, for Appellants:
Action for contribution accrues at time party seeking to enforce it makes payment of
amount due from him and his coobligors. Statute of limitations commences to run from that
date. This case is governed by Rev. Laws, 4967, par. 3, providing action upon contract,
obligation or liability founded upon instrument in writing must be brought within six years,
with certain expectations. Action was brought little over four years after action accrued.
Chipman v. Morrill, 20 Cal. 131, which declined to give effect to word founded in phase
founded upon an instrument in writing is in violent opposition to elementary rule of
construction that if possible, effect must be given every word of act. Heywood v. Nye Co., 36
Nev. 571; State v. Ruhe, 24 Nev. 251. This court gave real substantial meaning to word
founded in Forrester v. S.P. Co., 36 Nev. 247.
Washington court holds action arising out of written agreement may be commenced within
six years. Arising out of and founded upon have similar meaning. Lindblom v. Johnston,
158 P. 974; Caldwell v. Hurley, 83 P. 318.
Stipulation acknowledging indebtedness is certainly instrument in writing.
instrument in writing. Right of action for contribution is assignable. Pully v. Pass, 31 SE.
478. Acknowledgment of indebtedness amounts to new and continuing contract if in writing.
Rev. Laws, 4985.
Promise cannot be implied from circumstances when implied promisor affirmatively refused
to make such promise. Carson River Co. v. Bassett, 2 Nev. 249.
E. L. Williams, for Respondent:
Contribution rests on principle that when parties stand in equali jure, law requires equality
and natural justice. It does not arise from contract. 13 C. J. 821; 6 R. C. L. 1036. There was
no agreement alleged whereby, in event one party should be compelled to pay whole
judgment, other would reimburse him. Stipulation provided only that joint and several
judgment might be entered. Rights of appellants to contribution rests upon contract which law
implies. Original contract is entirely distant from right of contribution. Durbin v. Kuney, 23
P. 661.
Language of statute of limitations refers to contracts growing out of written instruments,
not remotely, but immediately. Construction would be same if word founded were omitted.
Chipman v. Morrill, 20 Cal. 130, held that action was not founded on written instrument. It
was sustained. Thomas v. Pacific Beach Co., 46 P. 899, under exactly similar statute.
Appellant says our statute does not differ from Washington's, and cites Lindblom v.
Johnston, 158 P. 974, and Caldwell v. Hurley, 83 P. 318, but Justice Crow in latter opinion
says it differs from most if not all other states.
In Singleton v. Townsend, 45 Mo. 379, court said plaintiff would have had right to sue at
any time within five years from date of payment, although he had not paid judgment till last
month of supposed ten years' limitation, showing his claim is not operated on by section
relating to actions based upon writing for payment of money or property, but on section
relating to actions brought on contracts, express or implied.
Gredd v. Carroll, 211 SW. 914, held liability of joint endorsers of note payable to them, as
between themselves, on payment by one, is not expressed in writing, but is implied obligation
arising out of equity of relation.
Limitation applicable to action for contribution is that fixed for implied contract. Right is
not complete until payment. Statute does not begin to run until then. Faries v. Cockrell, 31
SW. 190; Sexton v. Sexton, 35 Ind. 88; Bell v. Norton, 225 P. 137; Staley v. Snow 209 Ill.
Ap. 452.
OPINION
This is an action to enforce contribution between sureties. The complaint sets forth two
causes of action, the facts of which, substantially stated, are as follows: One W. E. Pruett was
duly appointed as trustee of the bankrupt estate of Oscar J. Smith and Minnie D. Smith, on or
about the 2d day of November, 1911. On the 10th day of November, 1911, he filed his bonds
as such trustee, with Henry Stephens and respondent, J. M. McCormack, as sureties upon
each of said bonds, and continued to act as such trustee until June 16, 1921, when he
resigned. During the period of his trusteeship said Pruett embezzled from the funds of the
Oscar J. Smith bankrupt estate the sum of $5,488.24, and from the funds of the Minnie D.
Smith bankrupt estate the sum of $6,434.24. Respondent's cosurety, Henry Stephens, died
intestate on November 30, 1917, and, after due course of administration of his estate, it was,
on May 8, 1918, distributed in equal parts to his widow, Emily J. Stephens, and to his son,
Fred C. Stephens, one of the appellants herein. On or about December 13, 1921, the United
States of America brought suits in the District Court of the United States in and for the
District of Nevada upon said bonds against said Pruett and the said Emily J. Stephens and
Fred C. Stephens, as the heirs of said Henry Stephens, and against respondent, J. M.
McCormack, to obtain a judgment in its favor against said Pruett for the amount of said
defalcation, upon his part, and to obtain a joint and several judgment against him and the
said Emily J.
Pruett for the amount of said defalcation, upon his part, and to obtain a joint and several
judgment against him and the said Emily J. Stephens and Fred C. Stephens, as the heirs of
said Henry Stephens, deceased, and against respondent, J. M. McCormack, for the amount of
their bonded liability, with interest thereon, and costs of suit.
On and about October 20, 1922, all of the parties to said suits personally and by their
respective attorneys signed a stipulation and filed the same in the said United States District
Court, wherein they stipulated that judgment might be entered in said suits in favor of
plaintiff against said Pruett for the sums embezzled and against the other defendants jointly
and severally in the amount of their bonded liability and for interest thereon at the rate of 7
per cent per annum from November 1, 1921, until paid, and for costs of suit.
Pursuant to said stipulation the said United States District Court did on the 8th day of
December, 1922, enter joint and several judgments against the said Pruett, Emily J. Stephens
and Fred C. Stephens as the heirs of Henry Stephens, deceased, and the said J. M.
McCormack, in the total sum of $4,511.04. Soon after the rendition of said judgment the said
Emily J. Stephens and Fred C. Stephens requested the respondent J. M. McCormack to pay
his proportionate one-half of the amount of said judgment, which he declined and failed to
do, and on or about March 23, 1923, they were compelled to pay, and did pay the entire
amount of said judgment. On or about the 11th day of June, 1924, the said Emily J. Stephens
died testate, naming appellants as beneficiaries of all her estate, which, after due
administration, was on the 14th day of January, 1925, distributed to appellants, each in equal
interest. The claim of Emily J. Stephens against respondent's contributive share due on
account of the payment of said judgment by her and said Fred C. Stephens, was particularly
enumerated in said decree of distribution to appellants.
The complaint alleges that respondent is indebted to appellants as his contributive share of
the amount paid by said Emily J.
by said Emily J. Stephens and Fred C. Stephens, as the heirs at law of Henry Stephens,
deceased, the one-half thereof, to wit, $2,255.52 together with interest thereon at the rate of 7
per cent per annum from the 23d day of March, 1923, until paid, and for their costs of suit.
Demand is made for the payment thereof. This action was instituted on the 10th day of June,
1927. Respondent demurred to the complaint upon the ground that the prosecution of said
causes of action is barred by the statute of limitations. The demurrer was sustained, and, upon
the appellants refusing to amend, judgment was rendered dismissing the action.
1. The question presented is whether the action is barred by the statute of limitations. The
trial court held that the action was barred by application of that part of section 4967 of the
Revised Laws which provides that an action upon a contract, obligation, or liability, not
founded upon an instrument in writing, can only be commenced within four years. The statute
of limitations begins to run against a claim for contribution when plaintiff has discharged the
common debt. As shown by the facts, Emily J. Stephens and appellant Fred C. Stephens paid
the entire amount of the judgment on or about March 23, 1923, and this action to recover
from respondent his proportionate share was commenced more than four years later, to wit,
on June 10, 1927.
2, 3. But counsel for appellants claims that the statute fixing a limitation of four years is
not applicable, and that another part thereof, which provides that an action upon a contract,
obligation or liability founded upon an instrument in writing, with certain exceptions, shall
be commenced within six years, controls. It is urged that the action must be considered as
founded upon an instrument in writing; that is, upon the original obligation of suretyship. We
do not think the words founded upon will bear such construction The action is based upon a
contract which the law implies from the equitable obligation imposed upon cosureties to
proportionately share a common loss. The development of the action from equitable origin
is thus stated in Chipman v. Morrill, 20 Cal. at page 135.
of the action from equitable origin is thus stated in Chipman v. Morrill, 20 Cal. at page 135.
But the equitable doctrine, in progress of time, became so well established, that parties
were presumed to enter into contracts of suretyship upon its knowledge; and consequently,
upon a mutual understanding that if the principal failed, each would be bound to share with
the others a proportionate loss. Courts of common law thereupon assumed jurisdiction to
enforce contribution between the sureties, proceeding on the principal that from their joint
undertaking there was an implied promise on the part of each surety to contribute his share, if
necessary, to make up the common loss.
The principle stated in the foregoing text is supported by an abundance of authority. 13 C.
J. p. 832. See note 53 on said page.
The construction which appellant seeks to have us place on the words, founded upon an
instrument in writing, was rejected, and we think correctly, in the foregoing decision. the
court said:
The question is whether the present action is, in the meaning of the statute founded upon
an instrument of writing.' Our conclusion is that it is not thus founded, that the statute by the
language in question refers to contracts, obligations, or liabilities resting in, or growing out of
written instruments, not remotely or ultimately, but immediately; that is, to such contracts,
obligations, or liabilities as arise from instruments of writing executed by the parties who are
sought to be charged in favor of those who seek to enforce the contracts, obligations, or
liabilities. The construction would be the same if the word founded' were omitted, and the
statute read, upon any contract, obligation, or liability upon an instrument of writing.'
Appellants attack this construction and claim that the word founded is read out of the
statute. They say this is contrary to the decisions of this court holding that, when possible,
effect must be given to every word of an act. To this it is sufficient to say that we cannot
perceive how the word "founded" in any way qualifies the meaning of the word "upon" as
used in the statute.
perceive how the word founded in any way qualifies the meaning of the word upon as
used in the statute.
In McCarthy v. Water Co., 111 Cal. 328, 43 P. 956, it was said:
But a cause of action is not upon a contract founded upon an instrument in writing, within
the meaning of the code, merely because it is in some way remotely or indirectly connected
with such an instrument, or because the instrument would be a link in the chain of evidence
establishing the cause of action. In order to be founded upon an instrument in writing, the
instrument must itself contain a contract to do the thing for the nonperformance of which the
action is brought.
These constructions of a statute the same as ours, except as to the time of limitation, were
approved in Thomas v. Pacific Beach Co., 115 Cal. 136, 46 P. 899.
4. But appellants also contend that, if the action is not founded upon the original
obligation, it is founded upon the stipulation for judgment signed by the parties and their
attorneys, and that such is an instrument in writing within the meaning of the statute which
provides a limitation of six years. In support of this contention, it is urged that the stipulation
is an acknowledgment in writing by the sureties of their joint and several liability to the
United States and their joint liability to each other. We are not impressed with this
contention. The action by the United States was brought on the bond, and it is well settled
that a contract of that character merely expresses the relation between the codebtors or
sureties and the obligee, and is entirely distinct from the right of contribution which exists
between sureties. Durbin v. Kuny, 19 Or. 71, 23 P. 661; Hall v. Harris, 6 Ga. App. 822, 65
SE. 1086.
5. The stipulation is no broader in this respect. It is merely an admission on the part of the
sureties of their liability to the plaintiff. There is in it no expression of a contractual relation
between themselves.
6. Lastly, it is urged that appellants are entitled to be subrogated to the rights of the United
States under the judgment. In fact it is argued that the payment of the judgment operated as
an equitable assignment of the same to appellants, and therefore their right of action is
upon the judgment; or, in other words, by the fact of payment they were ipso facto
subrogated to all the rights of the judgment creditor, which included the right to
commence an action at any time within six years from the rendition of judgment.
of the judgment operated as an equitable assignment of the same to appellants, and therefore
their right of action is upon the judgment; or, in other words, by the fact of payment they were
ipso facto subrogated to all the rights of the judgment creditor, which included the right to
commence an action at any time within six years from the rendition of judgment. There is
authority for this view, but we think the better rule is thus expressed:
* * * In modern practice, the true rule would seem to be that a surety by payment does not
become ipso facto subrogated to the rights of the creditor, but only acquires a right to such
subrogation, and that, before the substitution or equitable assignment can actually take place,
he must actively assert his equitable right thereto. 25 R. C. L. 1391; Junker v. Rush, 136 Ill.
179, 26 NE. 499, 11 L. R. A. 183; Zuellig v. Hemerlie, 60 Ohio St. 27, 53 NE. 147, 71 Am.
St. Rep. 707.
7. But the doctrine is fully established that a surety who desires the privilege of
subrogation to the rights of the obligee must assert his claim to such equitable remedy before
his legal action is barred by the statute of limitations.
Mr. Sheldon, in his work on Subrogation, says:
* * * He (the surety) will be taken to have waived the privilege of subrogation unless he
claims it before his remedy at law against his principal is barred by lapse of time. The right of
subrogation will be barred by the statutory period of limitation like any other right. Sheldon
on Subrogation, p. 161, sec. 110; Harris' Law of Subrogation, sec. 830; Brandt's Suretyship
and Guaranty, sec. 339.
The principle stated is supported by the weight of judicial authority. Arbogast v. Hays, 98
Ind. 26; Kreider v. Isenbice, 23 Ind. 10, 123 NE. 786; Rittenhouse v. Levering, 6 Watts & S.
(Pa.) 190; Bledsoe v. Nixon, 68 N. C. 521; Simpson v. McPhail, 17 Ill. App. 499; Junker v.
Rush, 136 Ill. 179, 26 NE. 499, 11 L. R. A. 183; Darrow v. Summerhill, 93 Tex. 92, 53 SW.
680, 77 Am. St. Rep. 833.
8. The right of subrogation is merely an aid to the legal right, and one seeking relief by
this means must be diligent in prosecuting his claim. Subrogation will not be enforced at the
expense of a legal right. Brandt, sec. 267.
____________
50 Nev. 392, 392 (1928) Pardini V. City of Reno
PARDINI v. CITY OF RENO
No. 2768
February 6, 1928. 263 P. 768.
1. Municipal CorporationsProviso that Nothing in Charter Should Make City Liable for
Negligence Held Not Exemption of City from Liability for Defective Streets.
Reno city charter, art. 16, sec. 2, providing that nothing herein should be so construed as to make city
liable to any person by reason of negligence of city or its officers, held legislative declaration that nothing
contained in charter should be construed so as to make city liable for its own negligence or that of its
officers, and does not exempt city from liability for injuries from defects in streets caused by its
negligence.
2. Municipal CorporationsFor Municipality's Failure to Keep Streets in Repair, there Is
Implied Common Law Liability for Resulting Injury.
For chartered municipality's failure to keep streets in repair, there is an implied common law liability
for resulting injury.
3. Municipal CorporationsCharter Not Expressly Exempting City from Liability, City was
Impliedly Liable for Its Failure in Failing to Keep Streets Safe.
Since Reno city charter, giving it exclusive control over streets, does not expressly exempt city from
liability for failure to discharge its implied duty to make streets reasonably safe for travel, and under art.
12, sec. 10, as amended by Stats. 1923, p. 113, c. 77, it was optional with city whether city authorities
exercise powers to improve streets, city was impliedly liable for failure to discharge implied duty to keep
streets reasonably safe for travel.
4. Municipal CorporationsDuty of City, Implied from Exclusive Control Over Streets, Is
Private Corporate Duty, Necessarily Implied.
Duty of the city of Reno, implied from grant of exclusive control over its streets, is not a public duty
owing to public alone, but a private corporate duty, necessarily implied from grant.
5. Municipal CorporationsImmunity Extended to Legislative or Discretionary Acts of
Municipality Does Not Apply to Corporate Acts Purely Ministerial in Character.
Immunity extended to legislative or discretionary acts of a municipal corporation does not apply to
corporate acts of purely ministerial character, and hence, where injury resulted from city's negligence in
not carrying improvements as planned into execution, doctrine that city, in exercise of discretionary
power in planning improvement, is not liable for negligence in civil action was inapplicable.
6. Municipal CorporationsFailure to Erect Railing for Safety of Street Travelers Held
Actionable Negligence.
While duty of city to maintain railing along retaining wall for protection of vehicular travel was not
absolute, nevertheless, where railing was reasonably necessary for security of street travelers, which from
its nature would otherwise be unsafe, and erection of which would have prevented injury, it was
actionable negligence not to construct or maintain such railing.
7. Municipal CorporationsWhether City Was Negligent in Suffering Retaining Wall to
Remain Without Railing Was Question of Fact.
Where city, in improving street, provided for erection and maintenance of railing along concrete
retaining wall in plans adopted for improvement, whether city was negligent in suffering retaining walk to
remain without railing was a question of fact, not raised by demurrer to the complaint.
8. DeathMother, as Administratrix, Could Maintain Action for Death of Minor Child,
where Complaint Alleged Facts Authorizing Recovery of Exemplary and
Compensatory Damages.
In action against city for negligence in causing death of a minor, complaint sufficient to authorize
recovery both of exemplary and compensatory damages was properly brought by mother as administratrix
of minor daughter under Rev. Laws, 5647, 5648; sec. 4996, as amended by Stats. 1913, c. 35, sec. 2,
providing that complaint be brought in name of father or mother, not being applicable.
Death17 C. J. sec. 116, p. 1263, n. 6.
Municipal Corporations43 C. J. sec. 1704, p. 929, n. 69; sec. 1707, p. 932, n. 88; sec. 1755, p. 974, n. 44;
p. 976, n. 48; sec. 1759, p. 979, n. 81 (new); sec. 1836, p. 1060, n. 48; sec. 2044, p. 1279, n. 84.
Appeal from Second Judicial District Court, Washoe County; Clark J. Guild, Judge.
Action by Virginia Pardini, as administratrix of the estate of Emma K. Revera, deceased,
against the city of Reno. From a judgment dismissing the action, entered on an order
sustaining demurrer to amended complaint, plaintiff appeals.
plaintiff appeals. Reversed, with leave to defendant to answer. (Ducker, J., dissenting.)
Prince A. Hawkins, Price & Hawkins, and Clyde D. Souter of Counsel, for Appellant:
Exemption from recognized liability cannot be sustained unless expressly given; doubtful
case is resolved against corporation. 8 McQuillan Mun. Corp. sec. 2064. City may be sued for
tort. Fleming v. Memphis, 148 SW. 1057.
Question is whether proviso removes city from application of Rev. Laws, 5649, and
kindred sections. Proviso is construed with reference to immediately preceding parts, forms
part thereof, is limited thereto, and is not applicable to unrelated parts. 2 Lewis Suth. Stats.
Const., sec. 352. Nothing herein shall be so construed as to make the city liable, clearly
applies to things provided therein. City does not possess power which legislature does not. 19
R. C. L. 706. Unfair and discriminatory laws shall not be passed. Durkee v. Janesville, 28
Wis. 464.
Act may be void though not expressly prohibited by constitution, if it is contrary to
principles of social compact. Britton v. Board, 61 P. 1115; Calder v. Bull, 3 Dall. 387.
Where city has power to remove nuisance which it creates or permits to remain in streets,
it is liable for injuries resulting therefrom. Barnes v. Carson, 33 Nev. 17; Burks v. South
Omaha, 113 NW. 241. There are majority and minority lines of decisions as to whether street
improvement work is ministerial or governmental. McDonough v. Virginia City, 6 Nev. 90;
Barnes case, supra.
Claims arising ex delicto need not be presented before suit brought. Indeed, we do not see
how such claims could be audited. Shields v. Durham, 23 SE. 794; Adams v. Modesto, 63 P.
1083. City cannot determine value of life of person killed through its neglect. Nance v. Falls
City, 20 NW. 109.
Personal representative of decedent may maintain action.
action. Rev. Laws, 5648, 4997; 9 McQuillan, sec. 2064; Keever v. Mankato, 129 NW. 158.
Complaint supports exemplary damages. Lange v. Schoettler, 47 P. 139; Perry v. Tonopah
M. Co., 13 Fed. (2), 865.
LeRoy F. Pike, City Attorney, and E. F. Lunsford of Counsel, for Respondent:
Excepting mere statement alleged as conclusion, amended complaint shows excavation
was outside part of street used for vehicles, and therefore was not menace or nuisance to
them. Sidewalks cannot lawfully be used by them. Mercer v. Corbin, 20 NE. 132. Cities have
wide discretion to determine how much of highway shall be used for vehicular and for
pedestrian travel. 2 Elliott, Roads and Streets (4th ed.) 801. Appellant's citations, dealing with
obstructions in streets, are not applicable. Anderson v. Feutch, 31 Nev. 501, was based on
negligence in digging and leaving unguarded mine shaft in violation of express statute. There
is no similarity either in that case, or Barnes v. City of Carson, 33 Nev. 17, or Perry v. Ton.
M. Co., 13 Fed. 865.
Work was improving streets under section 10a of chartera governmental act; though
negligently done, city would not be liable. 3 Dillon (5th ed.) secs. 1128, 1129; 28 Cyc. 1257.
Rule of immunity extends to discretionary power, though plan be defective, or judgment
erroneous. 28 Cyc. 1262; Tronty v. Sacramento, 61 Cal. 271; White, Mun. Neg. sec. 31;
Detroit v. Beckman, 34 Mich. 125; 6 Dillon, 1626; 29 Cyc. 1285; Blyhl v. Waterville, 58 N.
W. 817; Hoye v. Philadelphia, 81 Pa. 44. City need not maintain barriers along embankment
to protect vehicles. Roberts Adm. v. Baton, 288 N. Y. 420.
Proviso is not limited to section immediately preceding. Legislative intent must be
considered without regard to position of proviso. Wartensleben v. Haithcock, 1 So. 38;
United States v. Scruggs, 156 Fed. 940; 25 R. C. L. 984. Clear meaning is that no court shall
so construe charter as to make city liable.
City may be specially exempted from liability by its charter. 28 Cyc. 1343.
Deceased had mother and father living. Plaintiff should have sued in individual, not
representative, capacity. Rev. Laws, 4996, 4997, 5647, et seq.
OPINION
This action was instituted to recover damages for the death of Emma K. Revera, which
was occasioned by the automobile in which she was riding falling over an unguarded concrete
retaining wall constructed by the authorities of the city of Reno at the intersection of Ralston
and Maple Streets within the city.
The action was brought under sections 5647 and 5648, of the Revised Laws of Nevada, in
the name of Virginia Pardini, as the personal representative of the deceased, against the city
of Reno alone. The case comes to this court upon appeal from the judgment of dismissal of
the action, entered upon an order sustaining the defendant's demurrer to the plaintiff's
amended complaint.
The legal questions presented by the rulings upon the demurrer are: First, does the statute
which constitutes the defendant's charter exempt the city from liability for a wrongful death
occasioned by the neglect of the city to make and keep its streets reasonably safe for travel?
Secondly, has plaintiff, as the personal representative of her deceased minor daughter, legal
capacity to sue?
The undisputed facts are these: The statute which constitutes the defendant's charter grants
to the city council, among other things, exclusive authority and control over the streets of the
city, coupled with power to raise means for their maintenance, improvement, protection, and
repair. In the exercise of their powers, the authorities of the city undertook to improve
Ralston and Maple Streets at the place where they intersect by dividing each street into two
public ways, a high street and a low street.
and a low street. On the dividing line of each street there was constructed a concrete retaining
wall varying in height from three to ten feet. On the west side of the wall on Ralston and on
the north side of the wall on Maple the street was filled, graded, and paved level with the top
of said wall for its entire length. Prior to, and on, December 28, 1924, the high and low
portions of each street were open and used by the public for travel. On said date an
automobile in which Emma K. Revera was riding was proceeding northerly along the high
and paved portion of Ralston Street, when it fell over said concrete retaining wall, and
dropped a distance of ten feet, killing her. At the time of her death she was 17 years of age,
unmarried, and contributing by her labor to the care, support, and maintenance of herself and
her mother. She left surviving her as her only next of kin her mother, Virginia Pardini. Letters
of administration on her estate were issued to her mother, who caused to be filed with the
clerk of the city of Reno a claim or demand for $20,000 as damages accruing from the death
of her daughter, which claim or demand was considered by the city council and rejected.
Thereupon this action was begun by plaintiff in her capacity as administratrix to recover both
punitive and compensatory damages accruing to her from the death of her daughter.
The complaint contains two charges of negligence: One, that the defendant, with full
knowledge of the dangerous condition in which Ralston and Maple Streets were left by the
work undertaken for their improvement, willfully, wantonly, and negligently placed no
railing, barrier, or other protection along and on top of said retaining wall for the safety of
travelers. The other, that the defendant, with full knowledge of the dangerous condition of
said streets, willfully, wantonly, and negligently failed, refused, and neglected to complete the
work of construction of said retaining wall according to the plans and specifications adopted
for the improvement of said streets by the erection and maintenance thereon of a strong iron
guard rail for its entire length.
length. The complaint assumes that it was the duty of the city, under the grant to it of
exclusive authority and control over its streets, coupled with power to raise means for their
improvement, to exercise ordinary care and diligence to see that its streets were reasonably
safe for travel, and charges that the death of the plaintiff's intestate was caused by its neglect
to perform this duty.
1. The first legal question presented by the defendant's general demurrer to the complaint
arises out of a proviso appearing in section 2 of article 16 of the statute which constitutes the
defendant's charter, which reads:
Provided, nothing herein shall be so construed as to make the city liable for any damages
suffered or incurred by any person for or by reason of any neglect of the city or any of its
officers.
The trial court was of the opinion that the proviso defeated plaintiff's right of recovery in
this action. The proviso is nothing more than a legislative declaration that nothing contained
in the act shall be construed so as to make the city liable for any damages suffered or incurred
from its own neglect, or the neglect of any of its officers. If, then, there is nothing in the act
which either expressly or by necessary intendment makes the city liable for damages suffered
or incurred from its negligent failure to keep its streets in safe condition, the proviso is
ineffective to defeat plaintiff's right to recover. The only provision contained in the
defendant's charter with respect to streets is to be found in article 11, which creates the office
of superintendent of streets, and in section 10 of article 12, as amended by the statutes of
1923, p. 113, c. 77, which provides that the city council, among other things, shall have
power to lay out, extend, change the grade, open, vacate, and alter the streets and alleys
within the city, and by ordinance require and provide for the improvement thereof, and for
that purpose, and for the purpose of defraying the expense thereof, may divide the city into
districts. There is nothing in the language of section 10 as amended imposing the exercise of
these powers upon the council as a duty.
council as a duty. The section, as we interpret it leaves it optional or discretionary with the
corporate authorities whether they will exercise the powers or not.
2. Such was the interpretation placed in a similar provision contained in the statute which
constituted the charter of Virginia City, McDonough v. Virginia City, 6 Nev. 90. It was held
in that case that, even though Virginia City under its charter was not obliged to open a street,
nor to repair one after it was opened, yet, if a street, when opened, was left in such a defective
condition that injuries resulted therefrom to persons exercising proper care, the city was liable
therefor, for the reason that, if the city undertake to exercise its optional powers over its
streets, the act must be done with that degree of care for the rights and personal safety of
individuals which natural persons are required to exercise under similar circumstances. This
doctrine is but the affirmance of the rule favored by the great majority of courts that for a
failure to keep streets in repair there is an implied common law liability for resulting injury
resting upon every chartered municipality. Cooley's Municipal Corporations (Hornbrook
Series), sec. 118. The latest expression of the doctrine may be found in 43 Corpus Juris, 974,
where it is stated that in most jurisdictions municipalities are held liable, irrespective of any
statute expressly imposing liability, for injuries from negligent failure to keep streets in a safe
condition, on the ground of implied liability, the authorities holding that, where such
corporations are invested with exclusive authority and control over the streets, and with
means for their construction, improvement, and repair, a duty arises to the public from the
nature of the powers granted to keep the streets in a reasonably safe condition, and a
corresponding liability exists on the part of the municipality to respond in damages to those
injured by a neglect to perform the duty, unless the charter giving such exclusive control
expressly exempts the municipality from liability for failure to discharge the implied duty. 3,
4.
3, 4. Since the defendant's charter which gives to it exclusive authority and control over
its streets does not expressly exempt the city from liability for failure to discharge its implied
duty to make and keep its streets reasonably safe for travel, we are of opinion that the rule of
implied liability obtains, notwithstanding the omnibus proviso which purports to cover
everything, but really touches nothing in particular. The charter of the defendant does not
create a liability for neglect to exercise ordinary care and diligence to see that its streets are
reasonably safe for travel. So, if the plaintiff can recover in this action, it is because of the
doctrine of the defendant's implied common law liability, and not because of anything
contained in its charter. The duty of the defendant, implied from the grant of exclusive
control over its streets, is not a public duty owing to the public alone, but a private, corporate
duty, which (when not expressly imposed) is necessarily implied from such grant. Shearman
& Redfield on Negligence (6th ed.) sec. 289. The proviso under consideration was introduced
into section 2 of article 16 to avoid misinterpretation, and it, as constructed, cannot by
implication be extended into a positive enactment to specifically exempt the city from
liability for injuries caused by defects in its streets. This conclusion renders it unnecessary for
us to determine whether the enactment of the proviso exceeded the just powers of the
legislature, and is therefore unconstitutional.
5. Counsel for defendant contend that, in planning and designing the improvement of the
streets described in the complaint, the city, through its legislative body, exercised a judicial or
discretionary power, and for such exercise it is not liable in a civil action. We do not
understand from the complaint that the plaintiff seeks to recover for an injury resulting from a
defective plan designed for the improvement of Ralston and Maple Streets, but for one
resulting from the negligence of the defendant in not carrying the improvements as planned
into execution. The prosecution of the work itselfthe carrying of the improvements into
executionbeing purely ministerial in character, the doctrine invoked has no application.
purely ministerial in character, the doctrine invoked has no application. The immunity
extended to legislative or discretionary acts of a municipal corporation does not apply to
corporate acts of a purely ministerial character. 43 Corpus Juris, 929, citing McDonough v.
Virginia City, supra.
6, 7. Counsel for defendant contend that the city was under no duty to erect and maintain a
railing or barrier along and on top of said retaining wall to prevent vehicles leaving the
traveled way from going over the wall. We concede that such duty is not absolute but,
nevertheless, where a railing or barrier is reasonably necessary for the security of travelers on
the street, which from its nature would otherwise be unsafe, and the erection of which would
have prevented the injury, it is actionable negligence not to construct and maintain such
railing or barrier. 43 Corpus Juris, 1060; 4 Dillon, Municipal Corporations, sec. 1696; Elliott,
Roads and Streets, sec. 796. The authorities of the city having made provision for the erection
and maintenance of a railing or barrier along the concrete retaining wall in the plans adopted
for the improvement of said streets, whether it was negligence to suffer the retaining wall to
remain without any railing or barrier is a question of fact concerning which we express no
opinion.
8. The second cause assigned for demurrer is that the plaintiff, Virginia Pardini, as
administratrix of the estate of her deceased minor daughter, is not the proper party plaintiff to
maintain this action. As stated at the outset, the action was brought under sections 5647 and
5648 of the Revised Laws of Nevada. Defendant contends that the action can be maintained
only under section 4996, Revised Laws, as amended by the Statutes of 1913, p. 28, c. 35, sec.
2; 3 Revised Laws, p. 3326. Section 5647 reads:
Whenever the death of a person shall be caused by wrongful act, neglect or default, and
the act, neglect or default is such as would, if death had not ensued, have entitled the party
injured to maintain an action and recover damages in respect thereof then, and in every such
case,
such case, the persons who, or the corporation which would have been liable if death had not
ensued shall be liable to an action for damages notwithstanding the death of the person
injured; and although the death shall have been caused under such circumstances as amount
in law to a felony.
Section 5648 reads:
The proceeds of any judgment obtained in any action brought under the provisions of this
chapter shall not be liable for any debt of the deceased; provided, he or she shall have left a
husband, wife, child, father, mother, brother, sister, or child or children of a deceased child;
but shall be distributed as follows:
1. If there be a surviving husband or wife, and no child, then to such husband or wife; if
there be a surviving husband or wife, and a child or children, or grandchildren, then, equally
to each, the grandchild or children taking by right of representation; if there be no husband or
wife, but a child or children, or grandchild or children, then to such child or children and
grandchild or children by right of representation; if there be no child or grandchild, then to a
surviving father or mother; if there be no father or mother, then to a surviving brother or
sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore
named, then the proceeds of such judgment shall be disposed of in the manner authorized by
law for the disposition of the personal property of deceased persons; provided, every such
action shall be brought by and in the name of the personal representative or representatives of
such deceased persons; and, provided, further, the jury in every such action may give such
damages, pecuniary and exemplary, as they shall deem fair and just, and may take into
consideration the pecuniary injury resulting from such death to the kindred as herein named.
Section 4996 as amended reads:
The father and mother jointly, or the father or the mother, without preference to either,
may maintain an action for the death or injury of a minor child, when such injury or death
is caused by the wrongful act or neglect of another; * * *.
action for the death or injury of a minor child, when such injury or death is caused by the
wrongful act or neglect of another; * * *. Any such action may be maintained against the
person causing the injury or death, or, if such person be employed by another person who is
responsible for his conduct, also against such other person.
No pretense to originality is made by the writer in the interpretation and application of the
sections quoted. They were reviewed, discussed, and applied by Judge Farrington in Perry,
Administrator, v. Tonopah Mining Co. of Nevada (D. C.) 13 F. (2), 865.
The conclusion reached in Perry's Case, quoting the syllabus, is:
Under Rev. Laws, Nevada, sections 5647, 5648, providing as to actions for wrongful
death in general that every such action shall be brought by and in the name of the personal
representative * * * of such deceased person,' the proceeds to be distributed as specified, and
section 4996, providing that a father or, in case of his death or desertion of his family, a
mother, may maintain an action for the death or injury of a minor child,' the remedy of a
father for death of his minor child was in his own right and exclusive, and he could not
maintain an action for the death as administrator.
Notwithstanding this conclusion, the court, in the course of the opinion, says:
Our practice act confers a right of action on the parent for the death of a minor child;
upon the guardian for the death of his ward, if of lawful age; upon the heirs or personal
representatives for the death of person not a minor. These provisions, however, do not cover
the whole field of injuries which may result from wrongfully caused death. For instance, a
boy of 20 years may at the same time be maintaining a wife, supporting his parents, and
assisting his brothers and sisters. In such a case all would suffer pecuniary injury by reason of
his death, but there could be no recovery by the widow, brothers, and sisters, except under
sections 5647 and 564S, in an action by the personal representative.
by the widow, brothers, and sisters, except under sections 5647 and 5648, in an action by the
personal representative. Again, the death might be caused by acts so willful, wanton, and
reckless as to demand exemplary damages; such damages are provided for in section 5648
only, and cannot be recovered unless action is brought by a personal representative of the
deceased under that section. See note to Bond v. United Railroads, Ann. Cas. 1912c, 67.
There was, therefore, ample reason for retaining the act of 1871, as amended, in the
Revised Laws of 1912. It has an independent scope, and serves a purpose which cannot be
accomplished under sections 4996 and 4997. I am of the opinion that an action can be
maintained under those sections for the wrongful death of a minor child. * * *
The averments of the complaint in this case conform to the reasoning employed by Judge
Farrington in arriving at the conclusion that in a proper case an action can be maintained
under sections 5647 and 5648 for the wrongful death of a minor child. The complaint alleges
facts sufficient, if sustained, to entitle plaintiff to recover both exemplary and compensatory
damages. It alleges that, at the time of her wrongful death, the plaintiff's daughter was
contributing to the care, support, and maintenance of herself and plaintiff, and that her death
was proximately caused by the willful, wanton, reckless, and negligent act of the defendant.
We are of the opinion that the action was properly brought under sections 5647 and 5648, and
the court below erred in sustaining the defendant's demurrer for defect in the party plaintiff.
The judgment is reversed, with leave to the defendant to answer.
Coleman, J., concurring:
I concur in the conclusions reached in the foregoing opinion, but will briefly state my
views upon two of the points involved.
I cannot agree to the contention that the authorization by the city of the work which was
done was in the exercise of a governmental function, of such a quasi judicial nature as to
exempt the city from liability, as is contended.
It is true that a city can exercise a certain discretion without incurring liability because
thereof; but to go to the length contended for by the city and carry such contention to its
ultimate conclusion, would result in saying that the city might plan a street full of death traps,
construct them in accordance therewith, and yet be free from liability. Such is not, and never
was, the law. The latest case stating the law applicable to the situation in hand which we have
been able to find is that of Perrotti v. Bennett, 94 Conn. 533, 109 A. 890, where it is said:
The real question in the case is that upon which the trial court placed its decision. Did
this defect in the highway inhere in the original plan of construction of the highway[.] The
finding by the trial court that the defect was in the plan does not settle the point. The principle
of nonliability for error in the adoption of the plan for a municipal improvement is fully
established. Cases to which the doctrine is applicable are not numerous. Some cases are
mistakenly conceived to fall within the doctrine. Other cases have led to exceptions which
have greatly limited the doctrine. Whenever the plan in its execution creates a nuisance, or
causes direct injury to another, liability follows for the damage done. Danbury & Norwalk R.
Co. v. Norwalk, 37 Conn. 109; Buckley v. New Bedford, 155 Mass. 64, 29 NE. 201; Seifert
v. Brooklyn, 101 N. Y. 136, 4 NE. 321 [54 Am. Rep. 664]; 19 R. C. L. p. 1091, sec. 376. The
execution of the plan, or the operation of the improvement in accordance with the plan, are
ministerial acts, and if the plan be executed or the improvement be operated with negligence,
the municipality will be liable for the resulting damage. Jones v. New Haven, 34 Conn. 1. If
the plan be so designed that it makes, for example, the street or sewer dangerous, the
municipality will be liable for the resulting damage.
the street or sewer dangerous, the municipality will be liable for the resulting damage. Collett
v. New York City, 51 App. Div. 394, 64 N. Y. S. 693; 28 Cyc. 1371. If the plan be defective
from the beginning, or if its defect originate shortly after the completion of the improvement,
and injury be ultimately necessarily the inevitable or probable result, the municipality will be
liable. Clearly this is just. Upon this assumption the city created the defective improvement
and either knew of it or was chargeable with knowledge of it. Every moment of its
continuance was an act of negligence by the municipality. The injury grew out of and was
attributable to this negligent continuance and not to the plan so defectively conceived of, but
to the operation of the plan after its defective condition was known or ought, in the exercise
of reasonable diligence, to have been known to the municipality. As soon as the fault of the
construction is known, or ought to be known by the municipality, it is in duty bound to
remedy the defect if this can be done, or if not, to cease the operation of this public agency
until the defect is remedied; the penalty of refusal after reasonable notice will be the liability
in damages for the injuries caused by the defect. Dayton v. Taylor, 62 Ohio St. 11, 16, 56 NE.
480; Ward v. Salt Lake City, 46 Utah, 616, 151 P. 905; Beebe v. Scott's Bluff County, 92
Neb. 504, 138 NW. 737; Collett v. New York City, 51 App. Div. 394, 64 N. Y. S. 393 [693];
Teager v. Flemingsburg, 109 Ky. 746, 60 S.W. 718 [53 L. R. A. 791, 95 Am. St. Rep. 400];
Gould v. Topeka, 32 Kan. 485, 4 P. 822 [49 Am. Rep. 496]; 4 Dillon on Municipal
Corporations (5th ed.), sec. 1746. The circumstances surrounding the defect must be such as
to charge the public authorities with notice of it. Stoddard v. Winchester, 154 Mass. 149,
151, 27 NE. 1014 [26 Am. St. Rep. 223]; Dillon on Municipal Corporations (5th ed.), sec.
1746. In Conlon v. St. Paul, 70 Minn. 216, 218, 72 NW. 1073, the Supreme Court of
Minnesota said: But, if there is such gross error of judgment as to show that in fact the city
authorities never exercised an intelligent judgment at all, the city may be liable for
constructing or maintaining the improvement on the defective plan or scheme adopted.'
Other authorities speak similarly."
may be liable for constructing or maintaining the improvement on the defective plan or
scheme adopted.' Other authorities speak similarly.
In Klipp v. City of Hoyt, 99 Kan. 14, 16, 160 P. 1000, 1001, in disposing of a similar
question, the court said:
No matter how carefully plans of improvement were considered, and no matter how
faithfully the adopted plan was executed, if the result were actual peril to persons using the
street with due care the duty to make and keep the street reasonably safe for travel was not
fulfilled and an action would lie in favor of one suffering injury consequent upon the breach
of duty.
See, also, Quest v. Town of Upton, 36 Wyo., 252 P. 506; City of St. Paul v. Seitz, 3
Minn. 297 (Gil 205), 74 Am. Dec. 753; Noble v. City of Richmond, 31 Grat. (Va.) 271, 31
Am. Rep. 726; Wilson v. Wheeling, 19 W. Va. 323, 40 Am. Rep. 780; Evans v. City of
Hutchinson, 99 Kan. 477, 162 P. 342.
But, if the rule contended for were accepted, the city was guilty of negligence, as I
understand the allegations of the complaint, in that the plans adopted provided that a guard
should be constructed along the wall in question, since none was erected.
Furthermore, the complaint alleges, as contended by counsel for the plaintiff, that the place
where the deceased was killed is inherently dangerous. This being true, the complaint clearly
states a cause of action, and, under the well-recognized rule that if a complaint states a cause
of action upon any theory, a general demurrer is not good.
It is also said that the city is not liable for its negligence nor for that of its officers. This
contention is based upon the proviso in section 2, art. 16, of the charter of the city. Section 1
provides for the regulation of salaries and compensation for services by ordinance; the filing
of claims against the city; and matters connected therewith. Section 2 provides that the holder
of any claim mentioned in this charter (of which plaintiff's is not one) which has been
rejected in whole or in part may commence suit within six months from the date of its
rejection, and other matters incident to such suit, and concludes with a proviso which
reads:
date of its rejection, and other matters incident to such suit, and concludes with a proviso
which reads:
Provided, nothing herein shall be so construed as to make the city liable for any damages
officers.
Counsel for the city say:
It was the contention of respondent in the court below, as it shall be in this court, that a
proper construction of the proviso as a matter of concrete legislation, requires it to be read
substantially as follows:
The provisions of this act notwithstanding, the city shall not be liable for any damages
officers.'
To give to the proviso in question any different meaning, would be to charge the
legislature with employing language entirely meaningless; a thing which the courts cannot
and will not do and a statute should be so construed as to avoid absurd results.'
It is a well-recognized rule that the courts should so construe a statute as to avoid absurd
results, and that the intention of the legislature controls in the construction of a statute. But,
when the language used is clear, plain, and unambiguous, the legislature must be understood
to mean just what it has plainly and explicitly expressed. Odd Fellows Bank v. Quillen, 11
Nev. 109. In the case last cited this court quoted with approval language to the effect that, to
ascertain the legislative intent, the first resort in all cases is to look to the natural significance
of the words employed. If, thus regarded, the words convey a definite meaning, which
involves no absurdity, and no contradiction between different parts of the same statute, then
that meaning, apparent upon the face of the statute, is the one which alone we are at liberty to
say was intended to be conveyed. In such a case there is no room for construction. That which
the words declare is the meaning of the instrument; and the courts have no right to add to, or
take away from, that meaning.
The language of the proviso is clear, unambiguous, and not subject to any interpretation
save that expressed. There can be no doubt that, if a sentence of a statute or part of a sentence
clearly expresses an idea, but the entire statute clearly shows a contrary intention, the courts
will give effect to the clear purpose of the statute. State v. Brodigan, 37 Nev. 245, 141 P. 988.
But such a rule, we emphasize, is applicable only when the language of the statute clearly
expresses a contrary intent, or a contrary view is clearly manifested from the history of the
legislation on the subject, or the wrongs or evils sought to be remedied. No such situation is
here presented. Look where we may we find no language expressing clearly or dimly any such
interpretation for the proviso as is contended for by the city, either in the section in which the
proviso is found, or elsewhere. In the face of this situation we would certainly be straining to
the breaking point every rule to adopt the contention of the city.
Besides, to give the proviso the interpretation contended for would work manifest
injustice, and the courts do not favor construing a statute, even if doubtful, so as to work
injustice, as the construction contended for by the city would do. Goldfield Con. M. Co. v.
State, 35 Nev. 183, 127 P. 77.
Besides, it is a well-known rule that:
An exemption from a recognized liability cannot be claimed unless it is clearly and
expressly given; and a doubt as to whether a particular case falls within the exemption will be
resolved against the municipality. 43 C. J. 932, sec. 1707.
In the face of the rule just stated, would it be seriously contended that the proviso would
be explicit and broad enough to exempt the city from liability in case there were a general
statute in this state to the effect that all municipal corporations should be liable for their
negligence and the negligence of their officers? We think not. We cannot see any difference if
such were the fact from the situation here existing where the common law liability exists.
Furthermore, if we were to accept the interpretation contended for, there is nothing in the
proviso exempting the city from liability arising as the result of an injury sustained due to
work of the city which is inherently dangerous.
Ducker, J., I dissent.
I recognize the rule stated by my esteemed associates that a municipality cannot claim
exemption from a recognized liability, unless it is clearly and expressly given; and a doubt as
to whether a particular case falls within the exemption will be resolved against the
municipality. In my opinion, the question is free from doubt. The case made out by the
amended complaint, which is based on the neglect of city officers in making improvements in
streets, falls squarely within the exemption declared by the proviso.
I agree with the statement that the proviso is clear, unambiguous, and not subject to any
interpretation save that expressed. The thought expressed, as I comprehend it, is that the city
is not liable for any damages suffered or incurred by any person for or by reason of any
neglect of the city or any of its officers, and nothing in the charter shall be so construed as to
make it liable. It would tax my imagination to believe that the legislature, after investing the
officers of the city with power over its streets, and being careful to prescribe a rule that
nothing in the grant shall be so construed as to make the city liable for the neglect of any of
its officers, intended at the same time that the city should be subject to a common law liability
for the same cause; or, in other words, that it was intended to grant immunity with one hand
and withhold it with the other. Why grant an exemption which does not exempt?
It is said that to give the proviso the interpretation contended for by the city would work
manifest injustice, and the courts do not favor construing a statute, even if doubtful, so as to
work an injustice. In a number of states such an exemption is not considered inequitable.
inequitable. As said in Wilmington v. Ewing, 2 Pennewill (Del.) 106, 43 A. 307 (45 L. R. A.
79):
The great burden imposed upon municipal corporations by their unrestricted liability for
injuries occasioned by defective streets and sidewalks, has doubtless been the cause of the
frequent modification or removal of such liability.
Be that as it may, if the exemption is unjust, the remedy should be afforded by the body
which enacted it. The legislature is the exclusive judge of the policy of the enactment, and has
ample power in the premises. See Wilmington v. Ewing, supra, and cases reviewed therein.
Morrell v. City of Phoenix, 16 Ariz. 511, 147 P. 732.
The judgment should be affirmed.
____________
CAWLEY v. PERSHING COUNTY
No. 2781
March 3, 1928. 264 P. 696.
1. Sheriffs and ConstablesResolution Fixing Constable's Salary at $1 Per Year Held Tantamount to No Salary,
Entitling Constable to Receive Predecessor's Compensation.
Resolution of board of county commissioners fixing constable's salary at $1 per year held void, under
Stats. 1919, c. 220, $1 being tantamount to no salary at all, and hence constable was entitled to receive
compensation which his immediate predecessor received, as provided by section 1, in case of failure of
board of county commissioners to fix compensation.
Sheriffs and Constables35 Cyc. p. 1551, n. 71.
Appeal from Sixth Judicial District Court, Pershing County; L. O. Hawkins, Judge.
Action by Michael Cawley against Pershing County. Judgment for plaintiff, and defendant
appeals. Modified and affirmed.
Thomas E. Powell, for Appellant:
Same points are here involved as in Cawley v. Pershing County, 50 Nev. 237, except there
is now involved additional contention that commissioners in reducing salary from $100
per month to $1 per annum, by their order of July 5, 1922, under Stats.
additional contention that commissioners in reducing salary from $100 per month to $1 per
annum, by their order of July 5, 1922, under Stats. 1919, c. 220, attempted to abolish office.
Contention is based on Moore v. Humboldt Co., 46 Nev. 220, which was reversed in 48 Nev.
397, which held statute constitutional.
Judgment should be reversed for reason that since its rendition this court has affirmed
validity of 1919 statute, and for further reason there is no evidence or anything in pleadings to
sustain finding that order of commissioners had effect of abolishing office. Best evidence of
this is fact that after order was made plaintiff became candidate and was elected to such
office.
Commissioner's order of July 20, 1920, fixing salary at $100 per month would remain in
effect if order of 1922 was void. Stats. 1919 provided if commissioners failed to fix salary,
officer should receive same compensation as predecessor.
Before order of 1922 can be declared invalid it must appear constable had no lawful right
to retain civil and coroner's fees and mileage, or that they were insufficient to induce persons
to seek office.
Both general and special acts provide constable shall retain fees. No other disposition is
made of them. 1909 statute is not repugnant to, nor repealed by, 1919 statute. Before
constable's fees can be diverted to any other purpose there must be express provision therefor.
There is no such provision.
Campbell & Robins, for Respondent:
Under stipulation attached to judgment roll respondent has bound himself by decision on
former appeal and does not urge question of right of legislature to delegate power to
commissioners to fix salaries of local officers.
Questions here are, does order of commissioners of 1922 in effect abolish office and, if so,
is constable entitled to $150 or $100 per month?
If order of 1922 is void it is same as failure of board to fix salary, and it should be same as
that of immediate predecessor.
Second question is, does order of July, 1922, fixing salary at $1 per year, have effect of
abolishing office?
Stats. 1919, c. 220, under which commissioners acted, provides two modes of fixing
compensation: (1) a salary; and (2) the fees as now allowed by law. Statute must be strictly
construed, as commissioners can only exercise such powers as are specially granted; when
law prescribed mode, all other modes are excluded. Waltz v. Ormsby Co., 1 Nev. 370; Lyon
v. Ross, 24 Nev. 102; Ex rel Beck v. Washoe Co., 22 Nev. 15.
Commissioners followed statute strictly; they fixed a salary, not fees, and by order of July,
1920, they did not permit retention of fees in criminal or civil cases. It is that order which is
in question. Under Moore v. Humboldt Co., 46 Nev. 220, it was virtual abolishment of office.
We claim office was never abolished; attempt to destroy office was nullity, and a nullity
binds no one. Salary of $100 or $150 sustains office. Judgment should be modified from
$1,049 to $699, and as so modified, affirmed.
OPINION
By the Court, Sanders, C.J.:
This is the second case involving the compensation of one Michael Cawley, as constable
for Lake Township, in Pershing County, to reach this court. Prior to the creation of Pershing
County out of a portion of Humboldt County, Lake Township was in Humboldt County. The
compensation of constable for Lake Township has been the source of protracted litigation in
both counties. See Moore v. Humboldt County, 46 Nev. 220, 204 P. 880, 210 P. 401; Moore
v. Humboldt County, 48 Nev. 397, 232 P. 1078; Cawley v. Pershing County, 50 Nev. 237,
255 P. 1073. While Lake Township was still a part of Humboldt County, the legislature
approved a special act fixing the compensation of the officers in certain townships, including
Lake, at $150 per month in lieu of all criminal fees, and allowed such officers to retain in
addition all civil fees. Statutes 1909, p. 144, c. 127. In 1921, the legislature by a special act
{Stats.
legislature by a special act (Stats. 1921, c. 247) made an attempt to reduce the compensation
of such officers from $150 per month to $5 per year. This attempt was thwarted by our
decision in Moore v. Humboldt County, 46 Nev. 220, 204 P. 880, 210 P. 401, supra.
In Moore v. Humboldt County, 48 Nev. 397, 232 P. 1078, supra, we held that the
legislative power to fix the compensation of township officers could not be delegated to
boards of county commissioners as was attempted to be done by the act of 1919. Statutes of
1919, p. 395, c. 220. These decisions may be said to be the source of the litigation involving
the compensation of constable for Lake Township when it became a part of Pershing County.
In the case of Cawley v. Pershing County, supra, we reversed our holding in Moore v.
Humboldt County, 48 Nev. 397, 232 P. 1078, supra, and held that the statute of 1919 was not
an unconstitutional delegation of legislative power under the constitution, article 4, sec. 32, as
amended, and that the act of 1919 was not in conflict with the constitution, art. 4, sec. 20,
restricting legislative powers.
Having upheld the act of 1919 in the first case of Cawley against Pershing County, the
legal question now presented is whether a judgment granting to Cawley as constable for Lake
Township a salary of $150 per month from January to August, inclusive, 1923, can be
sustained. The question arises out of a resolution approved by the board of county
commissioners of Pershing County in July, 1922, fixing the compensation of constable for
Lake Township at $1 per year for the ensuing term of four years. The proper solution of the
question involves the interpretation and the application of the act of 1919 uninfluenced by the
act of 1909 relative to the compensation of certain township officers in Humboldt County.
Section 1 of the act of 1919 reads:
The board of county commissioners of each county, during the month of July of any year
in which an election of township officers is held, shall fix the compensation of such officers
for the ensuing term, and which shall be a salary or the fees as now allowed to such
officers by existing enactments or as shall be fixed by subsequent enactments,
shall be a salary or the fees as now allowed to such officers by existing enactments or as shall
be fixed by subsequent enactments, and in case of failure of said boards to fix such
compensation as above provided, then the compensation of such officers shall be the same as
received by their immediate predecessors in office.
Section 2 of the act reads:
All acts or parts of acts, either general or special, in conflict herewith, are hereby
repealed.
Michael Cawley was elected constable for Lake Township at the general election held in
November, 1920, and was elected to succeed himself as constable at the general election held
in November, 1922. Apparently during both terms of his office Cawley was advised that he
was entitled to a salary of $150 per month and all civil fees as provided in the act of 1909,
and to recover the sum of $150 per month he brought two actions against Pershing County.
Each case was submitted to the court below for decision upon the pleadings with the result
that Cawley was awarded judgment for the full sum demanded in each complaint, which in
the present case was for the sum of $1,050, less $1. In the present case it was stipulated that
the law as established in the case of Cawley v. Pershing County, supra, then undecided should
control this case.
Upon the authority of Cawley v. Pershing County, supra, we are of the opinion that the
judgment in favor of Cawley for the sum of $1,049 must be reduced to the sum of $699, for
the reason that the resolution of the board of county commissioners of July, 1922, fixing the
compensation of the office of constable for Lake Township, was not in compliance with the
provisions of the act of 1919 and is void. A salary of $1 per year is tantamount to no salary at
all (Moore v. Humboldt County, 46 Nev. 220, 204 P. 880, 210 P. 401, supra) and, the board
of county commissioners having failed to fix any compensation for the office of constable,
either a salary or fees, as provided in the act of 1919, under the terms of said act Cawley is
entitled to the same compensation as was received by his immediate predecessor in office,
who, in this instance, was Cawley himself.
who, in this instance, was Cawley himself. That compensation was $100 per month.
Consequently, nothing remains for us to do but to modify the judgment appealed from by
reducing it to $699.
Such is the order.
[Pending on petition for rehearing.]
____________
50 Nev. 416, 416 (1928) American Sodium Co. v. Shelley
AMERICAN SODIUM CO. v. SHELLEY
No. 2810
March 3, 1928. 264 P. 980.
1. Appeal and ErrorAppeal is Perfected by Giving Proper Notice and Filing Required
Undertaking.
An appeal is perfected by the giving of proper notice of appeal and the filing of required undertaking.
2. Appeal and ErrorMotion to Dismiss Appeal Because Transcript Was Not Filed Within
30 Days Was Denied, where Extension Order Was Granted Before Original
Expiration Date (Rule 2).
Where time for filing transcript on appeal expired January 18, but a valid order was entered on
January 16, extending the 30 days' time, as provided by rule 2, for filing transcript, motion to dismiss
appeal was denied.
3. Appeal and ErrorOrder, Made Before Expiration of Time for Filing Transcript on
Appeal, for Extension of Time for Filing, Held Valid (Rule 21).
Court order for time extension made before expiration of time for filing transcript on appeal, and
made pursuant to rule 21 authorizing court or justice thereof to enter an order, on good cause shown,
extending time within which transcript may be filed held valid.
Appeal and Error3 C. J. sec. 1141, p. 1106, n. 54; sec. 1284, p. 1202, n. 62; 4 C.J. sec. 2201, p. 467, n. 68.
Appeal from Eighth Judicial District Court, Lyon County; Emmett J. Walsh, Judge pro
tem.
Action by the American Sodium Company against Jennie Baldwin Shelley and another.
From the judgment, defendants appeal, and plaintiff moves to dismiss the appeal for
appellants' failure to file a transcript of the record as required. Motion to dismiss denied,
and 10 days given appellants to file transcript.
Green & Lunsford, for Movant:
No transcript of record on appeal, statement on appeal, bill of exceptions, or other record
on appeal was served or filed in supreme court within thirty days after appeal was perfected.
Bill of exceptions must be served and filed within twenty days after final judgment. Rules 2
and 3; Stats. 1923, 163.
Hoyt, Norcross & Cheney, and H. Pilkington, for Appellants:
This court made order which does not expire until tomorrow for filing record upon appeal.
Therefore this motion is premature. It is true that section 1, Stats. 1923, p. 163, makes no
provision for extension of time, but section 2 provides no appeal shall be dismissed for any
defect or informality in appellate proceedings, etc. Conformable to liberal statutes and
decisions thereon regarding appellate practice, with view that litigant shall not be unjustly
deprived of hearing on merits, and in view of impossibility of reporter to make transcript of
notes within time limited (especially where no other means is at hand to bring proper
transcript to supreme court), section 2 should be held to cover such case, though it might
easily have been more happily worded.
OPINION
Per Curiam:
The case is before the court on respondent's motion to dismiss the appeal for appellants'
failure to file a transcript of the record within 30 days after the appeal was perfected as
provided by rule 2. Appellants, in addition to resisting the motion to dismiss, made
application for an order extending the time within which the transcript might be filed. Upon
the hearing it was stipulated between counsel that, in case the motion to dismiss should be
denied, appellants might have 10 days from the service of a copy of the opinion herein within
which to file a transcript.
Rule 2 provides that an appeal may be dismissed on the application of the respondent,
either upon notice to the appellant or without the giving of such notice.
the appellant or without the giving of such notice. When an application for a dismissal is
made by the respondent without first giving such notice, the rule requires a certificate from
the clerk of the trial court certifying to certain facts, and, when an order of dismissal is made
upon such application, the appeal may be reinstated for good cause shown. When the
application for a dismissal is made upon notice, no such certificate of the clerk is required,
but the order of dismissal may be made upon good cause shown, no matter in what manner
the good cause is made to appear.
In the instant case the respondent gave notice of his intention to move for the dismissal of
the appeal, stating the grounds therefor, and at the time of serving such notice served a copy
of an affidavit setting forth certain alleged facts in support of the motion.
The affidavit which follows the grounds relied upon in the motion states that the notice of
appeal was served on December 16, 1927, and was filed on December 17, 1927; that an
undertaking on appeal was filed on December 19, 1927, and and that no transcript of the
record, on appeal, bill of exceptions, or other record was filed in this court within 30 days
after such appeal was perfected; that no transcript on appeal, bill of exceptions, or other
record was settled, served, or filed in the trial court within the time allowed by law, or at all;
and that the time for filing the same has expired.
1-3. An appeal is perfected by the giving of the proper notice of appeal and the filing of
the required undertaking. The appeal in this case was perfected on December 19, 1927; hence
the 30 days within which the transcript on appeal should have been filed in this court expired
on January 18, 1928, unless a valid order of this court was entered extending the time
therefor. On January 16 an order was made extending the time to and including February 15
within which to file said transcript. We think, in view of this order, that the motion to dismiss
must be denied. Rule 21 expressly authorizes the court or a justice thereof to enter an order,
upon good cause shown, extending the time within which a transcript may be filed.
transcript may be filed. The order was made before the expiration of the time allowed for
filing the transcript, and is valid.
It is ordered that the motion to dismiss be denied, and that appellants have 10 days from
the receipt of a copy hereof within which to file a transcript in this court.
____________
50 Nev. 419, 419 (1928) Lewis v. Lewis
LEWIS v. LEWIS
No. 2774
March 3, 1928. 264 P. 981.
1. DivorceHusband Leaving after Residing in State Six Months, but Subsequently Returning, Held Not
Resident so as to Give Court Jurisdiction in Divorce.
Where husband, who had remained in state for over six months, left to accept position, but
subsequently returned and three weeks later instituted divorce proceedings against wife, held, under Stats.
1923, c. 214, requiring residence in state for not less than six months next preceding commencement of
action, that husband was not resident; residence meaning actual, corporeal presence for statutory
time, in view of Rev. Laws, secs. 3609, 3610.
Divorce19 C. J. sec. 4243, p. 31, n. 93.
Suit by Frederick T. Lewis against Augusta C. Lewis. From a judgment for plaintiff and an
order denying a motion for a new trial, defendant appeals. Reversed, and case dismissed.
Brown & Belford, for Appellant:
The court in this case did not have jurisdiction to grant a decree of divorce for the reason
that the plaintiff had not been a resident of the State of Nevada for a period of not less than
six months next preceding the commencement of the action, as provided by chapter 214 of the
Statutes of Nevada for 1923, and sec. 5838 of R. L. 1912.
The meaning of the word resident is construed both by the courts and by the legislature
of this state; by the legislature in section 3609 of the Revised Laws of 1912; and by this
court in the case of Fleming v. Fleming, 36 Nev. 135
50 Nev. 419, 420 (1928) Lewis v. Lewis
the legislature in section 3609 of the Revised Laws of 1912; and by this court in the case of
Fleming v. Fleming, 36 Nev. 135, 134 Pac. 445, in which the court says in effect that the
word resided has a plain, unambiguous meaning. The legislature in using this word must
have intended it to be construed in this sense. Lewis' Sutherland Statutory Construction (2d
ed.), secs. 366-367; Powers v. City of Worcester, 97 NE. 95; Eckerson v. City, 115 NW. 177.
The identical question considered by this court has arisen in other states, with statutes
similar to ours, and these courts have held that this positive requirement as to residence must
be complied with before the courts acquire jurisdiction of a case. Haymond v. Haymond, 12
SW. 90; Coulter v. Coulter, 100 SW. 1134; Keller v. Keller, 129 SW. 492; Garver v. Garver,
130 SW. 369.
It is a familiar rule, where a statute that has been construed by the courts has been
reenacted in the same or substantially the same terms, the legislature is presumed to be
familiar with its construction and to have adopted it as a part of the law unless it expressly
provides for a different construction. Dalton v. Leland, 135 P. 54; 25 R. C. L. sec. 297; 36
Cyc. 1153; Ex Parte Nowak, 195 P. 402; Powers v. City of Worcester, 97 NE. 95; Tobey v.
Kip, 101 NE. 998.
With the construction clear of the word reside as used in the main body of the statute of
1923, same construction should be placed upon the word resident as used in the proviso
thereof. 25 R. C. L. 994, Similar Expressions in Same Statute; James v. City of Newbury, 201
P. 212; Rhodes v. Weldy, 29 NE. 461; Lewis' Sutherland Statutory Construction (2d ed.), sec.
399; 101 S. 574; 36 Cyc. 1150; 36 Cyc. 1132.
This court in the case of Fleming v. Fleming (36 Nev. 135, 134 P. 445) stated very clearly
what absences were permissible under the statute.
Platt & Sanford, for Respondent:
There is no dispute at all but the plaintiff and respondent was personally and physically
present in the city of Reno, county of Washoe, State of Nevada, for more than six months
continuously preceding the filing of his complaint.
50 Nev. 419, 421 (1928) Lewis v. Lewis
Reno, county of Washoe, State of Nevada, for more than six months continuously preceding
the filing of his complaint. It needs no argument to urge that under the rational contemplation
of the principles of law upon the question of a bona fide residence, that a person may
establish a bona fide residence within a particular county and state, and after having done so
is quite privileged to travel whenever and wherever he desires without losing his residence for
that reason.
The findings of the trial court upon a contested fact in the case are conclusive upon this
court. Fleming v. Fleming, 36 Nev. 135, 134 P. 445; Merritt v. Merritt, 160 P. 222; Presson v.
Presson, 38 Nev. 203, 147 P. 1081; Blakeslee v. Blakeslee, 41 Nev. 243, 168 P. 951; Miller
v. Miller, 37 Nev. 255, 142 P. 218; Walker v. Walker (Nev.), 198 P. 480.
The required residence of the plaintiff in a divorce action is a jurisdictional fact, and must
appear to warrant a divorce. The allegation of the residence stands upon the same footing as
any other allegation of fact showing the right to a divorce. Confer v. Second Judicial District
Court of the State of Nevada, in and for Washoe County, et al., 49 Nev. 18, 234 P. 688.
Residence in contemplation of a divorce statute is a physical act, coupled with a bona fide
intention. It is idle to contend that a residence once acquired without any intention of
abandoning it, may be lost. There was not only substantial and material evidence for the trial
court to base a finding to the effect that the plaintiff was a resident of Reno, Washoe County,
State of Nevada, but the evidence to that effect was conclusive.
The case of Fleming v. Fleming, 36 Nev. 135, 134 P. 445, is quite different from the facts
in the case at bar. In the Fleming case, during the six months necessary to confer jurisdiction
by residence, the plaintiff was away from Reno for three months.
Plaintiff and respondent testified that it was always his definite intention to return to
resume his residence at Reno.
The proposition and rule so often laid down by this court that where the evidence is
conflicting, the appellate court will follow the findings of the trial court, is constant if
there be any evidence at all upon which to base a finding.
50 Nev. 419, 422 (1928) Lewis v. Lewis
court that where the evidence is conflicting, the appellate court will follow the findings of the
trial court, is constant if there be any evidence at all upon which to base a finding.
OPINION
Per Curiam:
This suit was instituted by the respondent. From a judgment in his favor upon the ground
of extreme cruelty and an order denying a motion for a new trial, the defendant has appealed.
The parties will be referred to as they were designated in the trial court.
It is contended that the judgment and order should be reversed for two reasons: (1)
Because the court had no jurisdiction to render the judgment it did; and (2) because of
insufficiency of the evidence.
The first assignment of error is based upon the contention that the plaintiff had not been a
resident for a period of not less than six months next preceding the commencement of the
suit. Out statute reads:
Divorce from the bonds of matrimony may be obtained, by complaint, under oath, to the
district court of the county in which the cause therefor shall have accrued, or in which the
defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be either
the county in which the parties last cohabited, or in which the plaintiff shall have resided six
months before suit be brought, for the following causes: * * * Provided, that, unless the cause
of action shall have accrued within the county while plaintiff and defendant were actually
domiciled therein, no court shall have jurisdiction to grant a divorce unless either the plaintiff
or defendant shall have been a resident of the state for a period of not less than six months
next preceding the commencement of the action. The judgment or decree of divorce granted
under the provisions of this act shall be a final decree. Stats. 1923, c. 214, p. 389, sec. 22.
It is conceded that the plaintiff had not been physically and corporeally present in the State
of Nevada for the period of six months next preceding the commencement of the suit.
50 Nev. 419, 423 (1928) Lewis v. Lewis
of the suit. It appears, however, that the plaintiff first came to Nevada in August, 1923, and
remained in the state for something over six months, returning to New York City, where he
accepted a position with one of the large concerns of that city. While he was there, the
defendant brought suit against him for separate maintenance. Within a few days after that suit
was instituted he left New York and returned to Nevada, and, within three weeks after his
return to this state, instituted this proceeding.
The defendant is not and has never been a resident of Nevada, and the alleged cause of
action did not accrue therein.
We will first consider the contention that the lower court was without jurisdiction to enter
the decree awarding the plaintiff a divorce.
In determining this question we must decide if the word resident, as used in the section
of the statute quoted, means that a plaintiff must be physically and corporeally present in the
county in which the action was instituted for the six months' period, as contended by the
defendant, or whether, as contended by the plaintiff, the fact that he had once established a
residence by such presence, his absence for a time and return three weeks prior to instituting
the proceeding was sufficient to constitute him such a resident as is contemplated by the
statute.
Our statute defines legal residence as follows:
The legal residence of a person with reference to his or her right of suffrage, eligibility to
office, right of naturalization, right to maintain or defend any suit at law or in equity, or any
other right dependent on residence, is that place where he or she shall have been actually,
physically and corporeally present within the state or county, as the case may be, during all of
the period for which residence is claimed by him or her; provided, however, should any
persons absent himself from the jurisdiction of his residence with the intention in good faith
to return without delay and continue his residence, the time of such absence shall not be
considered in determining the fact of such residence."
50 Nev. 419, 424 (1928) Lewis v. Lewis
residence, the time of such absence shall not be considered in determining the fact of such
residence. Rev. Laws, 3609; Stats. 1911, p. 318.
This section seems clear enough, especially when we take into consideration the history of
the legislation upon the subject and its purpose. It does not, by express terms, repeal, amend,
or qualify section 3610 of the Revised Laws (Stats. 1889, p. 61), and what its full import is
we need not determine. Both sections are incorporated in the revision of 1912, which was
compiled by the then justices of this court. It is certain, however, that one purpose was to so
enlarge the definition or scope of residence as to extend it to persons whose right to
maintain or defend any suit at law or in equity depends upon his residence. So far as occurs to
us at the moment, a nonresident may maintain an action in the courts of this state in any kind
of action except in a divorce suit. Those of us who resided in the state at the time of the
passage of the 1911 act (Rev. Laws, 3609) recall the reasons for its adoption. They need not
be stated here, save to say that one purpose was to compel an actual, corporeal presence in the
county for a period to six months prior to the institution of a divorce action (Presson v.
Presson, 38 Nev. 203, 147 P. 1081) by those who came to the state to establish a residence for
the purpose of instituting divorce proceedings. It was not aimed at those who were permanent
residents of years standing.
Residence, as contemplated by our statutes, for the purpose of maintaining a divorce suit,
was defined in Presson v. Presson, supra. Subsequent to the rendition of the opinion in that
case the amendment of 1923 was adopted. That statute, like all statutes, must be construed
and applied in the light of the purpose sought to be attained. State v. Brodigan, 37 Nev. 245,
141 P. 988; Escalle v. Mark, 43 Nev. 173, 183 P. 387, 5 A. L. R. 1512. Let us then inquire,
what was the purpose of the amendment of 1923? For a full understanding of the situation let
us briefly review the history of divorce legislation in this state. The divorce law of 1861,
which provides for a six months' residence as a necessary prerequisite to jurisdiction,
remained substantially unchanged and unexploited until an enterprising lawyer from New
York, who, realizing its possibilities, became admitted to the bar of this state and
capitalized its liberality.
50 Nev. 419, 425 (1928) Lewis v. Lewis
a six months' residence as a necessary prerequisite to jurisdiction, remained substantially
unchanged and unexploited until an enterprising lawyer from New York, who, realizing its
possibilities, became admitted to the bar of this state and capitalized its liberality. See In Re
Schnitzer, 33 Nev. 581, 112 P. 848, 33 L. R. A. (N. S.) 941. The abuses which were thereafter
practiced led to much outside criticism, and a great deal of discontent within the state, leading
to subsequent amendments. The amendment of 1923 was the result of a movement which had
as its object an amendment providing for the entry of an interlocutory decree, and a final
decree six months thereafter, which was inaugurated by an initiative petition. There was
much opposition to the amendment thus proposed, and when it was submitted to the
legislature for its consideration, that body refused to pass it and submitted to the voters a
substitute measure, as pointed out in Tesoriere v. Second Judicial District Court, 50 Nev. 302,
258 P. 291, and it was in this proposed amendment, which was adopted, that the provision in
question was incorporated. All of the recent legislation was aimed at those who had come or
might come into the state with a view of establishing a residence for divorce purposes. This is
a fact well known by all who kept reasonably informed on the current events of the day. This
is also manifested from the proviso above quoted, which is the only change made in our
divorce law as it existed at the time of its adoption. This is obvious from the language:
Unless the cause of action shall have accrued within the county while plaintiff and
defendant were actually domiciled therein.
The clear purpose of the amendment was to put an aggrieved party whose cause of action
had arisen in the county in a different position from one who relied upon a cause of action
which had arisen elsewhere, as to the necessity of corporeal presence for the six months next
preceding the commencement of the action. In other words, it is the evident purpose of the
language not to require an aggrieved party, whose cause of action arose in the state, to be
corporeally present during the entire six months next preceding the commencement of
the action, but to require it of one whose cause of action did not so arise.
50 Nev. 419, 426 (1928) Lewis v. Lewis
in the state, to be corporeally present during the entire six months next preceding the
commencement of the action, but to require it of one whose cause of action did not so arise.
No other intelligent construction can be put upon this amendment.
The word residence in the amendment in question must receive the construction which
was given it by this court in Presson v. Presson, supra, which held that not only good faith but
actual corporeal presence was necessary to the establishment of such a residence as would
give a court jurisdiction to grant a divorce. We reach this conclusion both from a
consideration of the purpose sought by the amendment and from the further fact that the word
must be deemed to have been used in the amendment in the light of the construction placed
upon the word in Presson v. Presson. In Gould v. Wise, 18 Nev. 253, 3 P. 30, it was held that
when the words carry on had been construed by the federal court and the statute was
thereafter reenacted, such construction must be presumed to have been accepted. In that case
the court said:
It has frequently been held that the reenactment of a statute without substantial alteration,
after an authoritative construction has been placed upon it, is a legislative adoption of the
construction. The cases in which the rule is announced are generally those in which the
construction has been given by the highest court of the state; no case has fallen under our
notice in which the construction was given to a statute of the state by the courts of the United
States. The rule is based upon the presumption that the legislature knew of the construction.
Such is the well-recognized rule. 25 R. C. L. p. 1075, sec. 297; Ex Parte Nowak, 184 Cal.
701, 195 P. 402; Tobey v. Kip, 214 Mass. 477, 101 NE. 998.
Having reached the foregoing conclusion as to the question of jurisdiction, it is
unnecessary to determine the question as to the sufficiency of the evidence.
It is ordered that the judgment and order appealed from be reversed and that the case be
dismissed, at the cost of the plaintiff.
50 Nev. 419, 427 (1928) Lewis v. Lewis
from be reversed and that the case be dismissed, at the cost of the plaintiff.
May 16, 1928.
Per Curiam:
Rehearing denied.
____________
50 Nev. 427, 427 (1928) Markwell v. Gray
MARKWELL v. GRAY
No.2795
March 31, 1928. 265 P. 705.
1. Exceptions, Bill ofNotice of Order Denying Motion for New Trial Is Not Necessary
Prerequisite before Limitations for Filing Bill of Exceptions Begin to Run.
Service of notice of order denying motion for new trial is not a necessary prerequisite before 20-day
period for filing bill of exceptions, under Stats. 1923, c. 97, sec. 1, begins to run; there being no provision
for such notice in such statute, in which case it is duty of moving party to ascertain entry of such order.
2. Exceptions, Bill ofBill of Exceptions, Not Filed Within 20 Days After Order Denying
Motion for New Trial Cannot Be Considered.
On failure to file transcript as a bill of exceptions within 20 days after decision on motion for new
trial, as required by Stats. 1923, c. 97, sec. 1, it cannot be considered by supreme court on appeal.
3. Appeal and ErrorPapers, Documents, and Files Relating to Motion for New Trial, Not
Incorporated in Bill of Exceptions, Cannot Be Considered.
Papers, documents, and files relative to motion for new trial do not constitute part of judgment roll, as
defined by Rev. Laws, sec. 5273, and cannot be considered when not incorporated in bill of exceptions,
even though certified by clerk.
Appeal and Error4 C. J. sec. 1769, p. 162, n. 79; sec. 1889, p. 76, 79.
Appeal from Eighth Judicial District Court, Churchill County; Clark J. Guild, Judge.
Action by Margaret Markwell against J. H. Gray and others. From a judgment of dismissal
and an order denying a motion for new trial, plaintiff appeals. On motion to dismiss appeal
from order denying motion for new trial and to strike papers, files, and documents
specified in the motion.
motion to dismiss appeal from order denying motion for new trial and to strike papers, files,
and documents specified in the motion. Motion sustained.
A. L. Haight and Price & Hawkins, for Movants:
Matters may be presented to this court for review upon appeal by bills of exception, and
not otherwise. Appeals are creatures of statute, and except as authorized by the statute do not
exist.
The act of 1915, p. 164, et seq., vol. 3, Rev. Laws, p. 3342, et seq., as amended by statute
of 1923, p. 163, et seq., constitute the statutory method for procedure on appeals in civil
actions.
Section 414 of the practice act, being sec. 6356 Rev. Laws, vol. 2, was repealed by the act
of 1915, p. 164, supra.
It is, therefore, submitted that appellant has no right to bring to or file in this court, upon
her appeal from the judgment, and upon her appeal from the order denying her motion for a
new trial, any volumes, documents or papers other than such as are authorized and prescribed
by the provisions of said statutes above referred to, viz, 1915 and amendments thereto; and
that such volumes, documents or papers so sought to be presented to this court must, in order
to confer jurisdiction upon the court to consider same, be certified in the manner and form as
prescribed by said statutes governing appeals; and that the steps prescribed by such statutes
must be taken within the times prescribed and defined, unless it appear from the record that
those times were enlarged in the way and manner as prescribed and authorized by such
statutes.
By the statute of 1923, p. 163, bills of exceptions must be served and filed within 20 days
after the decision upon the motion for a new trial, unless such time be extended, as by the
statute authorized. Water Co. v. Belmont Development Co., 49 Nev. 172, 180.
G. Gunzendorfer, for Appellant:
Appellant respectfully directs the attention of the court to the following: State v. Murphy, 29
Nev. 247; Studebaker Bros. Co. v. Witcher, 195 Pac.
Studebaker Bros. Co. v. Witcher, 195 Pac. 334; sec. 381 (Revised Laws, 5323), as amended
in 1921 (Statutes 1921, p. 149).
Per Curiam:
On August 27, 1927, Margaret Markwell, appellant, plaintiff in the lower court, perfected
her appeal from a judgment of dismissal of her action in equity, entered on April 13, 1927,
and her appeal from an order denying her motion for new trial, entered on June 28, 1927. The
respondents, defendants in the lower court, move to dismiss the appeal from the order
denying the motion for new trial, and also move to strike the papers, files, and documents
specified in the motions.
The parties will be designated as they appeared in the court below.
We shall first consider and dispose of the motion to dismiss. The motion is based upon the
ground that no bill of exceptions was served and filed within 20 days after the decision upon
the motion for new trial, as required by section 1 of chapter 97, Statutes 1923. In opposition
to the motion, the plaintiff makes two contentions: (1) That the time prescribed by the statute
does not begin to run until after notice of the decision upon the motion for new trial is served;
(2) that, upon the showing made by the affidavit of counsel for plaintiff, filed in opposition to
the motion, the motion should be denied.
1. The first contention is untenable. Concededly, no service of notice of the making of the
order is required by the statute. Where no provision is made for notice, it is the duty of the
moving party to ascertain the entry of such an order. Hayne New Trial and Appeal (Rev. Ed.),
p. 878, sec. 168, citing cases.
According to the affidavit filed in opposition to the motion to dismiss, plaintiff's motion
for new trial was argued and submitted for decision on June 16, 1927, and taken under
advisement. Immediately upon the submission of the motion, the trial judge spoke to the
affiant about the possibility of an amicable settlement of the controversy; that thereafter,
upon the invitation of the judge, the parties and their attorneys met in his chambers for
purpose of considering a settlement of the case,
controversy; that thereafter, upon the invitation of the judge, the parties and their attorneys
met in his chambers for purpose of considering a settlement of the case, and, as a result of the
negotiations there carried on, in which the judge participated, a tentative settlement was
reached, which involved various details requiring time to work out, and an adjournment was
taken to effectuate the settlement; that, at the time of the adjournment, affiant was given to
understand that nothing further would be done in the action, especially as to said motion for a
new trial, in view of the probable settlement of the controversy; that on June 28, 1927, and
while the proposed settlement was in process of maturing, the court made, and caused to be
entered, an order denying plaintiff's motion for new trial; that neither the judge, his clerk, nor
the attorneys for defendants gave plaintiff or affiant any notice, verbal or written, of the
decision and order denying the motion; that on several occasions affiant conversed with the
judge, on two of which the judge inquired of affiant as to the status of the settlement of the
case, but said nothing to affiant of having made an order denying plaintiff's motion for new
trial, and affiant remained in utter ignorance thereof until he was informed by plaintiff on
August 26, 1927, that she had just been advised that an order denying the motion had been
made by the judge on June 28, 1927; that on September 1, 1927, affiant requested Prince A.
Hawkins, one of the attorneys for defendants, to stipulate that the court make an order
extending time in which to serve and file a bill of exceptions; that the request was refused by
Mr. Hawkins, who referred affiant to the judge; that thereupon affiant communicated with the
judge, and also forwarded to him a blank form of order, extending the time to September 30,
1927, in which to serve and file a bill of exceptions; that the judge, in answer to the
communication, referred affiant to the attorneys for the defendants for a stipulation agreeing
to the entry of the order; that affiant again requested of Mr. Hawkins such stipulation, which
was refused, with the statement that affiant was authorized to say to the judge that Mr.
Hawkins did not object to the entry of the order; that thereafter affiant again communicated
with the judge, and on September 13, 1927, the clerk of the court informed affiant that on that
day the judge had refused to extend the time in which to serve and file a bill of exceptions.
No counter affidavit was filed.
Counsel for the plaintiff contends that, upon the showing made by the uncontradicted facts
contained in his affidavit, this court, in furtherance of justice, should deny the motion to
dismiss the appeal from the order denying plaintiff's motion for new trial. On the other hand,
counsel for the defendants insist that, where necessary steps are not taken within the time
required by statute, and the time has expired, the district court loses jurisdiction to enter an
order extending the time to serve and file a bill of exceptions after such time has expired.
Caldwell v. Wedekind Mines Co., 50 Nev. 366, 261 P. 652; Joudas v. Squire, 50 Nev. 42,
249 P. 1068; Water Co. v. Belmont Dev. Co., 49 Nev. 172, 241 P. 1079; E. Reinhart Co. v.
Oklahoma G. M. Co., 48 Nev. 32, 226 P. 902, 233 P. 842; Shirk v. Palmer, 48 Nev. 451, 232
P. 1083, 236 P. 678, 239 P. 1000. These authorities do not specially hold that, where a proper
and well-grounded application is made invoking the jurisdiction of the court to relieve a party
of the consequences of his default, the court has no power, under any circumstances, to
relieve a party of such default.
It is held, under statutes substantially the same as section 142 of our civil practice act (sec.
5084, Rev. Laws), that district courts may allow and settle bills of exception after statutory
time has elapsed, if it appears that the party seeking settlement failed to present same within
the time fixed by statute, through excusable neglect. Sherman v. Southern Pacific, 31 Nev.
285, 102 P. 257; 2 Cal. Juris. (Appeal and Error), sec. 293; 4 Corpus Juris, 291. But by this
observation we do not wish to be understood as committing ourselves upon the question as to
whether or not plaintiff is entitled to relief in the lower court under the section referred to.
2. Pursuant to our former decisions, we conclude that the transcript as a bill of
exceptions, not having been served and filed within the time required by the statute,
cannot be considered by this court upon plaintiff's appeal from the order denying her
motion for new trial, and, there being nothing before the court upon which it can be
determined whether the court below erred in denying plaintiff's motion for new trial, it
follows that the appeal from said order must be dismissed.
the transcript as a bill of exceptions, not having been served and filed within the time required
by the statute, cannot be considered by this court upon plaintiff's appeal from the order
denying her motion for new trial, and, there being nothing before the court upon which it can
be determined whether the court below erred in denying plaintiff's motion for new trial, it
follows that the appeal from said order must be dismissed.
3. Upon the authority of Joudas v. Squire, supra; Water Co. v. Belmont Dev. Co., supra;
McGuire v. Ehrlich, 49 Nev. 319, 245 P. 703, the respondents' motion to strike the papers,
documents, and files specified therein must be sustained, for the reason that they constitute no
part of the judgment roll, as defined by section 5273, Rev. Laws, and, not being incorporated
in any bill of exceptions, they cannot be considered, and should be stricken. The fact that they
are certified by the clerk is immaterial. Bowers v. Charleston Hill Nat. Mines, 50 Nev. 99,
251 P. 721.
The motion to dismiss the appeal taken from the order denying plaintiff's motion for new
trial and the motion to strike are sustained.
It is so ordered.
____________
50 Nev. 433, 433 (1928) State v. Diamond
STATE v. DIAMOND
No. 2762
March 6, 1928. 264 P. 697.
1. RapeSexual Penetration of Body of Female Under Statutory Age by Male 16 Years Old
or Over Constitutes Statutory Rape.
Sexual penetration of the body of a female under statutory age by a male 16 years old or over
constitutes, under Rev. Laws, secs. 6443, 7171, statutory rape.
2. Criminal LawProsecutrix's Testimony Defendant Had Sexual Intercourse with Her
Held Not Conclusion But Proof, Without Requiring Details.
In prosecution for statutory rape, under Rev. Laws, secs. 6443, 7171, 16 year old prosecutrix's
testimony that defendant had sexual intercourse with her held not mere conclusion but competent proof
thereof, without requiring detailed testimony of sexual act; sexual intercourse meaning actual contact of
the sexual organs of a man and a woman and an actual penetration into body of the latter (citing Words
and Phrases, First Series, Sexual Intercourse).
3. RapeProsecutrix's Testimony May be Sufficient to Sustain Conviction for Rape Without
Corroboration.
There is no rule requiring testimony of prosecutrix in rape case to be corroborated, and her
testimony, standing alone, may be sufficient to sustain conviction.
4. RapePhysicians's Testimony that He Examined Prosecutrix and Found Condition that
Could Have Been Caused by Sexual Intercourse Held Corroborative of Prosecutrix's
Testimony.
Physician's testimony that he examined prosecutrix and found condition that could have been caused
by sexual intercourse held corroborative of prosecutrix's testimony, in prosecution, under Rev. Laws,
secs. 6443, 7171, for statutory rape.
5. RapeDefendant's Opportunity to Commit Statutory Rape May Be Given Weight in
Considering Truth of Prosecutrix's Testimony.
In prosecution for statutory rape under Rev. Laws, secs. 6443, 7171, defendant's opportunity to
commit the crime may be given weight in jury's considering truthfulness of prosecutrix's testimony.
6. RapeEvidence Held Sufficient to Sustain Conviction of Statutory Rape.
Evidence held sufficient to sustain conviction of defendant, under Rev. Laws, sec. 6443, 7171, of
statutory rape.
Rape33 Cyc. p. 1424, n. 71; p. 1491, n. 52; p. 1496, n. 82, 84; p. 1497, n. 86.
Pete Diamond or Diamondouros was convicted of statutory rape, and he appeals.
Affirmed.
Chandler & Quayle, for Appellant:
The record shows that the state failed to prove, not only that this defendant had had sexual
intercourse with the prosecutrix, but that any one whatever had so had intercourse. Medical
testimony not sufficiently supported by other facts. Vol. 22, R. C. L., p. 1220, sec. 54.
There being only the prosecutrix's bald statement that appellant had sexual intercourse with
her, and it not being sufficiently shown that she knew the meaning of the words sexual
intercourse. The state's only medical witness utterly failed to place himself within the
category mentioned in the language of 22 R. C. L., p. 1220, sec. 54, of testimony properly
received to prove the corpus delicti, not giving his opinion that the condition found was due
to sexual intercourse.
M. A. Diskin and Wm. J. Forman, for Respondent:
The law does not require that this character of crime be proved in any precise words. It is
sufficient if the proof shows the consummation of the criminal act. See People v. Pernor, 115
Mich. 692; People v. Preston, 127 P. 660.
The words sexual intercourse denote a final consummation of the offense. State v.
Frazier, 39 P. 819.
In the absence of statute, the testimony of the prosecutrix alone is sufficient to make out a
case for the jury. People v. McQueery, 110 P. 210; People v. Preston, 127 P. 660; People v.
Currie, 117 P. 941; State v. Brown, 116 P. 508; Chaney v. Comm., 149 SW. 923.
The testimony of the medical witness that the condition he found present as to the sexual
organs of prosecutrix was one which was usually due to sexual intercourse is circumstantial
evidence of the commission of the crime, and its weight is a question for the jury.
State v. Depoister, 21 Nev. 118. In that case the supreme court of this state also held that the
slightest proof of the commission of the offense will justify the judge in submitting the
question of fact to the jury, and no form of words are necessary to prove the commission of
the crime.
OPINION
Appellant was convicted of the crime of statutory rape, alleged to have been committed on
or about June 14, 1926. He insists that the evidence is not sufficient to support the conviction.
The following is a summary of the salient facts established at the trial:
During the latter part of the month of December, 1925, and for about six months
thereafter, the prosecutrix, a girl 16 years of age, and appellant, 27 years of age, were
employed in a grocery store in the town of Ruth. A friendship grew up between them which
finally developed into a love affair. The girl knew that her parents were to be away from
home on the night of the 14th of June. She informed appellant of this, and they agreed to meet
at her home on that night. Appellant kept his appointment and threw a rock on the house to
notify the girl of his presence. She came out and met him at a place a short distance from the
house and remained with him for about an hour. She testified that appellant had sexual
intercourse with her at this meeting.
1. Appellant admitted the circumstances of the meeting, but denied her testimony as to the
commission of the offense. The testimony of the prosecutrix and her parents, and her birth
certificate introduced in evidence, established the fact that she was under the statutory age of
consent when the offense was alleged to have been committed. This fact, and the fact of
sexual intercourse or sexual penetration, when the person committing it is of the age of 16 or
upwards, constitutes the offense of statutory rape. Stats. 1919, p. 439, c. 234; sections 6443,
7171, Rev. Laws of Nevada.
2. Appellant contends that the testimony of the prosecutrix, in which she declared that he
had sexual intercourse with her, is not competent proof of the act denounced by the statute. It
is characterized as a statement by prosecutrix of a conclusion, not supported by her testimony
as to any physical act, and uncorroborated by other testimony or evidence. We think her
testimony in this regard is the statement of an ultimate fact, and competent to prove this
essential element of the corpus delicti.
Sexual intercourse, judicially defined, means actual contact of the sexual organs of a
man and woman and an actual penetration into the body of the latter. 7 Words and Phrases,
First Series, p. 6459; State v. Frazier, 54 Kan. 719, 39 P. 819; Rev. Laws, sec. 6443.
The failure of the prosecutrix to testify to any physical act showing, or tending to show,
actual penetration, is, at the most, the omission of a mere detail comprehended within a term,
the meaning of which is common knowledge.
That the prosecutrix had such common knowledge may be inferred from her testimony in
which she said she knew the meaning of the words sexual intercourse. Her knowledge of
the fact she testified to may also be inferred from the following on cross-examination:
Q. On the 14th of June, the night you met Pete on the hill, the night which you say you, at
his request, had sexual intercourse with him, did you yield willing to his inquiries? A. I put
up a fight for a little while; I didn't give in at first.
Q. In what way did you fight? It was a mild resistance? You yielded willingly ultimately?
A. No; I did not.
The prosecutrix testified in direct terms that the appellant had sexual intercourse with her,
and that she knew the meaning of the term she used to describe the act. We know of no rule
requiring the prosecution to elicit from a prosecutrix all or any of the revolting details of the
conduct of the defendant to describe the crime of rape.
crime of rape. Delicacy in this regard is commendable so long as the jury is not left in doubt
as to the fact sought to be established by the testimony of the witness. If appellant or his
counsel thought that she did not understand what she was talking about, cross-examination
could easily have revealed the fact. But there was no cross-examination on this phase of her
testimony, other than as stated above. In this case, as was said in People v. Preston, 19 Cal.
App. 675, 127 P. 660:
No attempt was made on cross-examination to show that she did not know the true import
of the words sexual intercourse,' and it must be assumed that, when she declared that she did,
she knew precisely the true significance of her answer to that effect.
3. There is no rule requiring the testimony of a prosecutrix in a rape case to be
corroborated. It is sufficient, standing alone, to sustain a conviction. We do not wish to
intimate that a case could not arise in which the other circumstances in evidence might, as a
matter of law, be enough to destroy the credibility of the complaining witness. We find no
such circumstances in this case.
4. But it is not fairly correct to say that the testimony of the prosecutrix is not
corroborated. Dr. G. R. Smith, a witness in behalf of the state, testified, in substance, that he
made an examination of the girl on July 2, 1926, and that he found a condition that could
have been caused by sexual intercourse. Such testimony is deemed corroborative. State v.
Depoister, 21 Nev. 107, 25 P. 1000; People v. Crowley, 102 N. Y. 234, 6 NE. 384. The
weight of it is for the jury.
5. The opportunity the appellant had to commit the offense was, we think, under the
circumstances surrounding it, a matter to which the jury had a right to attach some weight in
considering the truthfulness of her story. He went to her home after night, when he knew here
parents were to be away, signaled to her to come out of the house where her younger brothers
and sisters were, to the place where he was stationed on the hillside some distance from the
house, and there remained with her an hour or more.
the hillside some distance from the house, and there remained with her an hour or more.
6. The evidence in the case places it beyond the power of the court to disturb the verdict.
We have examined all the objections based on rulings of the lower court in the allowance
or rejection of testimony, and find no error.
____________
50 Nev. 439, 439 (1928) Memorandum Decisions
MEMORANDUM DECISIONS
____________
SMART v. VALENCIA
No. 2728 (See 49 Nev. 411)
December 7, 1926.
Per Curiam:
Rehearing denied.
____________
STATE v. TONOPAH EXTENTION M. CO.
No. 2711 (See 49 Nev. 428)
May 4, 1927.
Per Curiam:
Rehearing denied.
____________
SPRINGMEYER v. IRRIGATION DISTRICT NO. 1
No. 2660 (See 50 Nev. 80)
January 13, 1928.
Per Curiam:
Rehearing denied.
____________
NENZEL v. ROCHESTER SILVER CORPORATION
No. 2756 (See 50 Nev. 352)
February 8, 1928.
Per Curiam:
It is ordered that the petition for rehearing be denied, since the court is entirely satisfied
with its former opinion, 50 Nev. 352, 259 P.632, as to the matters presented on original
submission, and as to the new points urged they cannot be now considered. Pedroli v. Scott,
47 Nev. 313, 221 P.241, 224 P.807, 31 A. L. R. 841.
Sanders, C. J. (dissenting):
I concurred only in order made herein. Upon consideration of the petition for rehearing I
entertain serious doubt as to the correctness of the point decided, that water rights are
realty, subject to unlawful detainer under Revised Laws, sec. 5588, and therefore I dissent
from the order denying the petition for rehearing.
____________
WILSON v. RANDOLPH
No. 2786 (See 50 Nev. 371)
March 6, 1928. 264 P. 697.
In the petition for a rehearing, counsel for appellant insists earnestly that a murderer cannot
inherit from his victim. We are aware of cases expressing this rule, some of which have been
cited in the petition. They represent, however, a minority view, and, in our opinion, trench
upon legislative power. The majority rule is to the contrary.
The weight of authority is to the effect that, in the absence of a statute providing that
murderers shall not inherit the property of their victims, the courts cannot except murderers
from the operation of the statutes of descent. The theory of these cases is that the horror and
repulsion caused by such an atrocity do not warrant the court in reading into a plain statutory
provision an exception which the statute in no way suggests. 9 R. C. L. pp. 47, 48.
Our statutes of descent contain no such exception, and it is beyond the power of this court
to supply it.
A rehearing is denied.
____________ FIRST NAT.
FIRST NAT. BANK OF LOVELOCK v. ROGERS
No. 2766 (See 50 Nev. 325)
June 5, 1928.
Per Curiam:
Rehearing denied.
Ducker, J.: I dissent.
____________
PARDINI v. CITY OF RENO
No. 2768 (See 50 Nev. 392)
June 5, 1928.
Per Curiam:
Rehearing denied.
Ducker, J.: I dissent.
____________
In Memoriam
____________
Charles Henry Belknap
50 Nev. 445, 445 (1928) Memorial to Charles Henry Belknap
PROCEEDINGS
IN THE
SUPREME COURT OF THE STATE OF NEVADA
Monday, November 15, 1926.
PresentHon. B. W. Coleman, Chief Justice;
Hon. J. A. Sanders, Associate Justice;
Hon. E. A. Ducker, Associate Justice;
Committee, and Officers of the Court.
The committee heretofore appointed to draft appropriate resolutions expressing the
sorrow of the Court and Bar due to the death of Honorable Charles Henry Belknap, formerly
a Chief Justice of this Court, presented the following:
MEMORIAL
____________
CHARLES HENRY BELKNAP
Honorable Charles Henry Belknap, for many years an honored and highly respected
member of this Court, tranquilly passed on to a higher life from his home in San Francisco,
California, on October 6, 1926.
Judge Belknap was the second son of Alfred Alden and Caroline Lucinda Belknap,
and was born at Newburg, New York, on July 20, 1841. His immediate ancestors were of
pioneer American stock, and he inherited their sterling virtues and love of country and its
institutions. He acquired a liberal academic education and thoroughly qualified himself for a
useful life as a member of the legal profession.
He removed from the State of New York to Nevada in 1865, and located at Austin
where he practiced law for a few years, and then went to Carson City where he became
Secretary to Governor L. R. Bradley. On February 25, 1873, at Carson City, he married
Virginia Bradley, the daughter of Governor Bradley, a noble and talented woman who
reflected both the steadfast character and the talents of her honorable father, and who
predeceased her well-loved husband.
predeceased her well-loved husband. They are survived by their affectionate and worthy
children, Mrs. Caroline Belknap Brown, Virginia, Dita, and Alden Belknap, all residing
together in San Francisco, California.
Judge Belknap practiced law for about six years at Virginia City, Nevada, in
partnership with that very able and brilliant member of the pioneer Nevada bar, Hon. Charles
E. De Long. He also served a term as Mayor of Virginia City.
In 1872 Judge Garber resigned as Justice of the Nevada Supreme Court and Gov.
Bradley appointed Judge Belknap to succeed him until the next election, at which time he was
defeated by Judge Earll. The people of Nevada, however, recalled Judge Belknap to the
Supreme Bench when they elected him in 1880 in preference to that able and coast-wide
distinguished jurist, Hon. W. H. Beatty.
Judge Belknap was reelected to the Nevada Supreme Bench in 1886, 1892, and in
1898, and retired therefrom on January 1, 1905. In all he served the people of Nevada as a
member of its highest tribunal for the unusually long period of twenty-six years.
A review of the many decisions written by Judge Belknap reveals a conciseness of
expression and a lucidity of thought that challenges the admiration of all lovers of unadorned
truth. In no instance did he attempt to embellish either statements of fact or declarations of
juridical principles with flights of rhetoric. While his opinions were almost laconic in brevity,
yet they clearly and correctly applied all of the necessary legal principles essential for a
proper solution of the controverted issues. His integrity was spotless and his courage was
unwavering. he did not hesitate on several occasions to write opinions running counter to
popular currents of public sentiment. On the bench he knew no friends and off the bench he
knew no enemies.
In private life he was always an urbane, courteous, and sympathetic gentleman and
friend, and in domestic life he was an ideal husband and father.
He was an honor to the State of Nevada whose people he so long and so faithfully
and efficiently served, and he leaves us of the Nevada bench and bar very great debtors
for a life well worthy of our earnest emulation.
he so long and so faithfully and efficiently served, and he leaves us of the Nevada bench and
bar very great debtors for a life well worthy of our earnest emulation.
It is the recommendation of your committee that this memorial tribute be entered in
the minutes of this Court and that an engrossed copy thereof be forwarded to Judge Belknap's
daughter, Mrs. Caroline Belknap Brown, now residing at 75 West Clay Park, San Francisco,
California, and also to the Secretary of the Nevada State Bar Association.
Sardis summerfield,
E. L. Dodge,
Frank H. Norcross,
Alfred Chartz,
J. Poujade.
In addition to the above memorial, members of the committed addressed the Court as
follows:
Sardis Summerfield, Esq.:
If the Court please, Judge Belknap was a member of this bench at the time that I was
admitted to practice in this State. I knew him very well indeed. It would be difficult to forget
the interest that he took, not only in my own case, but to my personal knowledge, in the case
of others, when they were first admitted to the bar, in the way of cheerful well-wished
manifested towards them, and towards myself especially.
As is indicated in the resolution, Judge Belknap possessed to almost a remarkable
degree the happy faculty of condensation. I well remember one of his colleagues, Judge
Hawley, remarking in my presence that Judge Belknap could write more law in one sentence
than most judges could in a page. A review of his decisions clearly shows, every one of
them, the happy faculty of being able to present in concise, brief language the law which was
virtually decisive of the case.
As is also indicated in the resolution, he possessed to a much more than average
extent the courage of a judge to declare the law, regardless of what the consequences
might be.
to declare the law, regardless of what the consequences might be. I remember when he wrote
the decision which permanently settled the law of prior appropriation of water, as being the
law of this State, overruling in express terms the previous decision of this Court in the case of
Van Sickle v. Haynes. Riparianism was declared to be the law of this State, and though he
was criticized to some extent for it, nevertheless the fact was that the people at that time had
almost unconsciously adopted the law of prior appropriation as a matter of custom at the very
time they were criticizing that opinion.
I remember another case where he wrote an opinion which ran decidedly against the
current popular belief, holding an eight-hour law to be unconstitutional.
A review of his decisions will show other cases in which he rose to that high degree of
judicial firmness, disregarding what might be the evanescent reasons of popular sentiment
and adhering to the well-determined principles of the law. The decision of which he is the
author, and which I mentioned before, of making the law of prior appropriation in the use of
water, preceded by several years the legislative declaration making the law of prior
appropriation the law of the use of water in this State. Through Judge Belknap this tribunal
established as the juridical law of this State the law for the use of water, without waiting for
the Legislature to pass a statute to that effect.
Passing from Judge Belknap's juridical career, I allude to the fact that he was a natural
gentleman in the private walks of life. In domestic life, in particular, he was an ideal husband
and father, and I take the liberty at the present time of reading an excerpt from a letter from
his daughter. We all know that those of the family circle are in a better position to judge than
any one else the many attributes of those we well know upon the street and in business
affairs. I read the following excerpt from a letter from Judge Belknap's eldest daughter,
Caroline Belknap Brown. She says: Despite father's long service upon the bench, it was
his family life rather than his public life that really counted.
Despite father's long service upon the bench, it was his family life rather than his
public life that really counted. There never was a truer gentleman. In all his life I never
knew of his saying, doing, or thinking an unfair or unkind thing of anybody. Always
gentle and always kind, during the last years of his life father was very feeble, and at
times seemed to know very little, but there never was a time when he was not showing
kindness in abundance.
Those who were acquainted with Judge Belknap, so far as from my limited
observation ran, can heartily endorse the words which I have just read, coming from the pen
of his daughter.
I do not feel that I can add anything in particular to the resolution which has been read
to the Court. I presume if they are adopted by the Court they will be published in the next
Nevada Supreme Court Report as heretofore has been the custom.
Alfred Chartz, Esq.:
Agreeing with all that has been said in behalf of Judge Belknap, I would like to add a
few words. In 1863 and 1864 the question of the bullion tax loomed large in the
constitutional debate of those two conventions. In 1870 I began as a printer at work on the
Carson Appeal, and I got off the tickets for that election. Governor L. R. Bradley was a
candidate, and F. O. Treadwell, agent of the Virginia City branch of the bank, was a
candidate. It was pretty well known that Mr. Treadwell was against the bullion tax, so-called,
and that Governor Bradley was running to place that tax upon the statute books. It was the
bitterest fight and hottest contest that, I believe, was ever staged in Nevada. Bradley was
elected.
C. C. Goodwin, Joseph T. Goodwin, and Rowland Daggett were the editors of the
Territorial Enterprise, which was then said to be one of the leading newspapers of the Pacific
Coast.
of the Pacific Coast. There was nothing too abusive for these people to say against Bradley
during that election. Nearly all of the papers of the State were published in mining camps and
supported Treadwell, while a very few, scattered far and wide in the farming districts,
supported Bradley. In spite of the terrible opposition and the worst villification that a person
could utter in a newspaper against him, Bradley was elected Governor. He appointed Charles
Henry Belknap as his private secretary, and it was the splendid mental poise I have already
credited him with that had much to do with the passage of the Act imposing a tax on mines,
approved February 28, 1871.
But for this tax this State would have been impoverished. The owners of the mines did
nothing for Nevada. They were very deeply interested in avoiding taxation, although they
were costing the government more than anybody else for their protection. For their legal
protection they looked to the courts; their children filled the schools; their offenders filled the
prisons, principally. They were rough. I lived in these camps in the early days until I moved to
Carson City, and I know how rough they were. That tax brought to Nevada its main support,
and it was a grave thing for Judge Belknap to come from Virginia City at that time, take his
position and stand as he did in his quiet and effective way, helping Governor Bradley in the
passage of the Act, and I think the circumstance is monumental to his credit. When the mines
were worked out their owners left us nothing but abandoned shafts as monuments to their
memory, with the single exception of Clarence Mackay, who has done so much for this State
as a memory to his father.
Frank H. Norcross Esq.:
May it please the Court. I do not know that there is anything I can add to the splendid
tribute which has been paid to Judge Belknap, both in the resolutions prepared by Mr.
Poujade and Mr. Summerfield, and by the remarks that have been presented here.
I do desire, however, to take advantage of the opportunity in a very few words to add
slightly to the tribute already paid.
My first meeting with Judge Belknap was in July, 1894, upon the occasion of taking
the bar examination for admission to practice before this Court. I notice that Judge Dodge is
also a signer of the memorial, and he and I were admitted at the same time. From that time on
I had the privilege of becoming fairly well acquainted with Judge Belknap in his professional
capacity. Too high a tribute cannot be paid him in that outside of the bench and bar he was an
ideal citizen, a true gentleman, a great character. I had the honor to succeed Judge Belknap
upon this bench. In my opinion he is entitled to the greatest credit, possibly, of any judge who
ever sat upon this bench in the matter of the brevity of his opinions. Your Honors, I think,
will all agree with me that it is much easier to write a long opinion than a short one. I know
that was my experience, and I believe it is the experience of almost all judges. If there is
anything that should appeal to judges, as I know from my practice that it will appeal to the
lawyer, it is that ability in the jurist to reduce to the minimum the principles of the law which
are applicable to the particular case and to make a correct application of these principles.
Judge Belknap, more than any other of our judges, had that facultyof putting in a short and
concise opinion the rules of law applicable to each case. That was the distinguishing
characteristic in his long service as a judge of this Court. He not only rendered a great service
to this Court and to this State, but the simplicity and correctness of his opinions made him a
conspicuous jurist of the Nation. I thank you.
J. Poujade, Esq.:
May it please the Court. No judge and no man ever lived who was perfect nor free
from mistake. No man ever properly fulfilled a public trust for many years without making
some dissatisfaction. The tributes which have been paid by the speakers who preceded me
have been applied justly to Judge Belknap and, although he may have made a few
mistakes, he made many more friends through his fair and fearless decisions.
which have been paid by the speakers who preceded me have been applied justly to Judge
Belknap and, although he may have made a few mistakes, he made many more friends
through his fair and fearless decisions. In private life no one knew him but to love him. He
did not have an enemy.
Chief Justice Coleman:
The resolutions presented will be filed, and it is ordered that they be incorporated in
the minutes of this court, and embraced in the next volume of the Nevada Reports. It is
further ordered that a certified copy be sent to the family of the deceased and to the State Bar
Association. The Court wishes to thank the committee for its extra services rendered in this
matter.
I did not enjoy the pleasure of an acquaintance with Judge Belknap during his official
career, but we are proud of the record which he made for himself, for the Court, and for the
State.
Justice Ducker:
I did not have the pleasure of an extended acquaintance with Judge Belknap. I can
recollect meeting him but once. As in Mr. Summerfield's case, he was a member of this Court
when I was admitted to the bar.
I never heard anything said of him contrary to what has been said this morning. I have
heard many high commendations of Judge Belknap, both as a gentleman and jurist. I have
read many of his opinions. Of course, they speak for themselves. They have that virtue of
conciseness you have mentioned, stating the law without any attempt at show in doing so. His
long tenure of the Supreme Bench is in itself a monument of his fitness and of his personal
and judicial character.
Chief Justice Coleman:
The court at this time will stand adjourned out of respect to the memory of Judge
Belknap.
____________
50 Nev. 455, 455 (1928) Rule I of the Supreme Court
RULE I OF THE SUPREME COURT OF NEVADA
Adopted May 26, 1928. Effective June 30, 1928
____________
1. Attorneys and Counselors.
Applicants for initial license to practice as attorneys and counselors will be examined
semiannually by a board as hereinafter provided. Such examinations shall be held at places to
be fixed by the order of said board at meetings commencing on the first Monday in February
and August of each year.
2. Affidavit of Applicants.
Such applicants must be bona fide residents of this state for a period of at least six months
next preceding the examination mentioned in the preceding paragraph; and applicants must at
least forty-five days before the date of examination file with the clerk of the court an affidavit
in duplicate, one copy to remain on file, and the other to be transmitted to the secretary of the
State Bar of Nevada, stating:
(a) When and where the applicant was born, the various places of his residence, and giving
at least two references, and giving at least two references in each place in which he has
resided since attaining the age of twenty-one years.
(b) Whether or not he has been engaged in business at any time; and, if so, when, where
and the kind of business.
(c) The names and post-office addresses of all persons by whom the applicant has been
employed, for a period of five years immediately preceding the making of his
application.
(d) The applicant's general and legal education, what schools he has attended, the length of
time in attendance at each, and whether or not he is a graduate of any school or schools.
(e) Whether or not applicant has ever applied to any court for admission. If so, when and
where, and the results thereof.
(f) If a naturalized citizen, when and where naturalized.
(g) How long applicant has resided in the State of Nevada, which in any event must be not
less than six months next preceding the examination as above provided; whether he is a
bona fide resident, or whether he came into the state for the sole purpose of being
admitted to practice law.
3. Examination to Embrace.
The examination shall embrace the following subjects:
(a) Course and duration of the applicant's studies.
(b) The history of the United States.
(c) The constitutional relations of the state and federal governments.
(d) The jurisdiction of the various courts of this state and the United States.
(e) The various sources of our municipal law.
(f) The general principles of the common law relating to properly and personal rights
and obligations.
(g) The general grounds of equity jurisdiction and principles of equity jurisprudence.
(h) Rules and principles of pleading and evidence.
(i) Practice under the civil and criminal codes of Nevada.
(j) Remedies in hypothetical cases.
(k) Legal ethics.
4. Applicant Eligible, When.
No applicant shall be eligible for examination until his application shall have been referred
to the State Bar of Nevada, and shall have received the written approval of the board of State
Bar examiners.
5. Examination by Board of State Bar Examiners.
The supreme court hereby confers upon the board of State Bar examiners the power to
examine applicants, pursuant to section 24 of the State Bar Act of 1928. Said board so
empowered shall conduct a written and oral examination of the applicant, the questions and
answers to be reduced to writing.
6. Reports of Board.
When the examination has been completed and reduced to writing the board shall return it
to this court, accompanied by their certificate showing whether or not the applicant is of good
moral character, has attained his majority, and is a bona fide resident of this state. Such
certificate shall also contain the fact that the applicant was examined by the board; that he had
no knowledge or intimation of the nature of any of the questions to be propounded to him
before the same were asked by the board; that the answers to each and all of the questions
were taken down as given by the applicant without reference to any books or outside aid; and
if the board believes that the applicant fulfills the requirements for admission to practice, a
recommendation for such admission.
7. Admission of Attorneys from Other Jurisdictions.
No member of the bar of a sister state or foreign country shall be licensed to practice law
in this state except upon filing with the clerk of this court and with the secretary of the State
Bar of Nevada an affidavit showing that he is a citizen of the United States, or a resident of
this state who has bona fide declared his intention to become a citizen; that he has been
engaged in actual practice in such other state or foreign country for at least three years within
the five years immediately preceding the filing of his application; that he is a bona fide
resident of, and has actually resided and been in this state at least the three months next
preceding such application, and also that he bona fide intends to remain in this state
indefinitely; and whether any disbarment or other proceedings of a like nature have ever been
instituted against him, or whether by resignation, withdrawal, or otherwise, applicant has
terminated or attempted to terminate his office as an attorney, and in either or any of the cases
above referred to, giving full particulars. Also said applicant shall present a certificate of the
clerk of the court in the state or foreign country in which the applicant last practiced,
certifying that the applicant is a member in good standing of the bar of that state or
foreign country,
that the applicant is a member in good standing of the bar of that state or foreign country, and
that no disbarment or other proceedings affecting his standing as an attorney are pending and
undisposed of before the court; which certificate shall be supplemented by a letter from the
secretary of the local bar association of the city or county in which such applicant last resided
(or in case there be no local bar association, from the secretary of the state bar association),
certifying to his good moral character, and by a letter of recommendation from the judge of
the court of record before which he last practiced, together with such other evidence of good
moral character and fitness as may be required by the court; provided, that no practitioner
shall be licensed to practice in this state without examination, unless attorneys who have been
licensed to practice in this state are licensed to practice without examination in the state from
which the applicant holds his license; and provided, further, that in no event shall members
of the bar of a sister state or foreign country which does not require an examination as to legal
qualifications of an applicant as a prerequisite for admission to the bar receive a license to
practice law in this state, except upon taking the regular examination; and provided further
that in no event shall a member of the bar of a foreign country where the common law of
England is not the basis of its jurisprudence be licensed to practice law in this state without
taking the regular examination. This rule is not intended to prevent any court of this state
from permitting a member of the bar of a sister state or foreign country to appear upon motion
and act as counsel in a particular case or matter before such court.
8. Requirements Waived, When.
The requirements of the preceding subdivision 7 as to residence will be waived by the
court only in the case of an applicant whose worth and fitness are well known to the court,
and whose affidavit contains in lieu of the residence requirement a statement that he does
not contemplate the establishment of a residence or office in the State of Nevada for the
practice of the law.
residence requirement a statement that he does not contemplate the establishment of a
residence or office in the State of Nevada for the practice of the law.
9. No Action To Be Taken Without Approval of Board.
No action shall be taken upon any application filed under subdivisions 7 or 8 until same
shall have received the written approval of the board of State Bar examiners.
____________

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