Nevada Reports 1899-1900 (25 Nev.) PDF

25 Nev.
1, 1 (1899)
RULES
of the
Supreme Court of the State of Nevada
Adopted September 1, 1879; amended January 2, 1899;
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rule i.
1. Applicants for license to practice as attorneys and counselors will be examined in
open court on the first day of the term.
Examination for Attorneys-at-Law.
2. The supreme court, upon application of the district judge of any judicial district,
will appoint a committee to examine persons applying for admission to practice as attorneys
and counselors-at-law. Such committee will consist of the district judge and at least two
attorneys resident of the district.
The examination by the committee so appointed shall be conducted and certified
according to the following rules:
Examination by Committee.
The applicant shall be examined by the district judge and at least two others of the
committee, and the questions and answers must be reduced to writing.
No intimation of the questions to be asked must be given to the applicant by any
member of the committee previous to the examination.
Examination to Embrace.
The examination shall embrace the following subjects:

1
The history of this state and of the United States;

2
The constitutional relations of the state and federal governments;

3
The jurisdiction of the various courts of this state and of the United States;

4
The various sources of our municipal law;

5
The general principles of the common law relating to property and personal rights
and obligations; 6 The general grounds of equity jurisdiction and principles of equity
jurisprudence;
25 Nev. 1, 2 (1899) Rules of the Supreme Court

6
The general grounds of equity jurisdiction and principles of equity jurisprudence;

7
Rules and principles of pleadings and evidence;

8
Practice under the civil and criminal codes of Nevada;

9
Remedies in hypothetical cases;

10
The course and duration of the applicant's studies.
3. the examiners will not be expected to go very much at large into the details of
these subjects, but only sufficiently so, fairly to test the extent of the applicant's knowledge
and the accuracy of his understanding of those subjects and books which he has studied.
Examination by Committee.
4. When the examination is completed and reduced to writing, the examiners will
return it to this court, accompanied by their certificate showing whether or not the applicant is
of good moral character and has attained his majority, and is a bona fide resident of this state;
such certificate shall also contain the facts that the applicant was examined in the presence of
the committee; 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 committee, and that the answers to
each and all the questions were taken down as given by the applicant without reference to any
books or other outside aid.
Fee to Be Deposited Before Examination.
5. The fee of thirty-five dollars for license must in all cases be deposited with the
clerk of the court before the application is made, to be returned to the applicant in case of
rejection.
rule ii.
Filing Transcript.
In all cases where an appeal has been perfected, and the statement settled (if there be
one) thirty days before the commencement of a term, the transcript of the record shall be filed
on or before the first day of such term.
rule iii.
Appeal May Be DismissedCan Be Restored.
1. If the transcript of the record be not filed within the time prescribed by Rule II, the
appeal may be dismissed on motion during the first week of the term, without notice. A cause
so dismissed may be restored during the same term, upon good cause shown, on notice to the
opposite party; and unless so restored the dismissal shall be final, and a bar to any other
appeal from the same order or judgment.
unless so restored the dismissal shall be final, and a bar to any other appeal from the same
order or judgment.
How Restored.
2. On such motion there shall be presented the certificate of the clerk below, under
the seal of the court, certifying the amount or character of the judgment; the date of its
rendition; the fact and date of the filing of the notice of appeal, together with the fact and date
of service thereof on the adverse party, and the character of the evidence by which said
service appears; the fact and date of the filing of the undertaking on appeal; and that the same
is in due form; the fact and time of the settlement of the statement, if there be one; and also
that the appellant has received a duly certified transcript, or that the has not requested the
clerk to certify to a correct transcript of the record; or, if he has made such request, that he has
not paid the fees therefor, if the same have been demanded.
rule iv.
Printed Transcripts.
1. All transcripts of record in civil cases shall be printed on unruled white writing
paper, ten inches long by seven inches wide, with a margin, on the outer edge, of not less than
two inches wide. The printed page, exclusive of any marginal note or reference, shall be less
than seven inches long and three and one-half inches wide. The folios, embracing ten lines
each, shall be numbered from the commencement to the end, and the numbering of the folios
shall be printed on the left margin of the page. Small pica solid is the smallest letter, and most
compact mode of composition allowed.
Transcripts in Criminal Cases.
2. Transcripts in criminal cases may be printed in like manner as prescribed for civil
cases; or, if not printed, shall be written on one side only of transcript paper, sixteen inches
long by ten and one-half inches in width, with a margin of not less than one and one-half
inches wide, fastened or bound together on the left sides of the pages by ribbon or tape, so
that the same may be secured, and every part conveniently read. The transcript, if written,
shall be in a fair, legible hand, and each paper or order shall be separately inserted.
To Be Indexed.
3. The pleadings, proceedings, and statement shall be chronologically arranged in the
transcript, and each transcript shall be prefaced with an alphabetical index, specifying the
folio of each separate paper, order, or proceeding, and of the testimony of each witness;
and the transcript shall have at least one blank fly-sheet cover.
script shall be prefaced with an alphabetical index, specifying the folio of each separate
paper, order or proceeding, and of the testimony of each witness; and the transcript shall have
at least one blank fly-sheet cover.
Cannot Be Filed.
4. No record which fails to conform to these rules shall be received or filed by the
clerk of the court.
rule v.
Printing Transcripts.
The written transcript in civil causes, together with sufficient funds to pay for the
printing of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt
thereof, shall file the same and cause the transcript to be printed, and to a printed copy shall
annex his certificate that the said printed transcript is a full and correct copy of the transcript
furnished to him by the party; and said certificate shall be prima facie evidence that the same
is correct. The said printed copy so certified shall also be filed, and constitute the record of
the cause in this court, subject to be corrected by reference to the written transcript on file.
rule vi.
Cost of Typewriting or Printing Transcripts.
1. The expense of printing or typewriting transcripts, affidavits, briefs or other papers
on appeal in civil causes and pleadings, affidavits, briefs or other papers constituting the
record in original proceedings upon which the case is heard in this court, required by these
rules to be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the
usual mode; provided, that no greater amount than twenty-five cents per folio of one hundred
words shall be taxed as costs for printing, and no greater amount than twelve and one-half
cents per folio for one copy only shall be taxed as costs for typewriting. All other costs to be
taxed by the clerk in accordance with the fee bill.
To Serve Cost Bill, When.
2. Either party desiring to recover as costs his expenses for printing or typewriting in
any cause in this court, shall, before said cause is submitted, file with the clerk and serve
upon the opposite party a verified cost bill, setting forth or stating the actual cost of such
printing or typewriting, and no greater amount than such actual cost shall be taxed as
costs.
no greater amount than such actual cost shall be taxed as costs.
Mode of Objecting to Costs.
3. If either party desires to object to the costs claimed by the opposite party, he shall,
within ten days after the service upon him of a copy of the cost bill, file with the clerk and
serve his objections. Said objections shall be heard and settled and the costs taxed by the
clerk. An appeal may be taken from the decision of the clerk, either by written notice of five
days, or orally and instanter, to the justices of this court, and the decision of such justices
shall be final. If there be no objections to the costs claimed by the party entitled thereto, they
shall be taxed as claimed in his cost bill.
Indorsed Upon Remittitur.
4. In all cases where a remittitur or other final order is sent to a district court or other
inferior tribunal, the costs of the party entitled thereto as taxed by the clerk shall be indorsed
upon such remittitur or order and shall be collected as other costs in such district court, or
other inferior court or tribunal, and shall not be subject to re-taxation in such district court or
other tribunal.
rule vii.
To Correct Error in Transcript.
For the purpose of correcting any error or defect in the transcript from the court
below, either party may suggest the same, in writing, to this court, and upon good cause
shown, obtain an order that the proper clerk certify to the whole or part of the record, as may
be required, or may produce the same duly certified, without such order. If the attorney of the
adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,
except when a certified copy is produced at the time, must be accompanied by an affidavit
showing the existence of the error or defect alleged.
rule viii.
ExceptionsDiminution of Record.
Exceptions or objections to the transcript, statement, the undertaking on appeal, notice
of appeal, or to its service or proof of service, or any technical exception or objection to the
record affecting the right of the appellant to be heard on the points of error assigned, which
might be cured on suggestion of diminution of the record, must be taken at the first term
after the transcript is filed, and must be noted in the written or the printed points of the
respondent, and filed at least one day before the argument, or they will not be regarded.
term after the transcript is filed, and must be noted in the written or the printed points of the
respondent, and filed at least one day before the argument, or they will not be regarded.
rule ix.
Substitution in Case of Death.
Upon the death or other disability of a party pending an appeal, his representative
shall be substituted in the suit by suggestion in writing to the court on the part of such
representative, or any party on the record. Upon the entry of such suggestion, an order of
substitution shall be made and the cause shall proceed as in other cases.
rule x.
Calendar to Consist ofUpon Motion.
1. The calendar of each term shall consist only of those cases in which the transcript
shall have been filed on or before the first day of the term, unless by written consent of the
parties; provided, that all cases, both civil and criminal, in which the appeal has been
perfected and the statement settled, as provided in Rule II, and the transcript has not been
filed before the first day of the term, may be placed on the calendar, on motion of either party,
after ten days' written notice of such motion, and upon filing the transcript.
Subdivision 2 is hereby abrogated.
2. Causes shall be placed on the calendar in the order in which the transcripts are
filed by the clerk.
rule xi.
Time for Appellant to Serve BriefRespondent.
1. Within fifteen days after the filing of the transcript on appeal in any case, the
appellant shall file and serve his points and authorities or brief; and within fifteen days after
the service of appellant's points and authorities or brief, respondent shall file and serve his
points and authorities or brief; and within fifteen days thereafter, appellant shall file and serve
his points and authorities or brief in reply, after which the case may be argued orally.
2. The points and authorities shall contain such brief statement of the facts as may be
necessary to explain the points made.
Oral Argument.
3. The oral argument may, in the discretion of the court, be limited to the printed or
typewritten points and authorities or briefs filed, and a failure by either party to file points
and authorities or briefs under the provisions of the rule and within the time herein
provided, shall be deemed a waiver by such party of the right to orally argue the case, and
such party shall not recover cost for printing or typewriting any brief or points and
authorities in the case.
ties or briefs filed, and a failure by either party to file points and authorities or briefs under
the provisions of the rule and within the time herein provided, shall be deemed a waiver by
such party of the right to orally argue the case, and such party shall not recover cost for
printing or typewriting any brief or points and authorities in the case.
4. No more than two counsel on a side will be heard upon the oral argument, except
by special permission of the court, but each defendant who has appeared separately in the
court below may be heard through his own counsel.
Optional in Criminal Cases.
5. In criminal cases it is left optional with counsel either to file written, printed or
typewritten points and authorities or briefs.
When Submitted.
6. When the oral argument is concluded, the case shall be submitted for the decision
of the court.
Stipulation as to Time.
7. The times herein provided for may be shortened or extended by stipulation of
parties or order of court, or a justice thereof.
rule xii.
Printing and Paper to Be Uniform.
In all cases where a paper or document is required by these rules to be printed, it shall
be printed upon similar paper, and in the same style and form (except the numbering of the
folios in the margin) as is prescribed for the printing of transcripts.
rule xiii.
Number of Copies to Be Filed.
Besides the original, there shall be filed ten copies of the transcript, briefs and points
and authorities, which copies shall be distributed by the clerk.
rule xiv.
Opinions Recorded.
All opinions delivered by the court, after having been finally corrected, shall be
recorded by the clerk.
rule xv.
RehearingRemittitur to Issue, When.
All motions for a rehearing shall be upon petition in writing, and presented within
fifteen days after the final judgment is rendered, or order made by the court, and publication
of its opinion and decision, and no argument will be heard thereon.
opinion and decision, and no argument will be heard thereon. No remittitur or mandate to the
court below shall be issued until the expiration of the fifteen days herein provided, and
decisions upon the petition, except on special order.
rule xvi.
Opinion to Be Transmitted.
Where a judgment is reversed or modified, a certified copy of the opinion in the case
shall be transmitted, with the remittitur, to the court below.
rule xvii.
No Paper to Be Taken Without Order.
No paper shall be taken from the court room or clerk's office, except by order of the
court, or of one of the justices. No order will be made for leave to withdraw a transcript for
examination, except upon written consent to be filed with the clerk.
rule xviii.
Writ of Error, or Certiorari.
No writ of error or certiorari shall be issued, except upon order of the court, upon
petition, showing a proper case for issuing the same.
rule xix.
Writ of Error to Operate as Supersedeas.
Where a writ of error is issued, upon filing the same and a sufficient bond or
undertaking with the clerk of the court below, and upon giving notice thereof to the opposite
party or his attorney, and to the sheriff, it shall operate as a supersedeas. The bond or
undertaking shall be substantially the same as required in cases on appeal.
rule xx.
When Returnable.
The writ of error shall be returnable within thirty days, unless otherwise specially
directed.
rule xxi.
To Apply.
The rules and practice of this court respecting appeals shall apply, so far as the same
may be applicable, to proceedings upon a writ of error.
rule xxii.
Time Concerning Writ.
The writ shall not be allowed after the lapse of one year from the date of the
judgment, order, or decree which is sought to be reviewed, except under special
circumstances.
rule xxiii.
Concerning Change of VenueAdditional Notice Given.
Appeals from orders granting or denying a change of venue, or any other interlocutory
order made before trial, will be heard at any regular or adjourned term, upon three days'
notice being given by either appellant or respondent, when the parties live within twenty
miles of Carson. When the party served resides more than twenty miles from Carson, an
additional day's notice will be required for each fifty miles, or fraction of fifty miles, from
Carson.
rule xxiv.
Notice of Motion.
In all cases where notice of a motion is necessary, unless, for good cause shown, the
time is shortened by an order of one of the justice, the notice shall be five days.
rules xxv.
Transcript May Be TypewrittenTo Be Bound in Boards with Flexible Backs.
1. Hereafter all transcripts of the record in any action or proceeding may be
typewritten. The typewriting shall be the first impression, clearly and legibly done, with best
quality of black ink, in type not smaller than small pica, upon a good quality of typewriting
paper, thirteen inches long by eight inches wide, bound in boards with flexible backs, in
volumes of a size suitable for convenient handling and ready reference, and arranged and
indexed as required by the rules of this court. When so typewritten such transcript, in the
discretion of the party appealing, need not be printed; but if printed, all the rules concerning
the same shall still apply thereto.
Briefs May Be Typewritten.
2. Briefs and points and authorities, instead of being printed, may be typewritten upon
the same paper and in the same style and form as is prescribed for typewritten transcripts.
Copy to Be ServedTwo Copies to Be Filed.
3. When so typewritten, but one copy of such transcript need be filed in the case; but
a copy thereof shall be served upon the opposite party. Two copies of the briefs and points
and authorities, viz.: the first impression and a copy thereof, shall be filed with the clerk, and
a copy shall be served upon each opposite party who appeared separately in the court
below.
served upon each opposite party who appeared separately in the court below.
rule xxvi.
Concerning Certificate of Naturalization.
Under no circumstances shall this court, or any of the district courts of the State of
Nevada, hear proof for the issuance of, or issue final papers or certificates of naturalization to
any applicant therefor, at any time within the sixty days immediately preceding any general or
special state election of this state.
rule xxviii.
Payment of Advance Fee RequiredClerk Prohibited from Filing.
No transcript or original record shall be filed or cause registered, docketed or entered
until an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs
of suit. The clerk of the court is prohibited from filing or registering any record without first
having received as a deposit the aforesaid fee.
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25 Nev. 11, 11 (1899) Rules of the District Court
RULES
of the
District Court of the State of Nevada
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rule i.
The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise
ordered.
rule ii.
The clerk of each county of the state shall make three calendars for the district court
of his county, upon one of which he shall place all civil causes at issue upon questions of fact
as soon as the issue is made; upon another of which he shall place all civil causes at issue
upon a question of law, and all motions of every nature, except ex parte motions, as soon as
the issue is made, or as soon as notice of motion is filed; and upon the third of which he shall
place all criminal business of every kind. The names of the attorneys of the respective parties
shall be appropriately placed on such calendars. The clerk shall, on every Saturday, forward
to the presiding judge of the court, and also to the judge who is to sit in his county, a full
statement of the condition of the business of the court as shown by the calendars.
rule iii.
The judge who is to hold court in any county shall give the clerk of such county notice
of the time when court will sit. The clerk shall, immediately upon receiving such notice, give
all the attorneys having business in said court, as shown by the calendar, and also all attorneys
practicing in his county, notice in writing of the time when court will be held. He shall also
give notice of the time of holding court, in some newspaper printed and published at the
county seat of his county, provided it can be done without expense.
court, in some newspaper printed and published at the county seat of his county, provided it
can be done without expense.
rule iv.
Upon the meeting of the court, as provided in Rule III, the law calendar will first be
called and disposed of. The trial calendar will then be called, and causes at issue upon
questions of fact disposed of. When the calendar is called the causes will be set for a time
certain. Parties are expected to be ready to try their causes, whether at issue upon questions of
law or fact, when the calendar is called, and in the order in which they are set. Parties may,
prior to the meeting of the court, fix the day of trial by stipulation in writing, subject to the
approval of the court or judge. The daily business of the court will be disposed of in the
following order:
FirstThe minutes of the previous day's business shall be read, approved, and signed
by the judge.
SecondEx parte motions.
ThirdProbate business, when there is no contest.
FourthIssues arising subsequent to the calling of the calendar shall be set.
FifthTrial of causes, as previously set.
SixthQuestions of law.
rule v.
On each Saturday of any session of court held by any district judge, law questions
shall take precedence, and be heard without previous setting or notice.
rule vi.
When any motion or proceeding has been noticed, or set for a time certain, and for any
cause is not heard at the time appointed, the hearing of the same shall be continued without
further order, and the motion or proceeding shall be placed upon the calendar and disposed of
as other issues thereon.
rule vii.
Any issue of law, and any motion of any nature or kind, may be heard orally by
stipulation of the parties, at any time or place agreed on in the state, with the consent of the
judge first having jurisdiction of the cause, or such questions of law, or motions, as the case
may be, may be submitted on briefs to such judge, with his consent, and the decision may
be filed thereafter at any time, which decision shall fix the time when the decision of the
court is to be complied with; and in all such cases the party who is required to act by such
decision, shall receive due written notice thereof from the opposite party.
briefs to such judge, with his consent, and the decision may be filed thereafter at any time,
which decision shall fix the time when the decision of the court is to be complied with; and in
all such cases the party who is required to act by such decision, shall receive due written
notice thereof from the opposite party. Time for complying with such decision shall
commence to run from the time when service is made in the manner required by the statutes
for service of pleadings in a case; provided, that when the parties are present by their
respective attorneys when the decision is rendered, no notice shall be required.
rule viii.
When a demurrer is interposed in any case, if it be made to appear to the satisfaction
of the court that such demurrer has not been interposed in good faith, but merely for delay,
the defendant shall only answer upon such terms as the court may prescribe, and upon the
filing of the answer, the case shall be set down for trial for as early a day as the business of
the court will permit. In cases other than those above mentioned, ten days shall be allowed to
amend or plead, as the case may be, unless the court by its order fix a different time.
rule ix.
All documents and pleadings, intended for the files of this court shall be on paper
known as legal cap, of good quality, and without interlineations, unless noted thereon by
the clerk at the time of filing. No original pleading or paper shall be amended by making
erasures or interlineations thereon, or by attaching slips thereto, except by leave of court.
Copies of all papers issued from this court, or to be used therein, which are required by law,
or rule of court to be served, shall be upon legal cap paper in a legible hand, and in default of
so doing, the party failing shall be compelled to renew the paper, or be precluded from using
the original, as the court may deem proper.
rule x.
Motions in all cases, except ex parte motions, motions for continuance, and motions
to amend pleadings pending a trial, shall be noticed at least five days before the day specified
for a hearing, and a copy of all papers to be used by the moving party, except pleadings or
other records of the court, shall be served with the notice of motion.
ing party, except pleadings or other records of the court, shall be served with the notice of
motion. The notice of motion shall be in writing, and shall specify the papers to be used and
the names of witnesses to be examined by the moving party, and the grounds upon which the
motion is made; provided, that the court may, upon good cause shown, shorten or enlarge the
time for hearing. For a failure to comply with this rule the motion shall be denied.
rule xi.
Upon reading and filing the notice of motion, with due proof of service of the same,
and of the papers mentioned therein, if no one appears to oppose the motion, the moving
party shall be entitled to have the motion decided. Upon the hearing, the affidavits to be used
by either party shall be endorsed and filed before the affidavits shall be used. The manner of
making motions shall be as follows:
FirstThe moving party shall read the moving papers, or state the contents thereof,
or introduce his oral evidence.
SecondThe party opposing shall then read or state the contents of his opposing
papers, or introduce his oral evidence.
ThirdThe moving party may then read his rebutting papers, or introduce oral
evidence, if admissible under the rules of practice in law or equity. The counsel for the
moving party shall make his argument, to be followed by the counsel of the opposing party,
and the counsel for the moving party may reply.
rule xii.
All motions for the continuance of causes shall be made on affidavit; and, when made
on the ground of absence of witnesses, the affidavit shall state:
FirstThe names of the absent witnesses, and their present residence or abiding
place, if known.
SecondWhat diligence has been used to procure their attendance, or depositions,
and the causes of a failure to procure the same.
ThirdWhat the affiant has been informed and believes will be the testimony of each
of such absent witnesses, and whether or not the same facts can be proven by other witnesses
than parties to the suit, whose attendance or depositions might have been obtained.
nesses than parties to the suit, whose attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of
such absent witnesses could not be obtained.
FifthThat the application is made in good faith, and not for delay merely. And no
continuance will be granted unless the affidavit upon which it is applied for conforms to this
rule, except where the continuance is applied for in a mining case, upon the special ground
provided by statute. A copy of the affidavits upon which a motion for a continuance is made,
shall be served upon the opposing party as soon as practicable after the cause for the
continuance shall be known to the moving party. Counter affidavits may be used in
opposition to the motion. No amendments or additions to affidavits for continuance will be
allowed after they have been read, and no argument will be heard on motions for a
continuance, except such as relate to the sufficiency of the affidavits read on the hearing.
rule xiii.
If the attorney or counsel of either party offers himself as a witness on behalf of his
client, and gives evidence on the merits of the cause, he shall not argue the cause, or sum it up
to the jury, without the permission of the court.
rule xiv.
No attorney will be received as surety on any bond or recognizance to be filed or
entered into in any action or proceeding in this court.
rule xv.
A party making application for a commission to take the deposition of a witness out of
the state, shall serve with the notice of such application, a copy of the direct interrogatories;
and, at least one day before the hearing of the application, the adverse party shall serve upon
the moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shall
be settled at the time of hearing the application, unless the court or judge otherwise direct;
provided, the parties may agree to the interrogatories without submission to the court or
judge, or may stipulate that the depositions may be taken without written interrogatories.
rule xvi.
When a deposition is received by the clerk, he shall endorse upon the envelope the
time of receiving it, and immediately file it with the papers of the case in which it was taken;
and at any time afterward, upon the application of any attorney in the case, he shall open the
same, and endorse upon the envelope the time of opening, and the name of the attorney upon
whose application it was opened, and shall then file the deposition.
rule xvii.
In cases where the right to amend any pleading is not of course, the party desiring to
amend shall serve, with the notice of application to amend, an engrossed copy of the
pleading, with the amendment incorporated therein, or a copy of the proposed amendment,
referring to the page and line of the pleading where it is desired that the amendment be
inserted, and, if the pleading were verified, shall verify such amended pleading, or such
proposed amendment, before the application shall be heard.
rule xviii.
The party moving to strike out any part of a pleading shall, in the notice of motion,
distinctly specify the part asked to be stricken out.
rule xix.
No paper or record belonging to the files of the court shall be taken from the office
and custody of the clerk, except upon the special order of the judge in writing, specifying the
record or paper, and limiting the time the same may be retained; but in no case shall original
documentary evidence be taken from the office of the clerk.
rule xx.
If the undertaking required before issuing a writ of attachment is shown to the
satisfaction of the court or judge, upon proper notice, to be insufficient to secure the party
whose property is attached, against damages, the court or judge may require an additional
undertaking to be filed, and if not filed, the attachment shall be dissolved. No attachment
shall be dissolved by reason of any defect in the attachment papers that can be amended
without affecting the substantial rights of the parties.
papers that can be amended without affecting the substantial rights of the parties.
rule xxi.
Upon a reference to try all the issues, both of fact and law, and to report a judgment
thereon, the referee shall set forth in his report the facts found and conclusions of law
separately, and shall, upon the day when his report is filed, serve upon the respective parties,
or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of
notice and motion for new trial shall not be deemed concluded until such notice is served.
rule xxii.
When an appeal is perfected and a proper undertaking to stay proceedings is filed, it
shall stay all further proceedings in the court below, upon the judgment or order appealed
from, or upon the matter embraced therein; and if an execution or other order shall have been
issued to the sheriff, coroner or elisor, he shall return the same, with the cause therefor, and
his proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate,
under the seal of the court, of the perfecting of the appeal. The certificate shall state the title
of the action, the filing and service of the notice of appeal and the date of such filing and
service, together with the filing and approval of the undertaking staying all proceedings, and
the date of such filing and approval; and such certificate shall operate as a supersedeas of the
execution, or a vacation of the order.
rule xxiii.
If, in an action to foreclose a mortgage, the defendant fails to answer within the time
allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the
answer, the court may make an order referring it to some suitable person as referee, to
compute the amount due to the plaintiff, and to such of the defendants as are prior
incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged
premises can be sold in parcels, if the whole amount secured by the mortgage has not become
due. If any of the defendants have been served by publication, the order of reference shall also
direct the referee to take proof of the facts and circumstances stated in the complaint, and to
examine the plaintiff, or his agent, on oath, as to any payments which have been made,
and to compute the amount due on the mortgage, preparatory to the application for
decree of foreclosure.
plaint, and to examine the plaintiff, or his agent, on oath, as to any payments which have been
made, and to compute the amount due on the mortgage, preparatory to the application for
decree of foreclosure.
rule xxiv.
When an order shall be made enlarging the time to file a statement or affidavits on
motion for new trial, the adverse party shall have the same number of days to propose
amendments or file counter affidavits as was allowed by such order to file such statement or
affidavits.
rules xxv.
When an motion for a new trial is made in a cause tried before a referee, the statement
shall be settled by the referee.
rule xxvi.
No stay of execution upon motion for a new trial shall be granted or allowed, nor
execution or other proceeding be stayed in any case, except upon the giving of a good and
sufficient undertaking, in the manner and form as other undertakings are given, to be
approved by the judge, with at least two sureties, for the payment of the judgment or debt, or
performance of the act directed by the judgment or order, in such amount as may be fixed by
the judge. An order to stay execution, or other proceedings in an action, shall be of no effect
until a copy of notice thereof is served upon the opposite party, or his attorney, and any other
party or officer whose proceedings are to be stayed thereby, unless said attorney or officer be
present at the time of making such order. And if an execution or other order shall have been
issued to the sheriff, coroner, elisor, or other person, he shall return the same with the cause
therefor and his proceedings thereunder endorsed thereon, upon receiving from the clerk a
certificate, under the seal of the court, of the granting of the stay of execution or other
proceedings. The certificate shall state the title of the action, the order staying the execution
or other proceedings, and the date of such order, together with the filing and approval of the
undertaking above required, and the date of such filing and approval; and such certificate
shall operate as a supersedeas of the execution or a vacation of the order.
rule xxvii.
No agreement or stipulation between the parties in a cause, or their attorneys, in
respect to the proceedings therein, will be regarded, unless the same shall be entered in the
minutes in the form of an order, by consent, or unless the same shall be in writing, subscribed
by the party against whom the same shall be alleged, or by his attorney or counsel.
rule xxviii.
No juror shall be excused except in open court; and when a juror is excused, the clerk
shall immediately withdraw his name from the box for the period for which he has been
excused.
rule xxix.
No person shall be appointed guardian ad litem, either upon the application of the
infant or otherwise, unless he be the general guardian of the infant, or an attorney or other
officer of this court, or is fully competent to understand and protect the rights of the infant;
has no interest adverse to that of the infant, and is not connected in business with the attorney
or counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to
the infant for any damage which may be sustained for his negligence or misconduct in
defense of the suit.
rule xxx.
Every attorney, or officer of this court, shall act as guardian of an infant defendant,
whenever appointed for that purpose by an order of the court. He shall examine into the
circumstances of the case, so far as to enable him to make the proper defense, and shall be
entitled to such compensation as the court may deem reasonable.
rule xxxi.
No guardian ad litem shall receive any money or property, or proceeds of sale of real
estate, until he has given security by bond, in double the amount of such property or money,
with two sureties, who shall justify as in other cases, approved by the judge and filed by the
clerk, conditioned for the faithful discharge of his trust.
rule xxxii.
The counsel obtaining any order, judgment or decree, shall furnish the form of the
same to the clerk.
rule xxxiii.
The sheriff shall file with the clerk the affidavit and order on which any arrest is
made, within five days after such arrest is made.
rule xxxiv.
The party against whom judgment is entered shall have two days after service of a
copy of the cost bill in which to move to retax costs.
rule xxxv.
In actions to enforce mechanics' liens, other lienholders coming in under the notice
published by the plaintiff, shall do so by filing with the clerk and serving on the plaintiff, and
also on the defendant, if he be within the state, or be represented by counsel, a written
statement of the facts constituting their liens, together with the dates and amounts thereof,
and the plaintiff and other parties adversely interested shall be allowed five days to answer
such statements.
rule xxxvi.
No motion once heard and disposed of shall be renewed in the same cause, nor shall
the same matters therein embraced be re-heard, unless by leave of the court granted upon
motion therefor, after notice of such motion to the adverse parties.
rule xxxvii.
When an appeal from the justices court to this court has been perfected, and the
papers are not filed in this court within fifteen days from the day of filing the undertaking on
appeal, this court, on the production of a certificate from the justice to the effect that an
appeal has been taken and perfected, but the papers have not been ordered up, or the proper
costs not paid, or upon showing that any other necessary steps have not been taken, shall
dismiss the appeal at the cost of the appellant.
rule xxxviii.
The plaintiff shall cause the papers in a case certified to this court under the
provisions of the 539th section of the practice act, to be filed in the office of the clerk of this
court within fifteen days from the day upon which the order of the justice is made directing
the transfer of the case. If the papers are not so filed the case shall be dismissed, upon filing a
certificate from the justice to the effect that he has certified the papers as required by
said section, but that the same have not been ordered up, or the proper costs paid; or if it
shall appear that such papers are not filed in this court by reason of the neglect of the
plaintiff to pay the fees of the clerk for filing the same.
a certificate from the justice to the effect that he has certified the papers as required by said
section, but that the same have not been ordered up, or the proper costs paid; or if it shall
appear that such papers are not filed in this court by reason of the neglect of the plaintiff to
pay the fees of the clerk for filing the same.
rule xxxix.
During the time the court remains in session it shall be the duty of the sheriff in
attendance to prevent all persons from coming within the bar, except officers of the court,
attorneys and parties to, or jurors or witnesses in the cause or matter being tried or heard. The
sheriff shall also keep the passage way to the bar clear for ingress or egress.
rule xl.
Before the argument begins, counsel shall prepare their instructions, submit them to
the inspection of the opposite party, and then deliver them to the court. The court will hear
objections to instructions, and will, when practicable, settle the instructions in advance of the
argument, and permit counsel to use them when addressing the jury.
rule xli.
When any district judge shall have entered upon the trial or hearing of any cause or
proceeding, demurrer or motion, or made any ruling, order or decision therein, no other judge
shall do any act or thing in or about said cause, proceeding, demurrer or motion, unless upon
the written request of the judge who shall have first entered upon the trial or hearing of said
cause, proceeding, demurrer or motion.
rule xlii.
When an application or petition for any writ, rule or order shall have been made to a
district judge and is pending, or has been denied by such judge, the same application or
motion shall not again be made to the same or another district judge, unless upon the consent
in writing of the judge to whom the application or motion was first made.
rule xliii.
No judge, except the judge having charge of the cause or proceeding, shall grant
further time to plead, move, or do any act or thing required to be done in any cause or
proceeding, unless it be shown by affidavit that such judge is absent from the state, or
from some other cause is unable to act.
any act or thing required to be done in any cause or proceeding, unless it be shown by
affidavit that such judge is absent from the state, or from some other cause is unable to act.
rule xliv.
When a cause shall have been certified by the state land register to the district court
for trial, it shall be the duty of the first applicant, within thirty days after receiving notice of
such certification, to file and serve upon the adverse party a complaint setting forth the facts
upon which he claims to be entitled to the land. The adverse party shall, within ten days after
service of the complaint, file and serve his answer, in which answer he shall set forth the facts
upon which he relies.
rule xlv.
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified or corrected by the court or judge rendering, making or ordering the same, unless
the party desiring such vacation, amendment, modification or correction shall give notice to
the adverse party of a motion therefor, within six months after such judgment was rendered,
order made, or action or proceeding taken.
____________
To the Honorable Judges of the District Court of the State of Nevada:
Your Committee appointed to prepare Rules of Court, submit for your approval and
adoption the foregoing rules, forty-five in number.
TRENMOR COFFIN,
ROBT. M. CLARKE,
R. H. LINDSAY,
W. E. F. DEAL,
H. F. BARTINE,

Committee.
attest: James D. Torreyson, Secretary.
____________
It is hereby ordered that the foregoing rules, forty-five in number, be and they are
hereby adopted as the Rules of Practice of the District Court of the State of Nevada, and that
they be in force in each county thirty days after the date of their filing in the clerk's office
of such counties.
that they be in force in each county thirty days after the date of their filing in the clerk's office
of such counties.
RICHARD RISING,
Presiding District
Judge.
R. R. BIGELOW,
A. L. FITZGERALD,
District
Judges.
____________
25 Nev. 31, 31 (1899)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
APRIL TERM, 1899.
____________
25 Nev. 31, 31 (1899) State v. Noyes
[No. 1547.]
STATE OF NEVADA, ex rel. WILLIAM SCHAW, et al., Relators, v. W. H. NOYES, et al.,
as the City Council of the City of Reno, Respondents.
Municipal CorporationsContracts for ImprovementsMandamus. In pursuance of an advertisement of the
city council of the city of Reno for bids for the construction of a system of city water works, the relators
herein, among others, submitted a bid; before the bids were acted upon an action was commenced against
the city council to enjoin it from letting a contract under any of the bids. Upon the hearing of the
application for a temporary injunction, it appeared that the city council did not intend to accept any of the
bids in the form presented, but that it had resolved to enter into a contract with relator upon the basis of
certain proposed modifications of its bid, as soon as the council was in law, free and unrestrained to do
so, whereupon it was ordered that before executing any such contract a copy of the proposed contract
should be served on the plaintiff in the injunction suit, and that within five days thereafter said plaintiff
might institute such proceedings to restrain the execution thereof as it might be advised. Thereafter, the
council adopted an order approving the proposed contract containing the modifications suggested in the
previous resolution of the council and directing that the contract be executed, as soon as the city council
was, in law, free so to do, which modifications were then, for the first time, consented to by the relator:
Held, that there was no such an acceptance of relator's bid as would, independent of subsequent action,
create any liability, or right of action whatever to compel the city council by mandamus to execute a
contract for the construction of the water works.
25 Nev. 31, 32 (1899) State v. Noyes
Mandamus. Mandamus is never granted in anticipation of a supposed omission of duty, however strong the
presumption may be that the persons whom it is sought to coerce by the writ will refuse to perform their
duty when the proper time arrives, nor will the writ issue unless the relator shows a clear legal right to the
relief demanded.
JudgesInterest in ActionDisqualification. General Statutes (1885), sec. 2464, prohibiting a judge from
acting in any action in which he is interested, does not disqualify a judge, who is a property owner and
taxpayer in the city of Reno, from sitting in a cause to enjoin the city from executing a contract for the
construction of water works, to be paid for with municipal bonds, since, under the act incorporating the
city, the city council is not expressly authorized to tax property within the city to pay the interest and
ultimately redeem the bonds, and it may not be necessary for it to do so under any implied power, for the
reason that the council is authorized to impose rates for the consumption of water.
Original proceeding by the State, on the relation of William Schaw and others, for writ of
mandate to W. H. Noyes and others, constituting the City Council of the City of Reno, to
compel respondents to execute a certain contract for the construction of a system of municipal
water works. E. R. Dodge, Intervenor. Dismissed.
The facts sufficiently appear in the opinion.
R. M. Clarke and J. A. Goodwin, for Relators:
I. The judge who presided at the trial, named in the answer to our petition, was
disqualified under the statute of the state, and was not, being disqualified, competent to
preside in the case, or to make any valid order in or about it. Our statute, in paragraph 2464 of
the General Laws, provides: A judge shall not act as such in an action or proceeding to
which he is a party, or in which he is interested. * * * (Meyers v. City of San Diego, 53 Pac.
434; Hawkins v. Howard, 79 Mich. 642.)
II. Did we appear? Could we appear? Could we waive that point? Are we not permitted a
hearing now in order to maintain and enforce our rights under the law? Are we not permitted
to show that this thing which is sought to be interposed is an order made by a judge who was
disqualified? Can we, who had no opportunity to make the point, be bound by the action of a
judge, who was disqualified, by a decree which is a void decree? Is there any doubt, was there
ever any doubt, that a void instrument can be attacked?
25 Nev. 31, 33 (1899) State v. Noyes
any doubt, that a void instrument can be attacked? Can it be attacked by anybody in any
proceeding? The doctrine of estoppel does not bind us. There is no estoppel here. (79 Mich.
642; Oakland v. Oakland Water Front, 118 Cal. 249; Adams v. Minor, 53 Pac. 815; City of
Austin v. Nalle, 85 Tex. 520; 23 Tex. 105; 49 N. H. 52; Meyers v. San Diego, 53 Pac. 434;
Freeman on Judgments, 4th, ed., vol. 1, sec. 146; High on Injunctions, sec. 1425; Frevert v.
Swift, 19 Nev. 363, 364.)
III. The question as to the authority of a judge who is disqualified to preside in a case
cannot be waived. The parties to a suit, by their most solemn stipulation, can never confer
upon a disqualified judge the power or authority to preside in a case. Judge Cheney, as a
citizen and taxpayer, could have brought the suit. He may as well have been the plaintiff in
the court below as the Reno Water, Land and Light Company. If he had brought the suit, and
had still presided, can there be a pretense that his judgment could have been of any validity;
can there be a pretense that it could have bound anybody; that there can be conferred upon
one of the parties to the suit power to render a valid judgment in that suit? Now, this question
is abundantly decided, and it is in fact a general principle that the jurisdiction of the court, the
power or authority of the court or judge to decide, can never be waived, but can be taken up at
any time; that is one of the things that never can be waived. (Freeman on Judgments, 4th ed.,
vol. 1, sec. 146.)
IV. The city of Reno being a municipal corporation, created by an act of the legislature, is
a creature of the legislature and derives all its powers, rights and franchises from legislative
enactment or statutory implication. (15 Ency. Law, p. 1039; State v. Rosenstock, 11 Nev. 128,
140; Tucker v. Virginia City, 4 Nev. 20, 26; Virginia City v. Chollar-Potosi, 2 Nev. 86.)
V. The act defining the powers and duties of boards of county commissioners has no
application to the powers and duties of the city council of Reno, unless there is something in
the act itself to make it applicable, or something in the general legislation which makes these
powers applicable. The charter itself is the law, and that charter, according to all authorities,
must be strictly construed in determining the power.
25 Nev. 31, 34 (1899) State v. Noyes
power. The city council have no power except that which is conferred. This principle is laid
down in the 2d Nevada and in the 11th Nevada in the words: A municipal corporation
possesses and can exercise such powers only as are expressly conferred by the law of its
creation, and such as are necessary to the exercise of its corporate powers, the performance of
its corporate duties, and the accomplishment of the purpose for which it was created.
VI. Mandamus is a remedy which will lie to compel the city council of Reno to execute
the contract, to prepare and deliver the bonds in pursuance of the terms of the contract.
(Sections 3469 and 3470, General Statutes of Nevada; Mau v. Liddle, 15 Nev. 271, 275;
Humboldt Co. v. Churchill Co., 6 Nev. 30.)
VII. Counsel for plaintiffs does not claim that defendants exceeded their jurisdiction in
refusing to comply with the statute. They only rejected a bid which they were commanded to
accept. Compelling the performance of such duties is the true and only office of the writ of
mandamus. The law makes it their duty to perform this contract, having accepted the bid.
Having entered into the contract, they must perform it; they must deliver these bonds to us; it
is a specific certain thing which they are bound to deliver, and there is no way that that
contract may be performed except by delivering the bonds to us according to the agreement.
They did accept our bid; it was the lowest and best. (Smalley v. Yates, 36 Kan. 519; 33 Ohio
St. 169; 64 Ohio L. 83, sec. 7; 11 Kan. 67; 12 Kan. 127; 33 Kan. 177; 10 Wend. 245; 1 Cow.
510; 5 Hush. 125.)
VIII. It has been contended that the relators have no contract, that there is no contractual
relation existing between the city of Reno and the firm of Schaw, Ingram, Batcher & Co. The
petition sets forth after a preliminary proceeding that the city council advertised for proposals
with plans and specifications for the construction of a water system. It also sets forth that the
firm of Schaw, Ingram, Batcher & Co., in response to these proposals, submitted to the
council of the city of Reno bids and proposals with plans and specifications. That thereafter
the city council accepted the bid of Schaw, Ingram, Batcher & Co. with certain
modifications, which modifications are set forth in the resolution set forth in our petition.
25 Nev. 31, 35 (1899) State v. Noyes
tain modifications, which modifications are set forth in the resolution set forth in our petition.
The council provided that the bid of Schaw, Ingram, Batcher & Co. shall be accepted, and
that a certain reservoir that is provided for in the plans and specifications, and certain pipe in
the city shall be eliminated, and they shall receive a less amount of bonds, which less amount
to be determined by the value of the work eliminated. When the common council made that
elimination, and made that acceptance, Mr. Schaw was in the council chamber, and they
asked him if he accepted those modifications, and he said that he did. At that point there was
a contract. There was a valid and binding contract, one that was entirely executed, the
performance of which would be compelled by the court. (Argent v. Ladd, 16 Cal. 256.)
IX. A contract is the meeting of the minds of the contracting parties when the bid of the
successful bidder is accepted. The statute under which the common council was proceeding in
this matter provided that they should accept the proposal of that bidder who proposed to build
the best system of water works for the least amount of bonds. The citation of authorities in
State v. Sadler, under the statute which provides that the commissioners of the county shall
let the contract to the lowest bidder, presents questions that cannot be raised in this case. Here
we have an entirely different provision of law, an entirely different enabling act from that act
under which they were proceeding in the Sadler case. The legislature here, by conferring
authority under the act, were attempting to get the best system that they possibly could for the
city of Reno. It provided that they should advertise for proposals with plans and specifications
for the construction of that system. They were bringing in the talent of the country, and giving
to the city council of the city of Reno the result of the experience of engineers in the
construction of a system of water works, and that they should accept the best system that was
proposed for the least amount of bonds. The common council at its meeting held on the 2d of
July, when it opened its bids, passed a resolution set forth in that petition, that they accepted
the bid of Schaw, Ingram, Batcher & Co., that being, in their minds, the best bid of all the
bids presented, and the best bid for the least amount of bonds.
25 Nev. 31, 36 (1899) State v. Noyes
the best bid of all the bids presented, and the best bid for the least amount of bonds. They
then assumed contractual relations between the city council and Schaw, Ingram, Batcher &
Co. The city council now refuse to carry out their part of the contract, and we come before
this court and ask for its mandate.
X. It is also contended that the court, by its writ of mandate, will not command the doing
of anything until it is due, until the time has arrived for the execution of a particular act by the
officer that it is intended to command. In this particular instance, it is claimed that the city
council of the city of Reno are not required to execute this contract, or deliver its bond, or go
ahead and fulfill the contract that they have entered into with Schaw, Ingram, Batcher & Co.,
because, in this particular, this firm has a contract that is set up in the petition where it is
provided that they shall not proceed until they are free in the law so to do. Our contention
throughout this case has been that the judgment of the court below is absolutely void; it is
binding upon nobody. If it is a void judgment, it certainly cannot be an excuse of the common
council of the city of Reno for not proceeding to the execution of this contract.
A. E. Cheney, O. J. Smith and Wren & Julien, for Respondents:
I. It will be observed from the record that when this proceeding was commenced there was
and still is pending in this court an action in which is directly involved the validity of the very
contract, the execution of which is here sought to be commanded. It will be also observed that
when this proceeding was commenced the respondents herein were, and still are, enjoined by
the decree of a court of competent jurisdiction from doing the identical thing which the
alternative writ issued herein commands them to do. It will be further remembered that the
validity of that injunction is the question involvedin fact, the only question in that action,
now pending in appeal to this court. Therefore, the main issue presented by this proceeding,
and which is raised by the demurrer to the answer of the respondent is: Will this court, by its
writ of mandate, compel the respondents, as municipal officers, to carry out a resolution
by which they agreed to enter into a contract for public improvements, when there is
pending and undetermined in this court, and being prosecuted by the respondents, an
appeal from a judgment and decree of a court of competent jurisdiction, especially
enjoining the respondents, as such officers, from doing the very thing which the
requested writ would order them to do?
25 Nev. 31, 37 (1899) State v. Noyes
Will this court, by its writ of mandate, compel the respondents, as municipal officers, to carry
out a resolution by which they agreed to enter into a contract for public improvements, when
there is pending and undetermined in this court, and being prosecuted by the respondents, an
appeal from a judgment and decree of a court of competent jurisdiction, especially enjoining
the respondents, as such officers, from doing the very thing which the requested writ would
order them to do?
II. The alternative writ commands the respondents to do two things, viz.: execute the
contract, and execute and deliver the bonds. As to the bonds it is plain there is no present
right to have them executed or delivered. Until there has been an execution of the agreement
by both parties, and a presentation and approval of the bond required by the contract of the
relators, there is no duty on the part of the respondents to execute or deliver the bonds of the
city of Reno.
III. Mandamus is never granted in anticipation of a supposed omission of duty, however
strong the presumption may be that the persons whom it is sought to coerce by the writ will
refuse to perform their duty when the proper time arrives. It is, therefore, incumbent on the
relator to show an actual omission on the part of the respondent to perform the required act,
and since there can be no such omission before the time has arrived for the performance of
the duty, the writ will not issue before that time. In other words, the relator must show that
the respondent is actually in default in the performance of a legal duty then due at his hands
and no threats or predetermination can take the place of such default before the time arrives
when the duty should be performed, nor does the law contemplate such a degree of diligence
as the performance of a duty not yet due. (State v. Rising, 15 Nev. 164; State v. Piper, 11
Nev. 233; 2 Spell. Extr. Relief, 1385; High, Extr. Rem., sec. 12.)
IV. The proceedings should be dismissed because the alternative writ cannot be made
peremptory, as it includes the doing of something to which the respondents are not yet
entitled, and seeks to command before there has been a violation of any present legal right,
and the alternative writ must stand or fall as a whole.
25 Nev. 31, 38 (1899) State v. Noyes
lation of any present legal right, and the alternative writ must stand or fall as a whole. (High,
Extr. Leg. Rem., sec. 548.)
V. The writ of mandate lies only to compel the performance of an act which the law
specially enjoins as a duty resulting from an office, trust or station. (Gen. Stats. of Nev.
3469.) The object of the writ is to compel the performance of official duties created by
statute, or necessarily incident to office, and does not include rights arising from contract
obligations, especially where the contract is executory. (Merrill on Mand., sec. 16; 2 Spell.
Extr. Relief, sec. 1379, 1438; 14 Am. & Eng. Ency. 104; State v. Z. & M. Turnpike Co., 16
Oh. St. 308; High, Extr. Leg. Rem., sec. 25; State v. Bohannon, 39 Mo. 375; Benson v. Paull,
6 El. & Bl. 273; Marshall v. Clark, 22 Tex. 23; Badger v. City of New Orleans, 21 So. Rep.
870.)
VI. The writ is rarely, if ever, issued to compel the making of a contract for public
improvements, as the letting of such contracts necessarily involves large discretionary
powers. (2 Spell. Extr. Relief, sec. 1469; 14 Am. & Eng. Ency. Law, p. 150; State v. Comrs.
of Hamilton Co., 30 N. E. 785.) Especially if there is a doubt as to the mode in which the duty
is to be performed. (High, Extr. Leg. Rem., sec. 423; State v. Washington County, 2 Chand.
247.)
VII. That a judgment rendered by a judge who is disqualified is void, is not questioned.
(Frevert v. Swift, 19 Nev. 363.) But it is denied in this proceeding that the judge, who tried
the action of the Reno W. L. & L. Co. v. City of Reno, was disqualified, that the relators in this
proceeding, under the pleadings, can raise that question, or that it is a material issue.
VIII. The interest which disqualifies a judge must be direct, certain and pecuniary. It
must occur upon the event of the suit, not result remotely, in the future, from the general
operations of law and government upon the status fixed by the decision. (12 Am. & Eng.
Ency. 46; City of Oakland v. Oakland W. F. Co., 50 Pac. 268; City of Oakland v. Oakland W.
F. Co., 118 Cal. 249.)
IX. The records of this court show that its justices have, without question, sat in tax and
other cases wherein they, as taxpayers, were remotely affected by the result of the
litigation.
25 Nev. 31, 39 (1899) State v. Noyes
taxpayers, were remotely affected by the result of the litigation. If the contention of petitioner
is true, and this contract related to a state, instead of city improvement, there would not be a
qualified judge in any court to restrain the enforcement of a contract no matter how illegal or
fraudulent it might be. If perchance this agreement had been made by the city council of
Carson City, no doubt a majority of this court, under the contention of the petitioners, would
be disqualified from issuing the writ of mandate in this proceeding. The administration of the
law is, and must be, practical, and no remote, contingent or possible interest, which may
affect the judge in common with the taxpayers of the community, will debar his acting any
more than it would disqualify his neighbors as jurymen to try the issues of the fact. While the
city charter provides that the city council shall provide for the payment of the principal and
interest of the bonds to be issued for water works, it also provides that they shall have the
power to provide by ordinance for the distribution of water to the inhabitants of the city upon
such reasonable terms as they shall deem expedient. (Stats. 1897, p. 59, sec. 37.)
X. It is the contention of the city council that municipal water works in the city of Reno
can be made not only self-sustaining but a source of revenue. By reference to the record, it
will be seen, at pages 82, 83, 86 and 87, that the city council, by its answer, assert not only
that the contemplated system of water works will be self-sustaining but that, under the city
charter, no levy could be made in addition to what had already been made, and that no burden
would or could be put upon the water company, or the intervenor as taxpayers, by reason of
letting the proposed contract. Whether the issuance of these bonds will ever result in any
additional burden to the taxpayers is wholly contingent and uncertain, depending upon
whether the power to collect rates is exercised, and the sufficiency of the rate to provide a
sinking fund for the payment of these bonds. While the city council are to provide for their
payment, there is no requirement that the money shall be raised by a tax levy. The grant of a
power to fix water rates, so closely connected with the direction to provide a sinking fund,
clearly associates the end with the means contemplated to accomplish it.
25 Nev. 31, 40 (1899) State v. Noyes
ates the end with the means contemplated to accomplish it. At all events there is no direct and
certain pecuniary advantage or loss which occurs on the event of this suit which makes a
taxpayer disqualified as a judge, because of interest.
XI. Recurring to the main question, we think the authorities clearly show that the writ
does not lie in this case for several reasons: The writ of mandate is a remedy to compel the
performance of a duty required by law, where the party seeking relief has no other legal
remedy and the duty sought to be enforced is clear and indisputable. Both requisites must
concur in every case. (Bayard v. White, 127 U. S. 246-250; International Con. Co. v.
Lamont, 155 U. S. 308.) All the decisions agree that the writ will not issue unless the
applicant shows a clear legal right to the relief demanded. (State v. LaGrave, 22 Nev. 419.)
XII. As stated above the right sought to be enforced must be not only a clear legal duty,
specially enjoined by law, but it must be indisputablei. e., not in disputeand the
pendency of an action in which the existence or legality of the right sought to be enforced is
directly involved, has ever been held sufficient reason for denying the writ. It is not the object
or function of the writ to supplant the ordinary course of the law for the determination of
litigated questions or the correction of judicial errors. (2 Spell. Extr. Relief, secs. 1443, 1485,
1500, 1525; Badger v. City of New Orleans, 21 So. Rep. 870; Oakes v. Hill, 8 Pick. 46; Mills
v. Brevoort, Judge, 47 N. W. 128; Ex Parte Hughe, 114 U. S. 147; People v. Newton, 27 N.
E. 370; French v. South Haven, 48 N. W. 174; Foster v. Angell, 33 Atl. 406; Leavitt v. Judge,
18 N. W. 374; People, ex rel. v. Wiant, 48 Ill. 264; Com. v. People, 99 Ill. 587; People v.
Newton, 11 N. Y. S. 782; State v. City of Mamitowoc, 52 Wis. 423.)
XIII. The writ never lies to compel a party to do an act which he has been enjoined from
doing. (High, Extr. Legal Rem., secs. 23, 259; 2 Spell. Extr. Relief, secs. 1378, 1402; Ohio &
Ind. R. R. Co. v. Comrs. Wyandot Co., 7 Oh. St. 278; State, ex rel. Mills v. Kispert, 21 Wis.
387; Ives v. Murkegon Circuit Judge, 40 Mich. 63; People, ex rel. Humphrey v. Supervisors,
30 Hun, 147; People, ex rel. Sullivan v. Hake, 81 Ill.
25 Nev. 31, 41 (1899) State v. Noyes
540; Ex Parte Fleming, 4 Hill, 581; Livingston v. McCarthy, 20 Pac. 478; Mills v. Brevoort,
Judge, 47 N. W. 128.)
XIV. The granting of the writ is controlled by the sound discretion of the court, especial
care being taken that the writ shall not be the means of enforcing a doubtful right, or injurious
to public interests, determinative of the rights of parties not before the court, or where it
would not be effectual. (2 Spell. Extr. Relief, sec. 1370, 1371, 1372; Redfield v. Windom, 137
U. S. 644; Bayne v. Ryan, 100 Cal. 265, 37 Pac. 707.)
XV. It must be clearly apparent to the court that, even if it is admitted that the action of
the district court in enjoining these respondents from entering into this contract is void,
because of any disqualification of the judge who granted the injunction, there still remains the
controversythe action is still pending in which the validity of this proposed contract is the
issue; that the right of these relators to have this contract extended is still in dispute and the
validity of their claim hereto is still in question.
By the Court, Massey, J.:
Original application for writ of mandate commanding the respondents to execute a certain
contract for the construction of a system of water works, and to compel the president of said
council and the clerk of said city to execute said contract, and to compel said city council to
execute and deliver to the relators certain bonds of said city pursuant to said contract.
The petition, among other matters, recites:
That on the 13th day of September, 1897, the city council of the city of Reno called, by
resolution, an election to be held in the city of Reno on the 7th day of October, 1897, for the
purpose of submitting to the electors of said city a proposition to issue the bonds of said city,
in the amount of $130,000, for the purpose of procuring water and the erection of water
works for the city.
That all necessary steps were taken for holding the election pursuant to said order, by the
giving of due notice thereof, defining the polling places, which notice was published as
required by law.
25 Nev. 31, 42 (1899) State v. Noyes
That in accordance therewith the election was held at the time and in the manner required.
That on the 11th day of April, 1898, a canvass of the votes cast at said election was made by
the city council, from which it was found that a majority of the votes cast were in favor of
said proposition.
That on the 11th day of May, 1898, in pursuance of said election, and in conformity with
law, the city council published a notice to the effect that bids would be received until June 13,
1898, for the purchase of bonds, and also written proposals, with plans and specifications, to
construct a water system for the city of Reno, to be paid for with the bonds of said city, which
bids of proposals should be sealed, and addressed to the proper officer.
That in answer to said notice the relators, on or about the 13th day of June, 1898,
submitted to the city council written proposals, with plans and specifications, to construct a
water system for the city, to be paid for with the bonds of the city, in conformity with the
notice.
That at a meeting of the city council held on the 2d day of July, 1898, the council passed a
resolution accepting the bid of the relators to construct a water system for said city, subject to
certain modifications, which resolution was in the words and figures following, to wit:
Resolved, That it is the sense and judgment of this city council that the bid of Messrs.
Schaw, Ingram, Batcher & Co. to construct a water system for the city of Reno from bar B, on
the Truckee river, composed of the material mentioned in said bid, and of converse patent
lock joints, be accepted, and a contract entered into with the said bidder for such construction
as soon as the city council is, in law, free and unrestrained so to do, subject to the following
modifications: * * *; that Messrs. Torreyson & Summerfield be, and they are hereby directed,
in connection with the committee of water, fire and lights, to draft and submit to this council,
at a special meeting to be held at 8 o'clock p. m. on Tuesday evening, July 5, 1898, a
proposed contract embodying the terms of the foregoing resolution.
That at a meeting of said council held on the 7th day of July, 1898, the said council
adopted the following resolution, to wit: Resolved, That the proposed contract with Schaw,
Ingram, Batcher & Co. for the construction of a water system for the city of Reno, Nevada,
* * * submitted to, and read in the presence of, this city council, be, and the same are
hereby approved, and their execution is hereby agreed upon, to be performed as soon as
the city council is, in law, free so to do."
25 Nev. 31, 43 (1899) State v. Noyes
Ingram, Batcher & Co. for the construction of a water system for the city of Reno, Nevada, *
* * submitted to, and read in the presence of, this city council, be, and the same are hereby
approved, and their execution is hereby agreed upon, to be performed as soon as the city
council is, in law, free so to do.
A copy of the approved contract was fully set out in the petition. By the terms of the
agreement, in part, it is provided that the relators should be paid for their work in bonds of the
city of Reno, bearing interest, as follows: $25,000, or the nearest approximate amount thereto,
at the time of the execution of the agreement; $25,000 at the time of the delivery of all of the
material for the water system at Reno, Nevada; the residue in installments of different
amounts at subsequent dates. The relators, by the terms of the agreement, were required, at
the time of its execution, to make and deliver to the city council a good and sufficient bond,
in the sum of $50,000, conditioned for the faithful performance of the obligations imposed
upon them by agreement.
The other stipulations of the agreement are not material to the determination of the
questions to be decided in this action, and are therefore omitted. There is also an averment
that the relators at the time agreed to all the terms of the proposed contract, and are willing,
and have ever since been willing, to enter into the same; that the relators thereafter demanded
of the city council that it comply with, and act in accordance with, its proposals, and execute
the contract and deliver to the relators the amount of bonds at the time and in the manner
provided in said contract; that the said city council was at the time of the commencement of
this action attempting to let to other persons the contract for the construction of said water
system, in contravention of its acceptance of the bid of the relators; and that the said council
was, at the time of the commencement of the action, in law, free and unrestrained to execute
the contract.
Upon the application, the alternative writ of mandamus issued out of the court, to which
the respondents answered, in effect, that on the 24th day of June, 1898, the Reno Water, Land
and Light Company, a corporation, commenced an action in the Second Judicial District
Court of Nevada against the respondents, as the city council of the city of Reno, to
restrain and enjoin such council from entering into the alleged and proposed contract
with the relators, and from proceeding further therein; that, upon the final hearing and
trial of said action, judgment was rendered by said court in favor of the said corporation
on the 4th day of August, 1S9S, by which judgment and decree the respondents were
forever restrained and enjoined from entering into the proposed alleged contract with
relators, and from proceeding further in the matter; that said judgment, order, and
injunction have never been revoked or modified, and are now in full force, and binding
upon the respondents; that an appeal has been regularly taken from said judgment, and
the same is now pending and undetermined in the supreme court.
25 Nev. 31, 44 (1899) State v. Noyes
against the respondents, as the city council of the city of Reno, to restrain and enjoin such
council from entering into the alleged and proposed contract with the relators, and from
proceeding further therein; that, upon the final hearing and trial of said action, judgment was
rendered by said court in favor of the said corporation on the 4th day of August, 1898, by
which judgment and decree the respondents were forever restrained and enjoined from
entering into the proposed alleged contract with relators, and from proceeding further in the
matter; that said judgment, order, and injunction have never been revoked or modified, and
are now in full force, and binding upon the respondents; that an appeal has been regularly
taken from said judgment, and the same is now pending and undetermined in the supreme
court.
It is further shown by the return and answer that the respondents denied that the relators
ever gave them notice of their acceptance of the terms of the proposed contract, or of their
desire to enter into the same, or of their acquiescence in, or acceptance of, the modification
thereof, except that on the 12th day of October, 1898, and long after the rendition of the
judgment set up, the relators caused a notice and demand to be served upon respondents, a
copy of which was attached to the return.
It is further shown by the answer and return that the city council of the city of Reno, at a
meeting held on the 2d day of November, 1898, adopted a resolution to the effect that no
further action should be taken by the city council in respect to the matter of receiving bids or
proposals for the construction of water works for said city until the Supreme Court of the
State of Nevada had decided the matter relating thereto then pending in said court.
It is further alleged that the city council have at no time intended, nor do they now intend,
nor are they endeavoring, to contract with any person or persons for the construction of water
works for said city, nor will they enter into any such contract, until the pending appeal
aforesaid shall have been finally determined.
The relators interposed a demurrer to the answer, but we do not deem it necessary to
consider separately the questions presented by the same, but such questions, as far as may be
necessary, will be incidentally determined in the discussion of the case upon its merits.
25 Nev. 31, 45 (1899) State v. Noyes
necessary, will be incidentally determined in the discussion of the case upon its merits.
Under the issues made by the pleadings, it was shown by the testimony of Mr Schaw, one
of the relators, that he was present at the meeting of the city council held on July 7, 1898, at
which the contract, as prepared by Messrs. Torreyson & Summerfield, under the direction of
the resolution of the city council adopted on the 2d day of July, 1898, and as set out in the
petition herein, was read, and that he, as the senior member of the firm of Schaw, Ingram,
Batcher & Co., the relators herein, response to a direct question from the president of the city
council, accepted the terms of the proposed contract.
The action of the Reno Water, Land and Light Company against the city council to restrain
it from entering into a contract for the construction of a system of water works under the
proceedings had by the council for that purpose, and under which the relators claim their
rights, was instituted on the 25th day of June, 1898. That action was called for the hearing of
the motion of the plaintiff for a temporary injunction on the 1st day of July 1898, at which
time, upon statement of counsel for the defendant to the effect that the city council did not
intend to accept any of the bids, in the form in which said bids were presented, but that it
would probably enter into a contract with some one of the bidders upon the basis of the
modification thereof, it was stipulated that the further hearing of the action should be
continued until further orders; that the city council, before entering into or executing any
contract for the construction of a system of water works, should serve a copy of such
proposed contract upon the plaintiff; that the plaintiff should, within five days after such
service, institute such proceedings to restrain the execution thereof as it may be advised; and
that after the commencement of said proceedings the city council would not take any steps
which would change the rights of the parties respecting such contract and the execution
thereof until the decision of such action.
The stipulation further provided that it should be entered as an order of court in the action.
Thereafter, on the 13th day of July, 1898, the plaintiff in the action filed an amended
complaint, by which it sought to restrain the city council from entering into the contract
for the construction of the system of water works provided for by the terms of the
contract under which relators claim.
25 Nev. 31, 46 (1899) State v. Noyes
complaint, by which it sought to restrain the city council from entering into the contract for
the construction of the system of water works provided for by the terms of the contract under
which relators claim. The answer of the city council was filed, trial had upon the issues, and
the judgment rendered as set out in the answer and return of the respondents herein. The
motion of the city council for a new trial was overruled, and an appeal taken therefrom, and
from the judgment, to this court. It is also shown by stipulation that A. E. Cheney, the district
judge who presided at the trial of that action, and rendered the judgment therein, was an
inhabitant of the city of Reno, and the owner of a large quantity of property therein subject to
taxation.
Whatever power or authority the city council of the city of Reno may have to enter into the
contract set up in the petition will be found in the provisions of the act incorporating that city.
(Stats. 1897, p. 50.)
The meeting of July 2, 1898, was regular, and the city council, under the provisions of that
act, was authorized to accept the bid of the relators, and to make a valid and binding contract
respecting the matters shown. Was such contract made or was such action taken by the city
council and the relators at that meeting, standing alone, as would bind the city council and the
relators, or create any liability under which the relators could claim any right of action? We
think not. The order of the city council set up in the petition, and admitted by the respondents,
was not such an acceptance of relators' bid as would, independent of subsequent action, create
any liability or any right of action whatever. The bid of relators was not unconditionally
accepted by the city council. It was accepted subject to certain modifications specifically set
out in the order itself. No claim or showing is made, either by the pleadings or the evidence,
that relators consented or agreed to, or were willing to be bound by, the modifications made;
hence there was not, and could not be, any contract or liability under this order. On the
contrary, it was shown by the evidence of Mr. Schaw, one of the relators, acting for all, that
consent to the modifications suggested was not given by the relators until the matter was
again considered by the city council and relators at the meeting of July 7, 1S9S.
25 Nev. 31, 47 (1899) State v. Noyes
ter was again considered by the city council and relators at the meeting of July 7, 1898.
It is also shown that the city council did not intend to bind itself or the city by the order of
July 2d, or give to the relators immediate and unconditional rights of any kind under their bid
and the acceptance thereof, as the order expressly limits the time for entering into the contract
with the relators for the construction of the system of water works to such time as the city
council was free and unrestrained so to do. At the time this order was made an action was
pending in a court of competent jurisdiction to restrain the city council from accepting the
relators' bid, and, on the day immediately preceding the one on which the order was made, the
city council had, upon a showing made in that action by it, to the effect that it would not
accept the bid of the relators, except in a modified form, entered into a binding stipulation
with the plaintiff in the action not to enter into or execute any contract on such bid, as
modified or otherwise, until after it had served a copy of such proposed contract upon the
plaintiff, that the plaintiff should have five days after such service to institute proceedings to
restrain the execution of such contract, and that after the commencement of such proceedings
the city council would not take any proceedings in the matter which would change the status
or the rights of the parties to the action respecting the contract and the execution thereof until
the decision of the action. This stipulation was made in open court, and entered as an order
thereof.
It is therefore clear that the order of the council of July 2d is based upon this action, and
the stipulation of the council made therein, and that it did not intend to create any liability or
rights under the order until such restraint was removed. At the meeting of July 7, 1898, the
city council adopted an order approving the proposed contract, containing the modifications
suggested in the order of July 2d, which modifications are shown to have been for the first
time consented to by the relators. Without further restrictions or conditions, this order might
have created such rights as would entitle the relators to the relief sought; but the order shows
that it was not without condition, was not absolute, and was not intended to be absolute and
final by the city council.
25 Nev. 31, 48 (1899) State v. Noyes
and was not intended to be absolute and final by the city council. By express terms the
execution of the contract is agreed upon to be performed as soon as the city council is, in
law, free so to do. The city council must have had in view the effect of its stipulation in the
action above referred to when it adopted this resolution. Within the five days fixed by the
stipulation, the plaintiff filed in said action an amended complaint, setting up the same
contract which the relators seek to have executed by this action. A trial was had in the action,
and the judgment set out in the answer herein was rendered and entered.
It will therefore be seen that the action of the city council, by resolution adopted in regular
manner, upon which relators rely, and which is the only evidence of any contractual liability
upon the part of the city, and to which the relators must have assented, if they can claim any
right of action thereunder, created such liability upon condition only. The city council did not
agree to execute the contract that day, upon demand, or at any specific time. It might, under
the conditions shown, never execute the contract. The relators must have known the
conditions of both resolutions. They are claiming rights under both, and, if the respondents
are liable under either, or if any rights are given to the relators by either, they must claim such
rights subject to the conditions imposed. Therefore, under the well-settled rules that:
Mandamus is never granted in anticipation of a supposed omission of duty, however strong
the presumption may be that the persons whom it is sought to coerce by the writ will refuse to
perform their duty when the proper time arrives. It is therefore incumbent on the relator to
show actual omission on the part of the respondent to perform the required act, and, since
there can be no such omission before the time has arrived for the performance of the duty, the
writ will not issue before that time. In other words, the relator must show that the respondent
is actually in default in the performance of a legal duty then due at his hands, and no threats
or predetermination can take the place of such default before the time arrives when the duty
should be performed, nor does the law contemplate such a degree of diligence as the
performance of a duty not yet due. The relators must fail in this action.
25 Nev. 31, 49 (1899) State v. Noyes
this action. (State v. Gracey, 11 Nev. 233; State v. Rising, 15 Nev. 164; 2 Spell. Extr. relief,
1385; High, Extr. Rem., sec. 12.) This court has also held that the writ should not issue unless
the relators show a clear legal right to the relief demanded. (State v. La Grave, 22 Nev. 419,
41 Pac. 115.)
But it is claimed by the relators that the judgment and decree of injunction set up in the
answer is absolutely voida nullityand of no binding force or effect against the
respondents, for the reason that the district judge who presided at the trial was an inhabitant
of the city of Reno, and the owner of property situated therein, subject to taxation, and
therefore had such an interest in the suit as to disqualify him from acting in the case. Our
statute contains a provision, common to nearly all states, prohibiting a judge acting in any
action or proceeding to which he is a party, or in which he is interested. (Gen. Stats. 2464.)
This court has held that the rule of the common law which made the action of a judge
interested in the case an irregularity or error, to be corrected upon an appeal by a reversal of
the judgment, had been so changed by our statutory provision as to render such a judgment
not only voidable, but void. (Frevert v. Swift, 19 Nev. 364, 11 Pac. 273.) By the facts shown,
was the district judge disqualified? This question has been very fully and ably discussed by
the Supreme Court of California in Meyer v. City of San Diego, 53 Pac. 434. That action was
instituted for the purpose of setting aside, as illegal and void, a contract of the city involving a
large expenditure of money of the city, to be obtained by the sale of its bonds, and to enjoin
the issuance and sale of the bonds to carry out the alleged illegal and void contract. The bond
issue had been voted at a special election, called under an ordinance of the city, submitting to
the electors the proposition. The law under which the election was held, among other matters,
directed the municipal authorities to levy and collect an annual special tax sufficient to pay
interest and provide a sinking fund for the ultimate redemption of the bonds. The practice act
of that state disqualifying the judge contains the same provisions as our act above cited. A
motion for a change of venue because of the disqualification of the trial judge was made,
upon showing that he was the owner of real estate situated and taxed in the city of San
Diego for municipal purposes, and taxable for the payment of the bonded indebtedness
growing out of the matters then in litigation.
25 Nev. 31, 50 (1899) State v. Noyes
real estate situated and taxed in the city of San Diego for municipal purposes, and taxable for
the payment of the bonded indebtedness growing out of the matters then in litigation.
The supreme court, in discussing the question raised by the motion for the change of
venue, after discussing many authorities, say: Thus, the interest which one has in a public
question, merely because he is a member of the civic body to be affected by the question, is
not the interest which the law has in mind. In the case from which we have just quoted, the
judge in probate was not held to be disqualified because, in a will before him, there was a
bequest of money to trustees, to be devoted to the use and benefit of indigent persons in
certain towns, of one of which the judge was an inhabitant. * * * And so, in Sauls v.
Freeman, 24 Fla. 209, 4 South. 525, the fact that the circuit judge, with other registered
voters of the county, had signed a petition addressed to the county commissioners, asking for
a change of the county site, did not disqualify him, for interest, from sitting in a mandamus
proceeding to compel the commissioners to call an election upon the question. In these and
like cases the so-called interest of the judge is found to be remote, doubtful, and
speculativein no way certain in fact, nor susceptible of precise measurement. But, upon the
other hand, where, in any litigation, there is any certain, definable, pecuniary or proprietary
interest or relation, which will be directly affected by the judgment that may be rendered, in
every such case, without exception, so far as an exhaustive examination of the authorities
goes, the disqualification of the judge is held to exist.
Has the judge any pecuniary or personal right or privilege, directly affected by, or
immediately dependent upon, the result of the case? As that question is answered, so is
answered the question of his disqualification for the interest which we have been considering.
* * * Even more immediate and direct is the interest of the judge in the case at bar than that
which appeared in the North Bloomfield Min. Co. Case, 58 Cal. 315. The disqualification
does not spring from the fact that the judge is a citizen, inhabitant, and taxpayer of the city of
San Diego, nor yet from the fact that the municipality is a party litigant in the action.
25 Nev. 31, 51 (1899) State v. Noyes
municipality is a party litigant in the action. It arises from the circumstance that he owns
property within the city, which may or may not be liable for the burden of a special tax for the
period of forty years, as he shall decide. The validity of this tax is directly called in question.
The judge himself, under the circumstances shown, could have instituted, as plaintiff, this
identical action.* * *The judgment which he renders in the case will be binding upon his
rights and his property. His interest is in the outcome of the litigation, and it is a direct,
measurable, pecuniary interest.
Mr. Justice McFarland, concurring in the judgment of the court, emphasizes the rule laid
down, and pointedly marks the distinction between the case at bar and a case where a city in
which the judge is a taxpayer is a party, and where there is a mere possibility that a judgment
against the city might result in an increased levy of taxes, and a judgment in favor of the city
might bring a reduction of taxation. He says: In the latter case, and in others that could be
mentioned, where a similar principle applies, the interest is too shadowy, indirect, remote,
and contingent to be within the rule that a man cannot be a judge in his own case. After
citing authorities, he concludes: But in the case at bar the interest of the judge was not
indirect, remote or contingent. It directly involved the immediate imposition of a special
annual tax upon his property to continue for forty years. (53 Pac. 436.)
It will be observed that the trial judge was held to be disqualified because the facts showed
a direct pecuniary interest of the judge in the suit. It directly involved the immediate
imposition of a special annual tax upon his property, to continue for a number of years.
The act incorporating the city of Reno confers authority upon the city council to issue the
bonds and create the indebtedness for the purpose of constructing a system of water works.
There is no authority given the city council, in express terms, to tax the property situated
within the city for the purpose of providing means of paying the interest, and the ultimate
redemption of the bonds. If such power or authority exists, it arises by implication alone. That
the legislature did not deem it necessary to confer such power or authority, by direct
terms, is found in the last clause of section 34 of said actthe same section wherein
authority is given to create the bonded indebtedness for the purpose of constructing a
system of water works, by which the city council are directed to provide for the payment
of the principal and interest of the bonds, and are empowered to provide by ordinance for
the distribution of water to the inhabitants of the city, upon such reasonable terms as
they shall deem expedient.
25 Nev. 31, 52 (1899) State v. Noyes
legislature did not deem it necessary to confer such power or authority, by direct terms, is
found in the last clause of section 34 of said actthe same section wherein authority is given
to create the bonded indebtedness for the purpose of constructing a system of water works, by
which the city council are directed to provide for the payment of the principal and interest of
the bonds, and are empowered to provide by ordinance for the distribution of water to the
inhabitants of the city, upon such reasonable terms as they shall deem expedient. Under the
provisions of this act, it might never become necessary to tax any of the property within the
city for the purpose of raising funds to discharge the interest and for the ultimate redemption
of the bonds, as it was evidently expected that the interest account might be met, and the
sinking fund created, from water rates established by the city council.
Applying the rule of the California case above cited, it can be said that the interest of the
trial judge in the case is too shadowy, indirect, remote, and contingent, to disqualify him from
sitting; that his interest in the result of the litigation is not direct, measurable, or pecuniary.
It is not necessary to pass upon other questions discussed by counsel, or to determine the
rights of the intervenor, if he has any, as the peremptory writ must be denied, and the
proceedings dismissed.
It is so ordered.
____________
25 Nev. 53, 53 (1899) Reno Water, Land and Light Co. v. Osburn
[No. 1545.]
RENO WATER, LAND AND LIGHT COMPANY (a Corporation), Respondent, v. R. S.
OSBURN, et al., as the City Council of the City of Reno, Appellants.
Municipal CorporationsConstruction of Water WorksPowers of City CouncilBids. Under section 35 of
the act incorporating the town of Reno (Stats. 1897, p. 50), providing that, where the electors have
authorized the city council to construct a system of water works and an electric light plant, the council
shall invite written proposals, with plans and specifications, for the construction of such system and plant,
and section 16 of the act providing that laws not inconsistent with the charter shall remain in force, the
provisions of the act of February 19, 1867 (Stats. 1867, p. 59), requiring boards of county
commissioners, in letting contracts amounting to $500 or more, to advertise and let them to the lowest
responsible bidder, and when plans and specifications are to constitute a part of such contract to state in
the notice where the same may be seen, is inconsistent with the charter, for the reason that the charter
provision commits to the council a discretionary power to determine which system is the best and
introduces an element inconsistent with competitive bidding upon plans and specifications previously
adopted.
IdemIdemEffect of Modification of Plans and Specifications. It is no ground for complaint that a city
council, after having advertised for plans and specifications for a system of water works, together with a
bid for constructing the system described in them, made an agreement with one of the bidders by which
the plans and specifications and bids were modified, where the modification was for the advantage of the
city.
Practice on AppealNew TrialIdentification of Record. An exhibit in the record on appeal will be stricken
out unless it is identified by the endorsement of the trial judge as having been read or referred to on the
hearing of the motion for new trial.
IdemCivil Practice Act Construed. The formal decision required to be filed after the trial of an issue of fact
by the court under section 182 of the civil practice act is different from the written opinion of the court
mentioned in section 340 of the same act.
Appeal from the Second Judicial District Court, Washoe County; A. E. Cheney, District
Judge.
Action by the Reno Water, Land and Light Company against R. S. Osburn, and others, as
the City Council of the City of Reno, for an injunction. From a decree for the plaintiff,
defendants appeal. Reversed.
Torreyson & Summerfield, for Appellants:
I. The court erred in ruling, holding and finding, that the law requires appellants to first
adopt specific plans and specifications and then to compel all bids to conform thereto.
the law requires appellants to first adopt specific plans and specifications and then to compel
all bids to conform thereto. This is the overshadowing question in this case. An examination
of the rulings of the court will show that the conviction that the antecedent adoption of plans
and specifications before the advertisement for bids was ever uppermost in the mind of the
learned judge. On the contrary, appellants steadfastly and earnestly insisted, and still insist,
that it was its plain duty to invite bids with plans and specifications, and not without plans
and specifications. The latter course was pursued by appellants and the decision of the trial
court shows that practically all of it is devoted to ascribing reasons why the appellants' course
was radically wrong.
II. The act to incorporate the town of Reno, approved March 8, 1897 (Stats. 1897, p. 50),
is a special act, complete and independent, requiring no aid from any other statutes, and in
which the legislative mind was especially drawn to the subject matter contained in it. The trial
court, however, held persistently that the general act of February 19, 1867 (Gen. Stats. 1972),
is of controlling effect in the case at bar. It will be observed that the act of 1867 is entitled
An act supplementary to an act entitled An act to create a board of county commissioners in
the several counties of the state, and to define their duties and powers,' and that its context
relates only to contracts to be let by boards of county commissioners in which counties are
interested parties. This clearly appears by reason of its reference to the provisions of the
twenty-third section of the act of which it is supplemental. The provisions of a special
charter or a special authority derived from the legislature are not affected by general
legislation on the subject. The two are deemed to stand together; one as the general law of the
land; the other as the law of the particular case. (State v. Stoll, 17 Wall. 425; 1 Dillon on
Municipal Corporations, 4th ed., secs. 87 and 88, and cases there cited.)
III. The authorities are numerous that a special act is not modified or controlled by a
subsequent general act upon the same subject unless the latter clearly manifests on its face
such intention. (Mobile R. R. Co. v. State, 29 Ala. 573; Home for Inebriates v. Reis, 95 Cal.
142; Van Denburg v. Greenbush, 66 N. Y. 795.)
Home for Inebriates v. Reis, 95 Cal. 142; Van Denburg v. Greenbush, 66 N. Y. 795.)
IV. The act of March 8, 1897 and the act of February 19, 1867, are not in pari materia.
Neither is any part of the special act in pari materia with the general act of 1867. The act of
1867 specifically relates to county contracts, and is general legislation. Section 35 of the act
of 1897 is a section of a special charter act, and relates only to contracts of a specially created
municipality.
V. Expressio unius exclusio alterius. This well-settled rule of statutory construction is
peculiarly applicable to the contention of appellants that section 35 of the act of 1897
provides a specific mode to be pursued in advertising for bids and that such provision
necessarily excludes all other modes. The mention of one person or thing is in law an
exclusion of all other things or persons. (V. & T. R. R. Co. v. Elliott, 5 Nev. 296; Doctor v.
Hartman, 74 Ind. 221; Quincy R. R. Co. v. Kellogg, 54 Mo. 334; Page v. Allen, 58 Pa. St.
241; Koch v. Bridges, 45 Miss. 247; Watson v. Corey, 6 Utah, 150.)
VI. Section 35 of the act of 1897 specifically provides that the published invitation for the
submission of bids shall be for such submission with plans and specifications. This provision
of law certainly excludes the submission of bids without plans and specifications. The learned
trial court laboriously attempts to fortify its conclusion that adopted plans and specifications
must antedate and precede advertisements for bids for holding and finding that section 16 of
the act of 1897 adopts the act of February 19, 1867, and makes it applicable to section 35 of
the said act of 1897. If such is the case, what is the significance of the words with plans and
specifications in section 35 of the act of 1897? If the conclusion of the trial court is true,
they are the veriest surplusage. It must appear beyond cavil or dispute that they were placed in
the act ex industria and not as ornamental surplusage. It is respectfully submitted that the law
clearly requires bids to be with plans and specifications, and that the finding of the court
that they must be without plans and specifications is grossly erroneous and the mental process
by which the learned judge arrived at his conclusion are simply inexplicable.
VII. The court erred in ruling, holding and finding that appellants had no authority to
modify the terms of the accepted bid. It is not denied, and, in fact, is admitted that the bid of
Schaw, Ingram, Batcher & Co. was the lowest bid in its unchanged form. It is also undisputed
that in the judgment of appellants the modifications were in the interest of the city of Reno
and not of the bidders. It is not claimed that such was not true as a matter of fact. It is
admitted that after the award of bids it is often prudent and lawful to depart from the original
plans and specifications. Nothing can be legally done by indirection which may not be done
directly. The true rule is that where changes and modifications are made which are clearly and
palpably in the interest of the people, and not in the interest of bidders, they are not illegal,
but, on the contrary, are commendable. Much must be left to the discretion and honest
judgment of an administrative board, and they will not be hampered by the courts and
enmeshed in purely technical webs where their acts are indisputably honest, prudent, and for
the popular weal. It is respectfully submitted that great public enterprises should not be
strangled by fastidious contentions. In every essential particular appellants have obeyed the
law.
VIII. Under the reservation in the stipulation respondent moves the court to strike from
the transcript on appeal all papers therein contained except the judgment roll, statement on
motion for a new trial, notice and undertaking on appeal, and the clerk's certificate attached to
the record. The motion is made upon the ground that the other parts of the transcript do not
constitute any part of the transcript on appeal, for the reason that they are embraced in the
statement on motion for a new trial, and are not endorsed as having been read or referred to
on the hearing of the motion for a new trial. The effect of this motion, should it prevail,
would be to strike from the record the decision of the learned judge who tried the case in the
court below, and who now makes the motion to strike his decision from the record on appeal,
and two certain stipulations between the respective counsel and filed on the 27th day of June,
1898, and on the first day of July 1898, respectively.
IX. Appellants in their assignment and specification of errors gave notice to respondent
that on the hearing of the motion for a new trial they would refer to and use the records,
pleadings, papers and files in the case.
errors gave notice to respondent that on the hearing of the motion for a new trial they
would refer to and use the records, pleadings, papers and files in the case. The omission of the
clerk to endorse the papers moved to be stricken out as having been read, used or referred to
at the hearing of the motion is merely a clerical omission and is cured by the certificate of the
clerk which certifies that the papers are the original papers in the action. The clerk further
certifies that the papers included in the transcript constitute in whole the record on appeal.
The decision of the trial court is referred to in the statement on motion for a new trial. The
statement including this reference is certified to by respective counsel that it constitutes a
full, true and correct copy of the statement on motion for a new trial. The decision of the
trial court which includes its findings is sufficiently identified, as above indicated, to comply
with all statutory requirements and is properly in the record and before this court. Where
papers in a case are certified to constitute in whole or in part the record on appeal they are
properly before the supreme court. (Holmes v. Iowa Mining Co., 23 Nev. 23; Streeter v.
Johnson, 23 Nev. 199.)
X. Even though the papers be stricken out, still the question of the correctness of the
judgment and order may be determined from the judgment roll. (Peers v. Reed, 23 Nev. 407.)
The complaints do not state such facts as warrant the judgment of the trial court. It is
admitted in this case that the judgment and order of the trial court must stand or fall upon
abstract questions of law alone. If the court interpreted the law correctly, it will be sustained.
If its view of the law was incorrect, its judgment cannot be upheld. (Beck v. Thompson, 22
Nev. 119; White v. White, 6 Nev. 20; Hayne on New Trial and Appeal, sec. 145.)
XI. The gist of respondent's contention is that the words with plans and specifications
constitute a fugitive expression and must be ignored entirely. Such disposition of the
words is certainly the only way in which respondent's principal argument can be sustained or
the judgment of the lower court upheld. But it is a well-settled principle of statutory
construction that no words of a statute should be rejected as mere surplusage if such
consequences are not imperatively required.
imperatively required. (Torreyson v. Board of Examiners, 7 Nev. 19.)
XII. It matters not what courts may think of the policy of statutes. If they are plain and
unambiguous, the legislature must be understood to mean what it has explicitly expressed and
there is no room for construction. (Odd Fellows' Bank v. Quillen, 5 Nev. 283.) No argument
that can be advanced can make it plainer that the words with plans and specifications were
placed in the statute ex industria and not as a fugitive expression than a reading of the
statute itself. The presumption cannot be reasonably entertained that the legislature in framing
the most important section in the act and having in view the especial subject of the
construction of municipal water works used a fugitive expression in prescribing the
important method of procedure to be followed by appellants in letting the contract for their
construction.
Curler & Curler, A. E. Cheney and O. J. Smith, for Respondent:
I. All the papers found in the record or filed on appeal (except the judgment roll,
statement on motion for a new trial, order denying a new trial, notice and undertaking on
appeal and clerk's certificate) should be stricken out, on the ground that they constitute no
part of the record on appeal, for the reason that they are not made a part of the statement on
motion for a new trial, and are not endorsed as having been read, used or referred to on the
hearing of the motion for a new trial. It is no longer a debatable question that findings, to be
considered on appeal, must be embraced in the statement on motion for a new trial. (Peers v.
Reed, 23 Nev. 404.) And this rule has not been changed by the statute permitting the original
papers to be sent up on appeal. (Streeter v. Johnson, 23 Nev. 194.)
II. Was there a compliance with the statutory requirements in letting the contract to construct
a water system for the city of Reno, to Schaw, Ingram, Batcher & Co.? In this connection
there will be no attempt to review or restate the principles or authorities upon which the
district court rendered its decision. The presumption is that the action of the district court was
correct. Its findings of acts are not subject to review upon the record before this court.
ject to review upon the record before this court. The authorities upon which its action is based
are not criticised [criticized], and their inapplicability is not shown. The failure to refute
either the principles of law or the adjudicated cases upon which the district court acted is an
admission that they cannot be successfully assailed.
III. The proposition announced by appellants, viz.: A special act is not modified or
controlled by a subsequent general act upon the same subject, unless the latter clearly
manifests on its face such intention, is, probably, true, and the authorities cited by counsel
seem pertinent to that statement. But that is not the proposition now before this court. Here
the question is whether a special act incorporating a city which authorizes the making of
public improvements, and expressly continues in force all prior laws not inconsistent with
its provisions, repeals a prior statute which was in force in the city respecting the methods of
letting contracts for public improvements, when the two are capable of being both sustained?
The difference in the two propositions is material. As stated by appellants, it would be
incumbent on us to show that a general law had repealed a prior special act, by implication,
while the fact is that it is for the appellants to show that there is such an irreconcilable
conflict between the previous general act and the later special act that an intention to repeal
the former by the latter is the only construction possible to be given to the latter enactment.
IV. The law applicable to this case, and the caution with which it is to be applied, is well
stated by Judge Dillon: The presumption is not lightly to be indulged that the legislature has
by implication repealed, as respects a particular municipality or as respects all municipalities,
laws of a general nature, elsewhere in force throughout the state; yet a charter or special act
passed subsequent to the general law, and plainly irreconcilable with it, will, to the extent of
the conflict, operate a repeal of the latter by implication. But by a well-known rule founded
on solid reasons such repeals are not favored; and the principles of implied repeals ought to
be applied with extreme caution. (1 Dill. Mun. Corp., 3d ed., sec. 88.)
V. As stated in State v. Stall, cited by appellants, If, by any reasonable construction,
the two statutes can stand together, they must so stand.
any reasonable construction, the two statutes can stand together, they must so stand. If
harmony is impossible, and only in that event, the former law is repealed in part or wholly, as
the case may be. (17 Wall. 431.)
VI. Pertinent rules of construction have been declared by this court. There can be no
doubt but that, whenever the interpretation of a statute or a constitution in a certain way will
result in manifest injustice, courts will always scrutinize the statute or constitution closely to
see if it will not admit of some other interpretation; for it is not to be supposed that any
legislative body passes an act for the purpose of doing a manifest wrong. (State v.
Kruttschnitt, 4 Nev. 178.) It is not unfrequently the case that the general object or purpose is
perfectly clear, whilst the details and means prescribed for carrying such purpose into
execution are crude and contradictory. Hence, in the interpretation of any phrase, sentence or
section of a law, the first thing to be ascertained is the ultimate and general purpose of the
legislature in the enactment of the law. When that is known or ascertained, then every
sentence and section of the entire law should be interpreted with reference to such general
object, and, with view to giving it full and complete effect, extending it to all logical and
legitimate results. That object must, of course, be ascertained from the act itself. But the
whole act must be taken together, and when the general object is apparent, any fugitive
expression, or any sentence which it is impossible so to interpret as to make it accord with
and further such general object, must be ignored entirely. (4 Nev. 57.)
VII. There can be no doubt that the legislature intended that water works for the city of Reno,
if constructed, must be let to the lowest bidder therefor. There must be an advertisement and a
letting to the lowest bidder. And if all the bids are rejected, as they may be, the city council
must readvertise as provided by law in similar cases. (Stats. 1897, sec. 35. p. 80.) This
general object is apparent, and any fugitive expression, or any sentence which it is impossible
so to interpret as to make it accord with and further such general object, must be ignored
entirely. It being absolutely necessary to the making of a lawful contract that there be a
letting to the lowest bidder, it will not be held, if any other construction of the statute is
possible, that the legislature intended to adopt a method of letting the contract which
makes it impossible to ascertain who is the lowest bidder, for it is grounded in good
sense, as well as in the law, that there can be no comparison and no knowing who is the
lowest bidder unless there is a bidding upon a common basis, separate offers to do the
same thing, of the same material and in the same manner.
any other construction of the statute is possible, that the legislature intended to adopt a
method of letting the contract which makes it impossible to ascertain who is the lowest
bidder, for it is grounded in good sense, as well as in the law, that there can be no comparison
and no knowing who is the lowest bidder unless there is a bidding upon a common basis,
separate offers to do the same thing, of the same material and in the same manner. This
essential element of competitive bidding, counsel for appellants persistently ignore.
VIII. Under the provisions of the general act for the letting of contracts for public
improvements, where they exceed $500 in value (Gen. Stats. 1972), it is clearly contemplated
that a contract for such work may be let either with or without plans and specifications. If
plans and specifications are to be used to describe and designate the nature and extent of the
work, then the notice must designate where they are to be found. Such a bidding would be
with plans and specifications. But, to constitute a proposal to construct water works with
plans and specifications, it is not necessary to conclude that there must be an identity of
time. The reasonable construction of the phrase, with plans and specifications, having in
view the object of the act, the presumed intent of the legislature to protect public interests, the
provisions of the General Statutes recognizing bidding with and without plans and
specifications, is that the legislature intended that a work of this magnitude should not be let
except by competitive bidding upon previously adopted plans and specifications. But inquiry
as to possible or probable meanings of words is unnecessary under the settled rules of
statutory construction. If the word with or the phrase with plans and specifications, as
used in the city charter, is not in harmony with the general object of the whole act, the plain
and just purpose and intention to protect the public and prevent fraud and favoritism by
requiring a letting of the work to the lowest bidder, then that word, or the phrase, in the
language of this court, must be ignored entirely.
IX. The claim of counsel for appellants, that the word laws, used in section 16 of the
city charter in connection with ordinances, means local by-laws of the town of Reno, is
rather startling.
is rather startling. If a municipal corporation has any local by-laws other than such
ordinances as it enacts, I am quite ignorant of their origin and character. Dillon says: Indeed,
in general and professional use the term ordinance is almost, if not quite, equivalent in
meaning to the term by-law, and is the word most generally used to denote the by-laws
adopted by municipal corporations. (Dill. Mun. Corp., 3d ed., sec. 307.) Laws and
by-laws have well-known distinct meanings. In the absence of an express declaration of an
intent to preserve all laws not inconsistent with the city charter, they would be retained by
operations of law. But that there might be no question that all laws, general and localall
laws and ordinanceswere to remain full force except when inconsistent, section 16 of the
city charter was adopted. There is nothing to construe in the language employed, and nothing
to warrant the contention that when the legislature said all laws they meant all by-laws,
especially when it used, in connection with the words all laws, the term ordinances,
which is the equivalent of by-lawsa construction the equivalent of saying All by-laws
and by-laws not inconsistent herewith are to remain in full force in the city of Reno.
X. Counsel are mistaken when they state that it is admitted that the bid of Schaw, Ingram,
Batcher & Co. was the lowest, or that the alterations were in the interest of the city of Reno.
Neither is it admitted that the acts of the city council in accepting that bid and agreeing to let
the proposed contract were prudent and for the public weal. The contention of the
respondents, on the contrary, is that there can be no lowest bid where there is only one bid,
nor where there are several bids for several radically different things, and that public
experience in municipal affairs justifies the assertion, without charging any want of good
faith in a particular instance, that it is not prudent nor for the public weal to permit a city
council to make a contract of magnitude, with a proviso for future omissions of work, with
such a reduction in the price as may be privately agreed upon between the contractor and the
city council. If the subject of modifications is, upon this record, before this court, it is
respectfully submitted that appellants have neither reviewed the authorities cited by the
lower court, nor cited any to sustain its contention that such a radical departure from an
accepted bid is permissible.
the authorities cited by the lower court, nor cited any to sustain its contention that such a
radical departure from an accepted bid is permissible. The extent of allowable modifications
is clearly indicated by this court in Sadler v. Eureka County, 15 Nev. 39, and I have no desire
or intention of reviewing either the argument or authorities cited to show that the
modificationsthat is too mild a term to express the factsthe substitute of a new contract
for the one proposed by the bid, is without authority or precedent, and is, in fact, a letting
without any bidding whatever.
XI. If the act of March 8, 1897, incorporates within itself and makes applicable the act of
February 19, 1867, then there can be no question of the correctness of the opinion and finding
of the court below. Can there be any serious question on that point? The city council may
reject any and all bids and readvertise as provided by law in similar cases. (Stats. 1897, p.
60.) What law in similar cases is referred to? There is only one law in similar cases on
our statute books and that is the act of February 19, 1867 (Gen. Stats. 1972), which the
legislature intentionally adopted into the city charter and clearly refer to in section 35 thereof,
as cited above. And that law in similar cases was construed by this court in the case of
Sadler v. Eureka County, 15 Nev. 39, in the following language, which is found on page 44:
The truth is, that under the provisions of the statute, the commissioners, previous to the
letting of any contract for the erection of a public building, should always adopt a plan and
specifications, and see that they call for the erection of such a building as may be required.
When these have been considered and adopted, the advertisement should call for bids in
accordance therewith. That construction of the law establishes the rule under it, and that
decision is quoted by the court below and has been followed. It is contended by appellants
that the act of 1867 and the act of 1897 are not in pari materia. The legislature evidently
intended that they should be when it referred back to the act of 1867 in the act of 1897 by
saying as provided by law in similar cases, and also by the very plain wording of section 16
of the act of 1897. I need not cite authority to the effect that the law does not favor repeals by
implicationthat is a well-established and elementary principle.
well-established and elementary principle. Section 16 of the act of 1897 incorporates section
1972 of the General Statutes, and there is no express exception thereto, and no express
repealer thereof. It is the law, if it can be harmonized. In a case almost identical with the case
at bar, the Supreme Court of Nebraska said: The law is the best expositor of itself that every
part of it is to be taken into view for the purpose of discovering the mind of the lawgiver, that
the details of one part may contain regulations and subject matter restricting the intent of
general expressions or words in another part of the same law, and, hence, that every part of
the law is to be considered, and the legislative intent is to be extracted from the whole of it.
(People v. Commissioners, 4 Neb. 159.) In People v. Auditor, 3 Neb. 312, the court says p.
322: These several acts must be taken as statutes in pari materia and construed together as
one law. This is a well-settled rule of law in respect to statutes relating to the same subject
matter. (Town of Ottawa v. La Salle, 12 Ill. 341; Dwarris on Statutes, 674; Bacon's
Abridgment, title Statutes D; Bown v. Lease, 5 Hill, 221; Planters' Bank v. State of Miss., 6
Smed. & M. 628; Hirn v. State of Ohio, 1 Ohio St. 21.)
XII. Even if there had been the requisite notice and opportunity for competitive bidding,
the contracts involved in this action are unauthorized by reason of the changes which were
made by private agreement after the bids were opened. It is manifest from a comparison of
the proposals and the proposed contracts that there have been material changes. It may be
true, as claimed for the city council, that these changes have been in the interest of the
taxpayers. The answer to this is that the legislature has adopted a method for securing the best
contract for the taxpayer, and the council cannot substitute its judgment for that of the
legislature. The contract must be the one for which bids were solicited, and, when it is
materially different therefrom, it ceases to be the contract bid upon, and is a new contract, let
without notice or opportunity for bidding. Such contracts are illegal and void. (Quoted from
Judge Cheney's opinion in this case; McBrien v. City of Grand Rapids, 56 Mich. 95, 98;
Dickinson v. Poughkeepsie, 7 Hun, 1; Dickinson v. Poughkeepsie, 75 N. Y. 65; Nash v. St.
keepsie, 75 N. Y. 65; Nash v. St. Paul, 11 Minn. 174; Kneelands v. Furlong, 20 Wis. 437;
Zottman v. San Francisco, 20 Cal. 104; Mazet v. Pittsburg, 137 Pa. St. 548; Van Reipen v.
Mayor of Jersey City, 33 Atl. 741; People v. Commissioners of Buffalo Co., 4 Neb. 150;
Harper v. Tiffin Natl. Bank, 44 N. E. 95; 1 Dill. Mun. Corp., 4th ed., sec. 89, 91, and note; 15
Am. & Eng. Ency. Law, pp. 1090-1093; Appleby v. Mayor, 15 How. Pr. 428; Moore v.
Mayor, 4 Hun, 545; In re Eager, 46 N. Y. 100; Miller v. Pearce, 2 Cin. Sup. Ct. Rep. 44.)
By the Court, Belknap, J.:
The city council of the city of Reno submitted the question to the electors whether or not
the city should borrow the sum of $150,000 for the purpose of procuring water and the
erection of water works for the city, and at the same time submitted the question whether or
not the city should borrow the sum of $20,000 for the purpose of establishing an electric light
plant for lighting the streets and houses of the city. Both questions having been answered in
the affirmative, the council caused the following notice to be published: Bids Wanted.
Notice is hereby given that bids will be received until 8 o'clock p. m. of June 13th, 1898, for
the purchase of Reno water works bonds in the sum of $130,000, or any portion thereof not
less than $500; also, for the purchase of Reno electric light bonds in the sum of twenty
thousand ($20,000) dollars, or any portion thereof not less than the sum of $500; also, written
proposals, with plans and specifications, to construct a water system for the city of Reno, to
be paid for with bonds of the city of Reno, at not less than their par value; also, for written
proposals, with plans and specifications, to construct and establish an electric light plant for
the city of Reno, to be paid for with the bonds of the city of Reno at not less than their par
value. All bids or proposals should be sealed, so indorsed upon the envelope as to indicate the
character of the contents, and directed to F. B. Porter, City Clerk, Reno, Nevada.' R. S.
Osburn, President City Council. F. B. Porter, City Clerk. Reno, Nevada, May 9th, 1898.
Bids and proposals, with plans and specifications, were received under the notice; and the
council, believing that the bid of the firm of Schaw, Ingram, Batcher & Co. was the best,
were about to enter into a contract with that firm for a water supply and water works,
when this suit was commenced for the purpose of enjoining defendants therefrom.
bid of the firm of Schaw, Ingram Batcher & Co. was the best, were about to enter into a
contract with that firm for a water supply and water works, when this suit was commenced
for the purpose of enjoining defendants therefrom. Upon the trial a decree was entered
perpetually restraining defendants from entering into the proposed contract, and also with the
Ft. Wayne Electric Corporation.
One of the questions presented by the appeal is whether or not it was the duty of the
council to have adopted plans and specifications for a water system before receiving bids.
Section 16 of the charter provides that all laws not inconsistent shall remain in full force until
otherwise provided. It is claimed under this provision, that an act passed February 19, 1867
(Stats. 1867, p. 59), requiring boards of county commissioners in letting contracts amounting
to $500, to advertise and let them to the lowest responsible bidder, and, when plans and
specifications are to constitute part of such contract, it shall be stated in the notice where the
same may be seen, is applicable to the contract in this case, and that it was the duty of the
council, in obedience to this law, to have adopted plans and specifications, and thereafter to
have advertised for proposals.
The law of 1867 contemplates competitive bidding, and, to secure that end, plans and
specifications must be adopted before bids are invited. By the terms of that statute, contracts
must be awarded to the lowest responsible bidder. By section 35 of the charter it is provided
that, if the council is authorized to issue bonds for water and light purposes, they shall
proceed to publish such fact and invite written proposals with plans and specifications to
construct such water system, and the person or corporation offering to provide the best
permanent system of water supply for the least number or amount of said bonds, shall be
deemed the lowest or best bidder. * * * These provisions were framed upon a different
theory than those governing the statute of 1867. Bidders are required to furnish their own
plans and specifications. This requirement can serve no useful purpose, and would not have
been inserted in the charter if contracts were to be awarded upon plans and specifications
previously determined by the council. Under provisions requiring proposals to be awarded
to the lowest responsible bidder, the board or officer charged with the award has no
discretion, except as to the responsibility of the bidder; but the provision of the charter
that the bidder offering to furnish the best system of water supply for the least number of
bonds shall be deemed the lowest or best bidder, commits to the council a discretionary
power to determine which system is the best, and introduces an element inconsistent
with competitive bidding upon plans and specifications previously adopted.
posals to be awarded to the lowest responsible bidder, the board or officer charged with the
award has no discretion, except as to the responsibility of the bidder; but the provision of the
charter that the bidder offering to furnish the best system of water supply for the least number
of bonds shall be deemed the lowest or best bidder, commits to the council a discretionary
power to determine which system is the best, and introduces an element inconsistent with
competitive bidding upon plans and specifications previously adopted. In order to determine
the best system, comparisons must be made with other systems; but, if all the bids were
restricted to one system, it would be impossible for the council to reach any conclusion.
We think that the council was not required to adopt plans and specifications before
advertising for bids, and this provision of the law of 1867, in this respect, is inconsistent with
the charter.
After the submission of the original proposal, the council, upon consultation with the firm
of Schaw, Ingram, Batcher & Co., proposed that the bid of the firm should be modified by
omitting the construction of a reservoir, and pipes leading to and from it, and that in
consideration thereof the sum of $6,000 should be deducted from the contract price. It was
shown that the omission would be to the advantage of the city in several respects. The firm
consented to the modification. It was the duty of the council, as agent of the city, to protect
and advance its interests. The judgment of the council was that the modification would save
the city an unnecessary expense of about $6,000, and improve the proposed water system.
Upon these facts, no one can complain of the action of the council.
In the case of the proposed contract with the Ft. Wayne Electric Corporation, it is shown
by the pleadings that the modifications are unimportant.
A motion has been made by respondent to strike from the record an exhibit containing the
original bid of Schaw, Ingram, Batcher & Co., filed with the clerk of the city council June 13,
1898, and also the findings of the court, upon the ground that they had not been identified by
the trial judge, by his indorsement, as having been read or referred to upon the hearing of the
motion for new trial.
upon the hearing of the motion for new trial. Aside from the exhibit itself, the testimony of
Mr. Osburn satisfactorily shows the difference between the original bid and its modification
by the firm and council. The evidence contained in the exhibits is therefore merely
cumulative, but the exhibit, failing of identification should be stricken out.
The findings mentioned in respondent's notice are the written opinion of the judge
mentioned in section 340 of the civil practice act, and are properly in the record. The formal
findings referred to in section 182 are different from the written opinion mentioned in section
340. (Corbett v. Job, 5 Nev. 201.)
Judgment reversed.
____________
25 Nev. 68, 68 (1899) State v. Beck
[No. 1556.]
STATE OF NEVADA, ex rel. R. S. OSBURN, Relator, v. H. H. BECK, T. K. HYMERS and
GEORGE H. FRAZER, Respondents.
Constitutional LawLegislative EnactmentEnrolled Bill Conclusive. An enrolled bill, signed by the proper
officers and deposited with the secretary of state, is conclusively presumed to have been regularly
enacted; and the courts cannot look to memoranda endorsed on the bill, or to the legislative journals, to
determine whether the bill was read on three several days in each house, as required by article IV, section
18, of the state constitution.
IdemCertain Sections of Act Unconstitutional. Where a certain section of an act is complete and independent
in itself, its validity is not affected on account of the subject of other sections of the act not being
expressed in the title, as required by article IV, section 17, of the state constitution.
IdemIdem. The fact that a provision in an act to disincorporate a town, fixing the boundaries thereof, may be
unconstitutional, as special legislation, because varying from the general act providing that the county
commissioners shall fix the boundaries of disincorporated towns, does not invalidate so much of the act
as disincorporates the town.
IdemStatutory ConstructionEffect of Disincorporation of Town on Pending Litigation. A provision in the
act disincorporating the city of Reno, that actions shall be continued by or against the town of Reno, does
not prevent such suits being continued by or against the county commissioners acting for the use and
benefit of the inhabitants of the town, as required by the general act relating to unincorporated cities, by
proper substitution, and hence such provision is not so variant from the general act as to be special
legislation.
25 Nev. 68, 69 (1899) State v. Beck
IdemWho May Attack. Courts will not consider an objection made to the constitutionality of an act of the
legislature by a party whose rights it does not affect, and who has, therefore, no interest in defeating it.
Original proceeding in quo warranto by the State, on the relation of R. S., Osburn, against
H. H. Beck, and others, Respondents. Respondents demur to information. Sustained.
Torreyson & Summerfield, E. R. Dodge and F. H. Norcross, for Relator:
I. The determination of this case involves the constitutionality of that certain act of the
legislature of the State of Nevada, entitled An act to disincorporate the city of Reno,
approved March __, 1899. Said act is in violation of section 8 of article VIII, in that it is an
attempt to make a town out of the city of Reno by special act of the legislature and govern the
same, in part at least, by laws applicable only to the city of Reno. The disincorporation of the
city of Reno would necessarily restore it to a town, which, under the constitution, could only
be governed by the general law relative to the government of towns or cities in this state not
controlled by special incorporation act. (Constitution, secs. 1, 8, art. VIII; Gen. Stats. 2024, et
seq.; Comrs. Washoe Co. v. Griswold, 23 Nev. 183; State v. Shearer, 23 Nev. 76.)
II. In Commissioners v. Griswold, 23 Nev. 187, the court says: There have been two
general systems for the government adopted by the legislature. One was by separate charter
incorporating the inhabitants of a designated locality and authorizing the election of their own
officers to administer local affairs. The other was by general law empowering the boards of
county commissioners of the county under specified conditions to assume the management of
the affairs and business of any town in their county. But it will be observed that the
legislature has been limited by the constitution to two methods in dealing with town and city
affairs, one by special charter and the other by general act, and the legislature has no more
power to pass an act regulating the government of an unincorporated town in a manner
different from that provided for in the general law than it has to pass a special act
regulating the county business of a certain particular county.
25 Nev. 68, 70 (1899) State v. Beck
that provided for in the general law than it has to pass a special act regulating the county
business of a certain particular county. (Williams v. Bidleman, 7 Nev. 68; State v. Boyd, 19
Nev. 43; Schweiss v. District Court, 23 Nev. 226.)
III. This act is special in the following particulars: Section 2 fixes the boundaries of the new
town of Reno, while section 1 of the general act (Gen. Stats. 2024) provides that the board of
commissioners shall fix such boundaries; said act provides that suits shall be continued by or
against the town of Reno, while section 1 of the general act provides that all suits shall be by
or against the board of county commissioners acting for the use and benefit of the inhabitants
of the town; section 2 of said act also provides that certain ordinances shall be and remain in
force until changed as provided for by law, but section 1 of the general act provides that the
board of commissioners shall have power to pass or adopt all ordinances, etc. Section 3 of
said act provides for a totally different method for the presentation and allowance of claims
against the town of Reno, than is provided for the other towns of this state in the general act
(Gen. Stats. 2027). Section 4 of said act provides a different time for the levying of taxes for
the year 1899 than that provided for in the general act (Gen. Stats. 2025).
IV. It is in conflict with art. IV, sec. 17 of the constitution, for, being An act to
disincorporate the city of Reno, it nevertheless proceeds, under a title suggesting or
indicating but one purpose, to define and establish the boundaries to embrace a new town;
provides for continuation of legal proceedings; perpetuates ordinances; creates a special
method for the collection of city obligations; appropriates and transfers to the new town the
property of the city; vacates all levies of taxes by the municipality for the year 1899, and
commands a levy by the board of commissioners for the town of Reno, forthwith. None of the
matters above enumerated, all of which are contained in the last four sections of the act, can
reasonably be said to be matter properly connected with the disincorporation of a city. If
one may rely on the constitutional command, that notice of the subject of an act is to be given
in its title, then they are improperly connected.
25 Nev. 68, 71 (1899) State v. Beck
V. The only subject the title expresses or indicates is disincorporation. Establishing a new
town and providing for its government is not properly connected therewith unless indicated
in the title, and it is foreign to the subject that is mentioned in the title. The title suggests the
doing of but one thing, and the legislative representatives being charged with knowledge of
existing law might, and probably did, assume that if Reno were disincorporated, the people
could and would avail themselves of a town government under the general law provided for
such purposes, not supposing, nor being put on notice by the title, that this act was providing
a special law for its government.
VI. The history showing the hasty passage of this act, in the absence of proper emergency,
under suspension of constitutional rules properly surrounding the creation of law, is in itself a
strong argument for the wisdom and rigid enforcement of art. IV, sec. 17, supra. (State v.
Silver, 9 Nev. 227; State v. Ah Sam, 15 Nev. 27-30; State v. Halleck, 19 Nev. 389-90; State v.
Hoadley, 20 Nev. 318-19.)
VII. The legislature must not pass a law impairing the obligation of contracts. (Art. I, sec.
10, Federal Constitution; art. I, sec. 15, Nevada Constitution.) The city of Reno had on March
4, 1899, existed, under the act providing for its incorporation, about two years, and had
transacted, as a municipality, a considerable volume of business, and presumably had on said
date outstanding obligations and contracts; indeed the disincorporation act in section 3
recognizes the existence of city obligations and contracts by providing a method of payment
which is special to the town of Reno. In that section the legislature exceeded its constitutional
rights, in that creditors of the city are attempted to be subjected to a more rigorous or less
favorable law than that under which those city obligations and contracts were made.
VII. The act of March 4, 1899, being a special law for a purpose which may be covered
by, and for which purpose, a general law existed at the time of its enactment, is in
contravention of sections 20 and 21 of the constitution. It is special in that it provides that all
claims and demands against the town of Reno shall be presented to and allowed, audited and
paid by the same officers, within the same time and in the same manner as claims or
demands against the county of Washoe are presented, allowed, audited and paid," etc.
25 Nev. 68, 72 (1899) State v. Beck
and in the same manner as claims or demands against the county of Washoe are presented,
allowed, audited and paid, etc. (Sec. 3 of the Act.) Under section 1965, Gen. Stats. (County
Government Act), all bills against the county must be presented in six months from the time
they become due, while, under said act of 1881, there is no time limit in which claims must
be presented. (Singleton v. Eureka Co., 22 Nev. 91; Schweiss v. District Court, 23 Nev. 226.)
IX. If the last four sections, or any of them, are unconstitutional, then the whole act is so, for
all the sections are necessary to effect the evident purposes of the legislature, for it apparently
would not undertake to disincorporate the city of Reno without complying with section 2024,
Gen. Stats., supra; in fact, it could not do so, for in that section it is provided, that in the
case of any disincorporated town or city the boundaries shall be fixed at the time of such
disincorporation, and the boundaries so fixed may be changed on petition, etc. In State v.
Comrs. Humboldt Co., 21 Nev. 235-40, this court said: Where all the provisions of the act
are connected in subject matter, depending on each other, operating together for the same
purpose, or otherwise so connected together in meaning that it cannot be presumed the
legislature would have passed the one without the other, the whole act should be declared
unconstitutional.
X. In the passage of the act under discussion, were the requirements of sec. 18, art. IV, of
our constitution complied with? An examination of the statute-roll indicates they were not.
The history of the bill, accompanying it, shows that it was introduced in the senate on March
2d, considered read and read by title, referred to judiciary committee, reported back by
committee, engrossed and by unanimous consent placed on third reading and passed by the
following vote: Yeas, 12; nays, none; absent, 3; all this being done on one day. The history
discloses no report of a case of emergency existing, nor of the suspension of the rules
requiring that every bill shall be read by sections on three several days in each house. On
March 3d it was sent to the assembly; was there read by title; referred to and amended by
committee; reported back and passed and returned to the senate, all on the said date, without
the suspension of the rules aforesaid as to the reading on three several days. "March 4,
substitute adopted in senate.
25 Nev. 68, 73 (1899) State v. Beck
sion of the rules aforesaid as to the reading on three several days. March 4, substitute
adopted in senate. March 4, taken up out of order, read third time and passed: Yeas, 12;
absent, 3. Is there anything in that history indicating an emergency, or that a long-felt want
for the measure, or anything else, had induced two-thirds of each house to dispense with the
mandatory rule of sec. 18, art. IV, of the constitution, on the ground of expediency? If the
law-making body may depart both from the letter and spirit of the constitution in this
particular, then it may in others, and we may never know what rules are to govern in the
enactment of our laws until after they are passed. True, this court has said, in State v. Swift,
10 Nev. 176, and State v. Glenn, 18 Nev. 35, that it cannot go to the legislative journals for
evidence nor receive oral testimony, or segregated documentary proof, to determine whether
an act was constitutionally passed, but the contention here is that the statute-roll and all
therein contained is evidence and may be considered.
XI. The previous decisions of this court, holding that the bare signatures of the presiding
officers of the senate and the assembly, of the secretary and the chief clerk thereof, and of the
governor, are conclusive evidence that the act questioned was passed with due observance of
the mandatory requirements of the constitution, should be overruled. Admitting that they are
fortified by the decisions of many able courts, it is submitted that their tendency is to
overcome and suppress inquiry for truth by the application of purely presumptive principles.
Under them the mandates of the constitution are subject to the mere caprice of the legislature.
Their doctrinal feature is rooted in the common law decisions of England rendered in a
country having no written constitution whatever. That they are opposed to the rule of decision
adopted by an overwhelming majority of the appellate courts of America is shown by citation
of decisions in appellee's brief in Field v. Clark, 143 U. S. on pages 298 to 301 of the
Lawyers Cooperative Edition.
XII. The authorities cited by respondents in support of the rule of decision that the face of
enrolled bills constitute an unassailable record when signed by the proper officers relate
principally to the contents of the bill and not to procedure followed in the legislative
consideration of the bill.
25 Nev. 68, 74 (1899) State v. Beck
cedure followed in the legislative consideration of the bill. It is believed that should the
former decisions be adhered to they should not be extended to an application beyond the face
of the bill.
XIII. The expressed opinion of respondents, that all of the act after the first section was a
secondary consideration of the legislature, and that its main object was the disincorporation of
Reno, is not justified by either the phraseology of the act or by its history. Its history shows
that the act as it originally passed the senate, judging from its title at that time, was of the first
section only. In the assembly a substitute was prepared consisting of the act as it now is, and
that form passed. The irresistible conclusion is that all after the first section constituted the
controlling motive in passing the act. They being unconstitutional, the whole bill must fall,
under the rule of decision repeatedly affirmed by this court.
XIV. Respondents cite no authority allowing affirmative legislation under a negative title,
but rest upon their claim that the first section is constitutional and overthrows the allegation
that they are usurpers. This claim, as before shown by relator, is not well taken, for the reason
that the unconstitutional sections were the motive and the inducement for passing the first
section, and the legislature intended for the act to be considered as a whole, and would not
have passed it had it not been so considered. The case of Turner v. Fish, 19 Nev. 295, cited
by respondents, is favorable to the contention of relator, because it recognizes the rule that,
where it is apparent the legislature intended all parts of an act as an entirety, the courts will
not attempt to segregate the different parts, but, if any is unconstitutional, the whole act will
be so declared.
XV. The oral argument of counsel for respondents, as well as their brief, practically
admits the unconstitutionality of all of the incorporation act except the first section. Upon this
admission alone the entire act should be declared unconstitutional, for the reason that, under
all of the facts of the proceeding, it is as clear as the noonday sun that they induced the
passage of the act as a whole. That the title of the act discloses nothing except the general
subject of disincorporation, does not seem to be seriously controverted.
25 Nev. 68, 75 (1899) State v. Beck
corporation, does not seem to be seriously controverted. The mandates of the constitution cry
aloud that this bold aggression be rebuked by this court.
E. L. Williams, District Attorney, and A. E. Cheney, for Respondents:
I. The act of the legislature disincorporating the city of Reno, having been duly attested by
the proper officers of both branches of the legislature, approved by the governor, and
deposited with the secretary of state, is unimpeachable, and its existence as a law, duly
passed, is conclusively established. (State v. Swift, 10 Nev. 176; State v. Nye, 23 Nev. 99;
Field v. Clark, 143 U. S. 649; Harwood v. Wentworth, 42 Pac. 1025; Lafferty v. Hoffman, 99
Ky. 80; Harwood v. Wentworth, 162 U. S. 547; Carr v. Coke, 116 N. C. 223; State v. Jones,
6 Wash. 452; State v. Jones, 23 L. R. A. 340, and note.)
II. The title of the act is sufficient. (State v. Ruhe, 52 Pac. 274; State v. Comrs. of
Humboldt Co., 21 Nev. 235; Ex Parte Livingston, 20 Nev. 288; State v. Ah Sam, 15 Nev. 27;
23 Am. and Eng. Ency., pp. 236, 238, 239, 241; Ackley School Dist. v. Hall, 113 U. S. 135,
142.)
III. The provisions of the act disincorporating the city of Reno, which relates to the
manner and time of allowing claims against the town of Reno, are involved in this
proceeding. The question here presented is not what powers the town of Reno, or those who
act for it, may exercise, but who may exercise them. If the provisions of this act are in conflict
with the constitutional provisions against special legislation, then the allowance and auditing
of town bills is regulated by the general law for the government of towns. (State v. Comrs. of
Humboldt Co., 21 Nev. 240; State v. Westerfield, 23 Nev. 468.)
IV. Paraphrasing what was said by this court in the case last cited, at page 474, it seems to us
that it cannot be reasonably inferred that the disincorporation of the city of Reno, and the
method and time of allowing and auditing bills against the town, are so dependent on each
other that the legislature would not have disincorporated the city without making town bills
allowable in a certain time and manner. The main object of the legislature was the
disincorporation of the city of Reno, and for some reason they thought it was advisable to
have the town bills allowed the same as county bills.
25 Nev. 68, 76 (1899) State v. Beck
of the city of Reno, and for some reason they thought it was advisable to have the town bills
allowed the same as county bills. It is evident to our mind that the legislature would have as
readily made the town bills allowable as provided by the general act for the government of
towns, if it had occurred to the members that they could not properly be allowed the same as
county bills.
V. It is contended that the title of the act in question is negative and can contain only
negative provisions. The first section of the act, which repeals the city charter, is certainly
negative, indicated by the title, and valid without regard to the other provisions of the act.
Being valid, it repeals the city charter and determines that the respondents did not oust or
usurp any of the duties or powers of the city council. In 1883 the legislature passed an act
repealing the law relating to the salaries of the county officers of this state (Stats. 1883, p.
78). The first section repealed the act referred to. The second section contained a provision
exempting from its operating any county having a duly chartered city government. The
validity of the act was questioned upon the ground that the provisions of section 2 were
unconstitutional, and this court replied by saying that, even if that contention was well taken,
the act was valid as a repeal of the former act, there being nothing to warrant the belief that
the two sections were so mutually connected with and dependent upon each other, as
conditions or compensations for each other, that the legislature intended them as a whole.
(Turner v. Fish, 19 Nev. 295.)
VI. It being sufficient for the purposes of this proceeding to determine that the first section of
the disincorporation act, which repealed the city charter, is a valid legislative act, the validity
of the other provisions need not be considered. It is a well-known rule of courts never to
pass upon a constitutional question unless it is clearly involved and a decision thereon is
necessary to a determination of a case. (State v. Meder, 22 Nev. 265.) Especially is this true
where, owing to a defect of parties before the court, any judgment that might be entered
would not be binding upon the real parties in interest. (State v. Comrs., 23 Nev. 247.)
Whether the county auditor has a veto power on town bills will be properly presented when
he attempts to exercise that power.
25 Nev. 68, 77 (1899) State v. Beck
erly presented when he attempts to exercise that power. He is not before the court in this
proceeding, and neither he nor any claimant would be bound by any decision now rendered.
VII. For the reasons last stated the question whether the disincorporation act violated the
obligation of any contract is not before the court. When a person representing a contract is
before this court and shows that by reason of this act he has been deprived of some vested
right under a contract, it will be quite time to determine if this act impairs the obligation of
his contract. (Sticknath Estate, 7 Nev. 223.) That question cannot be raised by quo warranto.
It in no manner relates to the title of respondents to this office. And the relator has not shown
any interest in the question of its being in violation of any contractual obligations. For such
grievances the law affords other and adequate remedies, and in such cases quo warranto will
not lie. (High, Extr. Leg. Rem., 3d ed., sec. 617.)
By the Court, Bonnifield, C. J.:
This is a proceeding by information, in the nature of a quo warranto, to determine the right
of the respondents, composing the board of county commissioners of Washoe county, to
manage the affairs and business of the town of Reno, which it appears they are now doing.
The respondents demur to the information upon the ground that it does not state facts
sufficient to constitute a cause of action.
An act entitled An act to incorporate the town of Reno was passed by the legislature
(Stats. 1897, p. 50), by which act said town, with boundaries specified, was incorporated on
and after the second Monday in April, 1897, by the name and style of city of Reno. The
corporate powers of the city were vested in a city council. On said last-named date the city
government was organized, and thereafter the corporate powers were exercised by the city
council. We find among the enrolled bills filed in the office of the secretary of state an act,
duly signed by the proper officers of each house of the legislature, and approved by the
governor, of date March 4, 1899, entitled Substitute for senate bill No. 67An Act to
disincorporate the city of Reno. (Stats. 1899, p. 84.) The body of the act is as follows:
"Section 1.
25 Nev. 68, 78 (1899) State v. Beck
Section 1. An act entitled An act to incorporate the town of Reno,' approved March 8,
1897, is hereby repealed.
Sec. 2. The land and territory now included in the city of Reno, with the boundaries as
they now exist, shall be and constitute the town of Reno. All judicial proceedings by or
against the city of Reno may be continued and prosecuted or defended by or against the town
of Reno, and all ordinances now in force in the city of Reno shall continue in force in the
town of Reno until changed as provided by law.
Sec. 3. All claims or demands now due or owing, or which may hereafter become due or
owing, from the city of Reno shall be valid claims or demands against the town of Reno, and
all claims or demands against the town of Reno shall be presented to and allowed, audited
and paid by the same officers, within the same time, and in the same manner as claims or
demands against the county of Washoe are presented, allowed, audited and paid; and all
money, property or effects of every kind and character now or hereafter possessed, belonging
or owing to the city of Reno shall be immediately transferred and possessed, and belong to
and be the money, property and effects of the town of Reno.
Sec. 4. The board of commissioners of Washoe county, acting for the town of Reno, shall
forthwith meet and levy taxes for the year 1899 for town purposes for the town of Reno, not
exceeding the amount now authorized by law, and all levies of taxes made by the city council
of the city of Reno for the year 1899 are hereby vacated and annulled.
Sec. 5. All acts and parts of acts in conflict herewith are hereby repealed.
The respondents are charged with usurping the functions, powers, and duties of the city
council of the city of Reno. The charge is based upon the theory and contention that the act
disincorporating the city of Reno is unconstitutional and void. If this contention be not
tenable, then there is no cause of complaint against the respondents. The contention of
counsel for relator is, in substance: (1) That the history of the bill, as disclosed by the
memoranda indorsed on the back of the bill, and by the journals of the respective houses,
affirmatively shows that the bill was attempted to be passed by both the assembly and the
senate with all readings thereof had upon the same day, without any pretense of deeming it
a case of emergency, and dispensing with the constitutional rule by a two-thirds vote or
at all."
25 Nev. 68, 79 (1899) State v. Beck
had upon the same day, without any pretense of deeming it a case of emergency, and
dispensing with the constitutional rule by a two-thirds vote or at all.
Counsel submit that our supreme court cannot uphold the enactment of the bill in
question without emasculating the requirements of section 18 of article IV of our organic
law, which section provides: Every bill shall be read by sections on three several days in
each house, unless in case of emergency two-thirds of the house where such bill may be
pending shall deem it expedient to dispense with this rule; but the reading of a bill by
sections, on its final passage, shall in no case be dispensed with, and the vote on the final
passage of every bill or joint resolution shall be taken by yeas and nays, to be entered on the
journal of each house; and a majority of all the members elected to each house shall be
necessary to pass every bill or joint resolution, and all bills or joint resolutions so passed shall
be signed by the presiding officers of the respective houses and by the secretary of the senate
and clerk of the assembly.
Section 35 of article IV of the constitution provides: Every bill which may have passed
the legislature shall, before it becomes a law, be presented to the governor. If he approve it,
he shall sign it; but if not, he shall return it, with his objections, to the house in which it
originated, which house shall cause such objections to be entered upon its journal and
proceed to consider it, etc.
Upon the question as to how far courts must treat an enrolled bill, authenticated by the
proper officers, as conclusive of the existence of the law, including the regularity and validity
of its passage, there is great diversity of opinion found among the decisions of the courts of
the several states where the question has been considered. There are numerous decisions
holding to the effect that an enrolled bill, signed by the proper officers, and deposited with the
secretary of state, must be accepted without question, by the courts, as conclusive evidence of
the existence and contents, and as having been regularly enacted by the legislature.
There is another line of decisions, holding, substantially, that it is the duty of the court to
determine, when the validity of an act of the legislature is brought in question before it,
whether the legislature has, or not complied with the constitutional provisions concerning
the procedure to be followed in passing bills, and that for this purpose the court may go
back of the enrolled bill, to see if the journals of both houses of the legislature show that
the requirements of the constitution were obeyed in the passage of the act in question.
25 Nev. 68, 80 (1899) State v. Beck
it, whether the legislature has, or not, complied with the constitutional provisions concerning
the procedure to be followed in passing bills, and that for this purpose the court may go back
of the enrolled bill, to see if the journals of both houses of the legislature show that the
requirements of the constitution were obeyed in the passage of the act in question.
Counsel for relator rely upon this line of decisions. But we are of opinion that the great
weight of the decided cases is against them, when the cases are considered with reference to
the reasoning and logical arguments found in the opinions contained therein.
We do not consider it worth while to cite the many cases outside of the Nevada Reports
which have adopted a rule contrary to that held by the courts on whose decisions the relator
relies.
In State v. Swift, 10 Nev. 176, it is held: Neither the journals kept by the legislature, nor
the bill as originally introduced, nor the amendments attached to it, nor parol evidence, can be
received in order to show that an act of the legislature, properly enrolled, authenticated, and
deposited with the secretary of state, did not become a law. It was held further: Where an
act has been passed by the legislature, signed by the proper officers of each house, approved
by the governor, and filed in the office of the secretary of state, it constitutes a record, which
is conclusive evidence of the passage of the act as enrolled.
In State v. Glenn, 18 Nev. 34, 1 Pac. 186, the court said: This court will not look beyond
the enrolled bill in order to ascertain the terms of a law. The fact that it is signed by the
proper officers of each house, approved by the governor, and filed in the office of the
secretary of state, is conclusive as to the passage of the act as enrolled, and is the only
evidence thereof.
In State v. Nye, 23 Nev. 99, 42 Pac. 866, the court said that the memoranda made by the
secretary of the senate and clerk of the assembly on the enrolled act are immaterial; that they
are not evidence of the existence or nonexistence of any matter material to be considered in
this case. The constitution makes the signing of an enrolled bill by the presiding officers of
the two houses, and by the secretary of the senate and clerk of the assembly, conclusive
evidence of the passage by the legislature; and when passed, and approved by the
governor, and filed in the office of the secretary of state, it constitutes a record which is
conclusive evidence of the passage of the act as enrolled, and in accordance with the
rules prescribed by the constitution relating to legislative procedure."
25 Nev. 68, 81 (1899) State v. Beck
the senate and clerk of the assembly, conclusive evidence of the passage by the legislature;
and when passed, and approved by the governor, and filed in the office of the secretary of
state, it constitutes a record which is conclusive evidence of the passage of the act as enrolled,
and in accordance with the rules prescribed by the constitution relating to legislative
procedure. In addition to the above cases, we simply note two important cases found among
many other like cases in line with the Nevada decisions.
In Field v. Clark, 143 U.S. 649, 12 Sup. Ct. 495a case involving questions of the
greatest magnitude, and elaborately argued by counsel of national reputationthe court, upon
a thorough consideration of the case, an extended review of authorities, and giving the most
cogent reasons therefor, held: The signing by the speaker of the house of representatives and
by the president of the senate, in open session, of an enrolled bill, is an official attestation by
the two houses of such bill as one that has passed congress; and when the bill, thus attested,
receives the approval of the president, and is deposited in the department of state according to
law, its authentication as a bill that has passed congress is complete and unimpeachable.
In State v. Jones, 6 Wash. 452, 34 Pac. 201, the court, in a clear and learned opinion, and
fortified by the soundest reasoning, held: An enrolled bill on file in the office of the
secretary of state must be accepted without question by the courts as having been regularly
enacted by the legislature. In the Jones case, above, the respondents' contention was that the
act involved in the case was not passed in conformity to certain mandatory rules of procedure
prescribed by the constitution.
The second contention is that the act is obnoxious to section 17, art. IV, 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. It is argued that the object of the act, as expressed by the title, was accomplished by
the enactment of the first section, provided it was constitutionally passed, and that the
additional sections are not germane to the subject of the act as expressed in the title. Upon the
authorities above cited, section 1 was constitutionally passed.
25 Nev. 68, 82 (1899) State v. Beck
authorities above cited, section 1 was constitutionally passed. Then the object of the act, the
disincorporation of the town of Reno, was affected, and we have a complete act, independent
of the additional sections.
It is contended that the act is special legislation, and therefore unconstitutional, in that
section 2 establishes the boundaries of the disincorporated town, when the general act for the
government of unincorporated and disincorporated towns provides that the board of county
commissioners shall fix such boundaries, and in that it provides that suits shall be
continued by or against the town of Reno, while section 1 of said general act provides that all
suits shall be by or against the board of county commissioners acting for the use and benefit
of the inhabitants of the town. So far as fixing the boundaries is concerned, if they can be
fixed only by the board of county commissioners, then said provision of section 2 is simply
useless, and not essential to the validity or efficiency of the provision disincorporating the
town. As to the provisions continuing suits by or against the town, there is nothing therein
prohibiting such suits being continued by or against the board of county commissioners
acting for the use and benefit of the inhabitants of the town, by proper substitution.
It is contended that the act is special legislation, unconstitutional and void, in that section 3
provides that the claims and demands named therein against the town of Reno shall be
presented, allowed, audited, and paid by the same officers, within the same time, and in the
same manner as claims or demands against the county of Washoe are presented, allowed,
audited, and paid.
The particular contention is that the general act for the government of unincorporated and
disincorporated towns does not limit the time in which claims or demands may be presented
after they become due, while the time for presenting claims against the county is limited to
six months after becoming due, and that, therefore, the act is special, as it limits said time,
while the said general act does not, said time being limited only by the general statute of
limitations, under which the limitation for the presentation of claims against towns is
extended two years, instead of six months, as in case of claims against the county; and,
further, that under said general town government act the county auditor is not vested
with authority to audit claims that have been allowed by the board of county
commissioners against the town, and that the act in question for this reason is special and
unconstitutional, and unconstitutional for the further reason that section 3 impairs the
obligation of contracts.
25 Nev. 68, 83 (1899) State v. Beck
as in case of claims against the county; and, further, that under said general town government
act the county auditor is not vested with authority to audit claims that have been allowed by
the board of county commissioners against the town, and that the act in question for this
reason is special and unconstitutional, and unconstitutional for the further reason that section
3 impairs the obligation of contracts.
But it does not appear by the complaint, or otherwise, that the relator is a creditor of either
the town or city of Reno; that he has any claim or demand against either, to be allowed by
said board, or to be audited by said county auditor. Courts will not consider an objection
made to the constitutionality of an act of the legislature by a party whose rights it does not
affect, and who has, therefore, no interest in defeating it. It is only when some person
attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void
as to him, his property, or his rights, that the objection to the unconstitutionality of a
legislative act can be presented and sustained. (Cooley, Const. Lim. 196, 197.)
Courts will not declare a statute void, as infringing vested rights, except at the instance of
a party whose rights are violated or impaired. (In re Sticknoth's Estate, 7 Nev. 223.)
The contention that the act is special legislation, and therefore void upon certain grounds
specified, relating to other provisions of section 2 and 4, we think is without merit, and need
not be further considered.
Finally, counsel for relator say, the irresistible conclusion is that all after the first section
constituted the controlling motive in passing the act, and upon this alleged conclusion they
base an argument against the constitutionality of the act. But the legislature has declared that
the disincorporation of the town of Reno was its object, its purpose, its controlling motive, in
passing the act, which is emphasized by the first section repealing the act of 1897
incorporating the town. That act being repealed, and it not appearing that the respondents are
exercising any powers not vested in them by law, the demurrer must be sustained, and the
proceeding dismissed.
Judgment is given and ordered to be entered accordingly.
____________
25 Nev. 84, 84 (1899) Hoppin v. First National Bank
[No. 1550.]
MARIA P. HOPPIN, Executrix of the Last Will and Testament of JOHN H.
HOPPIN, Deceased, Respondent, v. THE FIRST NATIONAL BANK OF WINNEMUCCA,
Appellant.
Attorneys of RecordWhat Sufficient to Constitute. In the absence of any notice or order of substitution, where
the record shows that certain attorneys have been acting for a party all through the case, except in the
filing of the original answer, and have been recognized as such by the court and the opposing counsel, it
cannot be said that they are not attorneys of record in the action.
Practice on AppealEffect of Failure to Endorse Affidavit for New Trial. Affidavits in support of a motion for a
new trial will be stricken from the record where not shown by the endorsement of the judge or clerk to
have been read or referred to on the hearing of the motion, as required by section 3217, subdivision 4, of
the General Statutes; and the requirement cannot be avoided by incorporating the affidavits in the body of
the statement on motion for new trial, since unauthorized.
MortgageForeclosureRelease of Joint Mortgagor. In an action to foreclose a mortgage executed by two
persons, only one of whom is made defendant together with a second mortgagee, where the plaintiff
admitted on the trial that the mortgagor, not made a party to the action, a partner of the defendant
mortgagor, had made a deed to plaintiff of her entire interest in the mortgaged premises in satisfaction of
the mortgage, it was error, as against the subsequent mortgagee of the property from the firm, to decree a
foreclosure against the interest of the defendant mortgagor for the whole amount of the note and
mortgage, since, if the admission in terms of plaintiff were true, then plaintiff's mortgage was discharged
and satisfied in toto, and the property was left primarily subject to the subsequent mortgage. But it was
intended that the conveyance so made should operate only as a satisfaction of the amount due from the
grantor, then, also, it was error to decree the entire mortgage debt to be a primary lien upon the property
as against the defendant mortgagee, as no such sum was due upon the note or the mortgage.
IdemRelease of One Joint ObligorLiability of Others. Under the provisions of sections 4931-4933 of the
General Statutes, the conveyance of one joint mortgagor of her interests in the mortgaged premises to the
plaintiff in satisfaction of the mortgage would operate as a release of her proportionate part of the
mortgage debt.
Appeal from the Second Judicial District Court, Humboldt County; A. E. Cheney, Judge.
Action by Maria P. Hoppin, Executrix of the last will of John H. Hoppin, deceased, against
The First National Bank of Winnemucca, and others, to foreclose a mortgage. From a decree
for plaintiff and from an order denying a new trial, the bank appeals.
a decree for plaintiff and from an order denying a new trial, the bank appeals. Reversed.
R. M. Clarke and H. Warren, for Appellant:
I. The said defendant assigns as error the decree of the court against T. L. Hoppin for the
whole sum specified in the note, and decreeing that the mortgage be foreclosed upon his
interest in the lands. The note and mortgage were joint, and the comortgagor, Luella V.
Hoppin, having conveyed to the plaintiff her entire interest (one-half) in the mortgaged
property, in satisfaction of the mortgage, the mortgage became and was merged in the title
thus conveyed. (Wiltsie on Mortgage Foreclosure, sec. 258, and cases cited.)
II. Luella V. Hoppin, the joint mortgagor, having conveyed to plaintiff all interest in the
mortgaged property in satisfaction of the mortgage, it became the duty of the mortgageethe
plaintiff's dutyto credit the mortgage debt with the value of the property conveyed. (Boyd v.
Jones, 38 Am. St. Rep. 100; Montague v. Seitz, 34 Am. St. Rep. 736; Hoy v. Branhall, 97
Am. Dec. 687; Webster v. Singly, 53 Ala. 508; Tennant v. Stoney, 1 Rich. Eq. 222; Andrews
v. O'Mahoney, 112 N. Y. 507.)
III. From these authorities it is clear the court erred in adjudging the whole mortgage debt
to be a charge against the interest of T. L. Hoppin in the property described in the mortgage.
The fact that T. L. Hoppin did not answer or defend in no way affects the right of this
defendant to subject whatever interest T. L. Hoppin had in the land to its mortgage; and
defendant was and is entitled to have the mortgage debt, at least, credited with the value of
the lands sold or conveyed in satisfaction of the Hoppin mortgage to this plaintiff.
IV. On the 17th day of May, 1897, the First National Bank, defendant, filed an
amendment to the answer it had heretofore made to the original complaint. This amendment
is verified by George S. Nixon, cashier of the bank, and is signed by Robert M. Clarke and H.
Warren, as attorneys for the bank. On the 18th day of May, 1897, defendant, First National
Bank, filed a second amended answer to the original complaint.
nal complaint. This second amendment of the answer is verified by George S. Nixon, cashier
of the bank, and is signed by Robert M. Clarke and H. Warren, as attorneys for the bank. The
attorney for respondents throughout the trial and all subsequent proceedings recognized and
treated said Robert M. Clarke and said H. Warren as attorneys for defendant, First National
Bank. The names of Robert M. Clarke and H. Warren as attorneys for appellant, First
National Bank of Winnemucca, were signed to the pleadings, stipulations, motions, and all
records after the filing of the original complaint, and that they were recognized as such
attorneys by the court in its decree, and by the attorney for respondent in all proceedings
during the trial and subsequent thereto. The names of Robert M. Clarke and H. Warren, as the
attorneys for the First National Bank of Winnemucca, being signed to the amendments to the
original answer of the appellant, it is presumed that they were such attorneys, and were duly
authorized and empowered to act as such. (Weeks on Attorneys-at-Law; Ency. of Law, 2d ed.,
vol. 3, p. 375; Roussin v. Stewart, 33 Cal. 208.)
V. Signing the amendment to the original answer of the appellant, First National Bank,
was an appearance by Robert M. Clarke and H. Warren for the bank for that purpose. (2
Ency. Pl. & Pr., p. 636, and cases cited in note 1.)
VI. By acknowledging the authority of Robert M. Clarke and H. Warren to appear and act
as attorneys for appellant, First National Bank, and by stipulating with them, and accepting
favors at their hands granted by them as attorneys for appellant, the respondent has
acknowledged their authority and is, under the settled principles of law, estopped to question
or deny it, and must be held to have waived the objection. (Livermore v. Webb, 56 Cal. 489.)
D.S. Truman, for Respondent:
I. The respondent here has made her motion: To strike out the statement on the motion for
a new trial on the ground that the notice of motion was not given by the attorney of record of
the defendant, the First National Bank, nor is there any statement in this case signed by the
attorney of record of this defendant. W. S. Bonnifield, Esq., is the only attorney of record of
this defendant.
attorney of record of this defendant. He entered the appearance of the said defendant by
demurrer, which was overruled. He then filed this defendant's answer, which was signed by
him as attorney for the bank. Messrs. Clarke and Warren were attorneys for defendants E.
Reinhart & Co., and some others, but not the bank. At the time of trial Messrs. Clarke &
Warren conducted the active defense of all of the defendants, including the defendant bank,
appellant here. W. S. Bonnifield had not been superseded nor retired, in any manner, from the
case. No notice of substitution has ever been given to respondent herein fact, none was
ever made or had. As against our contention, counsel here for the bank set up in this court the
only answer they could make, and that was that the plaintiff had waived this matter because
they had appeared at the trial, also signed papers in the suit, and had become also attorneys of
record in the case, but in this contention counsel are not borne out by the law and authorities,
which are numerous, and against counsel's contention. This same question has often been
raised in California, from which state our statutes relative to attorneys has been copied and
adopted, and the case of Prescott v. Salthouse is directly in point and on all fours with the
case at bar. (Prescott v. Salthouse, 53 Cal. 221.)
II. In the case at bar there were even no orders entering Messrs. Clarke & Warren as
associate counsel. Neither did they sign the notice or statement as being associated with
other attorneys, to wit: W. S. Bonnifield, Esq. In Whittle v. Renner, 55 Cal. 395, the same
showing was made that is attempted to be made here. It was a motion to dismiss the appeal.
In stating the facts of the case it is shown that there appears upon the answer, and upon the
notice of intention to move for a new trial, and upon the statement, an acknowledgment of
service, signed Edwin Shearer, attorney for the plaintiff,' and the findings and judgment
recite, that E. Shearer appeared as counsel for the plaintiff; but the court in rendering the
opinion says: T. A. Bantz was the attorney of record, and the notice was served upon E.
Shearer. There was no substitution of Shearer in place of Bantz, and the motion to dismiss
the appeal was granted. The question came before the same court in another form in the case
of Mott v. Foster, 45 Cal. 72. The attorney of one of the parties was absent from home,
and the other side obtained a stipulation from the other party to the suit, personally,
extending the time to file a statement on the motion for a new trial.
the case of Mott v. Foster, 45 Cal. 72. The attorney of one of the parties was absent from
home, and the other side obtained a stipulation from the other party to the suit, personally,
extending the time to file a statement on the motion for a new trial. In the supreme court a
motion was made to strike out the statement on the ground that it was not filed within the
time required by law, or order of court or stipulation of anyone having authority. The court
unhesitatingly granted the motion, and affirmed the judgment of the lower court. To the same
point is the late case of McMahon v. Thomas, 46 Pac. Rep. 732, which case reviews the
matter fully and sustains our position here. The same ruling is made in Hobbs v. Duff, 43 Cal.
485; Com. v. Younger, 29 Cal. 147; Willson v. Cleveland, 30 Cal. 192; Bogert v. Bancroft, 3
Caines, 127; Jerone v. Boreman, 1 Wend. 293; Gen. Stats. 2539-2541.
III. The respondent also moves to strike out the affidavits which appear in the record on
motion for new trial, if the court, by any manner or means, decides that the statement should
not be struck from the record, and the motion is based upon the ground that the affidavits are
not endorsed as having been read or used upon the hearing of the motion as required by law.
The affidavits, as a matter of fact, were never read or used, at the hearing at all. (See minutes
of the court on motion.) They were never presented to the court at all, but the law is clear on
that point. We were amply fortified with counter affidavits, which fully showed the
untruthfulness of those submitted by appellant, but those of appellant not being used or
referred to at all at the hearing, we have not had the same made a portion of the record here,
nor were they used any more than these were, but just in the same way, viz.: they are on file
in the case. The matter is res judicata in this court. (9 Nev. 232; 19 Nev. 225; 7 Nev. 27.)
IV. As to the position taken here by the defendant, that the court erred in decreeing the
mortgage to be a charge against all of the interest of T. L. Hoppin in the lands: The estate was
fully settled by the lower court and the legal presumption is that all prior claims against the
estate of H. L. Hoppin, and of the partnership of Hoppin Bros., had been fully settled and
paid, and that the distributive portions received by Thad and Luella Hoppin were
residuary shares, or else the court would not have attempted to distribute property that
was partnership property.
fully settled and paid, and that the distributive portions received by Thad and Luella Hoppin
were residuary shares, or else the court would not have attempted to distribute property that
was partnership property. The Hon. M. S. Bonnifield, of this court, was an attorney in this
estate matter, so the record shows; he also, so Mr.Nixon says, was the attorney for the bank
who told him that the title of the property was all right before the bank made its loan to Thad
and his mother. It was the real estate belonging, first, to the father, which, upon his demise,
was controlled by John Hoppin, as surviving partner of the firm of Hoppin Bros., until the
decree of distribution was made, but during the time it still belonged to the heirs of Henry
Hoppin, subject, of course, to the payment of the debts of the firm, and that the court had
legal evidence that the debts were either paid in full, or the creditors satisfied, must be held
by this court upon the showing that the decree was rendered, because this court will presume
that the lower court regularly pursued its authority in arriving at the conclusion that the decree
was rendered, and that no appeal, or other objection, was ever made to it. The only other right
in the property which could obtain against the heirs was the right of the executor or
administrator to first apply the property remaining after the settlement of firm obligations to
the individual debts of Henry Hoppin, if there were any such, otherwise the property real
immediately vested in the heirs at the time of the death of Henry Hoppin. Thad owned his
interest in the land then all of the time, and it can make no possible difference that the decree
of distribution was not made until 1892. This was not an after acquired title. (Gossage v.
Crown Point Co., 14 Nev. 153.)
The respondent, at the proper time, interposed a motion to discharge from the record the
statement on motion for a new trial, assigning as a reason therefor that the notice of motion
for a new trial was not given by the attorney of record of the appellant. The record discloses
the fact that the original answer of the appellant was signed by W. S. Bonnifield, Esq, as its
attorney. Thereafter the appellant filed certain amendments to its answer, signed by Robert M.
Clarke and H. Warren, Esqs., as its attorneys.
H. Warren, Esqs., as its attorneys. The decree recites that Clarke and Warren appeared as the
attorneys for appellant. The notice of motion for new trial and the statement on motion for a
new trial were signed by Clark and Warren as the attorneys for the appellant, and stipulations
were entered into by and between the respondent's attorney and Clarke and Warren as the
attorneys for the appellant, respecting the suit. In the absence of any notice or order of
substitution, where the record discloses the fact that certain attorneys have been acting for a
party all through the case, and have been recognized as such by the court and counsel of the
adverse party, it cannot be said that they are not attorneys of record in the action. (Livermore
v. Webb, 56 Cal. 489; Roussin v. Stewart, 33 Cal. 208; 2 Enc. Pl. & Prac. 636.)
The cases cited by the respondent in support of his contention show a state of facts
different from the one shown in the record in the case at bar, and, in a proper case, would
apply.
The respondent also asks us to strike out of the record certain affidavits in support of the
motion for new trial, offered under the fourth subdivision of section 3217 of the General
Statutes. This motion must prevail. The affidavits are not shown, by the indorsement of the
judge or clerk, to have been read or referred to on the hearing of the motion, as required by
the express terms of that section, and are, therefore, no part of the record. (Gen. Stats. 3219;
Dean v. Pritchard, 9 Nev. 232; Albion Con. M. Co. v. Richmond M. Co., 19 Nev. 225, 8 Pac.
480.)
We do not see how, under the provisions of this act, this requirement could be avoided by
incorporating the affidavits in the body of the statement on motion for new trial, as such
procedure is unauthorized, and the affidavits were not properly a part of, and could not be
properly made a part of, such statement.
We come now to a discussion of the merits made upon the record after the elimination of
the affidavits. The action was brought by the respondent to recover a judgment of foreclosure
against the defendant Thaddeus L. Hoppin, et al., of a certain mortgage upon real estate in
Humboldt county. The mortgage was made and executed by Thaddeus L. Hoppin and Luella
V. Hoppin to secure the payment of a certain note for $10,000, of date January 27, 1S91.
note for $10,000, of date January 27, 1891. The mortgage bears date of January 28, 1891, and
was recorded on the 7th day of March, 1894, in Humboldt county. Luella V. Hoppin was not
made a party to the action. The appellant, the First National Bank of Winnemucca, set up by
answer an indebtedness due it, secured by a deed executed as a mortgage upon the same real
estate by T. L. Hoppin & Co., a copartnership, claimed to consist of Thaddeus L. and Luella
V. Hoppin.
It is also claimed by the answer that the real estate was the property of the copartnership,
and that the indebtedness was copartnership indebtedness. The other defendants to the action,
upon their answers, and by the decree of the court, are eliminated from the case. Upon the
trial of the issues made by the complaint and the answer of the appellant, the court decreed a
foreclosure of a mortgage of the respondent, and the sale of the mortgaged property to satisfy
the mortgage debt, together with interest, attorneys' fees, and costs, as against the interest of
the defendant Thaddeus L. Hoppin in and to said lands; and out of any surplus arising from
such sale after the payments are made as aforesaid there should be paid to the appellant the
amount of its debt, together with interest and costs. The appellant interposed a motion for a
new trial, which was overruled, and from the judgment and decree aforesaid, and the order
denying he motion for a new trial, this appeal has been taken.
A number of errors have been assigned for the reversal of the judgment and order. The
statement on motion for a new trial discloses, among other things, that upon the trial of the
issues the respondent admitted that Luella V. Hoppin, one of the mortgagors in the
respondent's mortgage, and one of the joint and several makers of the note secured thereby,
and a member of the copartnership of T. L. Hoppin & Co., had made a deed to the respondent
of her entire interest in the mortgaged premises in satisfaction of the mortgage. It is claimed,
and assigned as one of the many errors relied upon by appellant, that, in view of the
admission, it was prejudicial error of the court in rendering its decree against the interest of
the defendant Thaddeus L. Hoppin for the whole sum due upon the note and mortgage.
We are unable to understand under what theory of the law the trial court disregarded this
admission, so broad and far-reaching in its effect. Luella V. Hoppin was not made a party to
the action. No judgment was sought against her on the note, or against her interest in the
property under the proceedings to foreclose the mortgage.
If the admission in terms were true, then the mortgage was discharged and satisfied, not in
part, and as to the interest of said Luella V., but in toto, and left the property primarily subject
to appellant's mortgage. But if, under a liberal construction of the language used in the
statement, it was intended that the conveyance so made should operate only as a discharge
and satisfaction of the amount due from Luella V. upon the note and mortgage, then, also, it
was error to decree the entire mortgage debt to be a primary lien upon the interest of
Thaddeus L. Hoppin as against the appellant's mortgage, as no such sum was due upon the
note or the mortgage. While, under section 3037 of the General Statutes, it might be optional
with the respondent to make Luella V. Hoppin a party, yet the release of Luella V. Hoppin,
shown by the admission in the statement, operated to release her proportion of the debt. For
authority in support of this proposition we need not look beyond the provisions of our statute.
It is expressly provided that any one of two or more joint debtors or parties jointly, or
jointly and severally, bound by any contract or judgment, may be released from his, her, or its
liability upon such contract or judgment, by the creditor or creditors, and such release shall
not operate, nor be held to operate, in law, as a release to the other debtor or debtors upon
such contract or judgment, except as to the released debtor's portion of such liability or debt
estimated upon the basis of the number of such debtors, but such release shall operate only as
a release of all liability of such debtor to the creditor in such contract or judgment, and as a
credit upon the same of such proportionate sum as herein provided. There are further
provisions of the same act relating to the method of procedure against the parties not released
for their proportionate part of the unsatisfied debt. (Gen. Stats. 4931-4933, incl.)
It will thus be seen that under this statute the conveyance by Luella V. Hoppin to the
respondent of her interest in the mortgaged premises in satisfaction thereof operated as a
release of her proportionate part of the mortgage debt, and a decree of the court by which the
interest of Thaddeus L. Hoppin was ordered sold for the payment of the entire mortgage debt
is erroneous.
Other questions are argued in support of this appeal involving the rights of the appellant as
a creditor of the firm of T. L. Hoppin & Co., one of which presents the question of the
primary liability of the mortgaged property for the payment of the appellant's claim as a
creditor of said firm as against the rights of the respondent; but we do not deem it necessary
to pass upon this question, because of doubt as to the correctness of any conclusion growing
out of the unsatisfactory condition of the record.
As such questions will likely be settled satisfactorily upon a retrial of the action, the
judgment and order appealed from will be reversed for the error above assigned.
Massey, J.: I concur.
Bonnifield, C. J., did not participate.
____________
25 Nev. 94, 94 (1899) Roberts v. Webster
[No. 1554.]
H. W. ROBERTS, Respondent, v. WILLIAM WEBSTER,
Appellant.
Practice on AppealConflicting TestimonyCredibility of Witnesses. This court will not weigh the testimony
nor determine the credibility of witnesses, and, where a material conflict is shown, the verdict of the jury
and the judgment of the trial court will be sustained.
Excessive DamagesPrejudice of Jury. Upon review of the evidence: Held, that the verdict of the jury was not
so excessive as to show that it was laboring under the influence of passion and prejudice.
Practice on AppealFailure to Specify Errors. Under Stats. 1893, p. 89, errors not specified in the statement on
motion for new trial will be disregarded.
Appeal from the Second Judicial District Court, Washoe County; A. E. Cheney, Judge.
Action by H. W. Roberts against William Webster. Judgement for plaintiff, and defendant
appeals. Affirmed.
Torreyson & Summerfield and E. E. Copeland, for Appellant.
Goodwin & Dodge, for Respondent.
This action was brought to recover damages alleged to have been sustained by reason of
the wrongful and fraudulent acts of the appellant while acting as attorney and trustee for the
respondent in matters relating to certain real estate in Washoe county, Nevada. In a trial of the
issues before a jury a verdict was returned in favor of the respondent, and judgment rendered
thereon. From this judgment, and an order denying the appellant's motion for a new trial, the
appeal has been taken.
We do not deem it necessary, under the assignment of errors, to recite in detail the
averments of the various pleadings, or the facts presented in the statement. It appears that
nearly the whole of the testimony adduced at the trial was given by the appellant and
respondent, and, in the main, these witnesses agreed as to nearly all the material facts.
The appellant assigns as error that the verdict of the jury and the judgment are contrary to,
and not supported by, the evidence. The points suggested by the appellant under this
assignment relate exclusively to such evidence as was given upon the trial by the parties, and
upon these points an examination of the record sufficiently establishes the fact that there was
material conflict between the testimony given by the respondent and that given by the
appellant.
It has been repeatedly decided that this court will not weigh the testimony or determine the
credibility of the witnesses, and where, as in this case, a material conflict is shown, the court
will sustain the verdict of the jury and the judgment of the trial court. Neither do we believe
that the verdict of the jury was so excessive as to show that it was laboring under the
influence of passion and prejudice against the defendant.
Much stress was placed in the argument upon certain objections to instructions given by
the trial court to the jury. This matter is not properly before us. It is expressly provided by our
statute that when notice of motion for new trial designates as the ground of the motion errors
in law occurring at the trial, and excepted to by the moving party, the statement shall specify
the particular errors upon which the party will rely, and, if no such specifications be made, the
statement shall be disregarded. (Stats. 1893, p. 89; Corbett v. Job, 5 Nev. 201.) The record in
this case shows that no specification of any error relating to the instructions was ever made,
and under the provisions of the statute, and the authorities above cited, the matter is not
before this court.
The judgment and order appealed from will therefore be affirmed.
on petition for rehearing.
The petition for a rehearing in this action is based upon the prejudice and passion of the
jury appearing from the excessive damages awarded by its verdict. The jury returned a verdict
for $1,500. The district court reduced the damages to $810.24, with the consent of the
respondent. The reason of the reduction is based upon the undisputed facts that the net
amount received by appellant from the mortgage and sale of the property was $1,620.4S, for
one-half which sum the appellant was liable.
sale of the property was $1,620.48, for one-half of which sum the appellant was liable. The
admitted value of the property was $5,000. It is evident that the jury took into consideration
this value in fixing the amount of the damages sustained by the respondent, having
determined the controverted facts establishing appellant's liability. The jury had a right to
consider the value of the property in determining the amount of damages sustained, and, in
view of this value, we are not prepared to say that the damages awarded by the jury were
excessive. The appellant cannot complain of the action of the district court in reducing the
amount.
The petition will be denied.
____________
25 Nev. 96, 96 (1899) Knox v. Rossi
[No. 1558.]
CHARLES L. KNOX, Appellant, v. GIOVANNI ROSSI,
Respondent.
Internal Revenue StampsPowers of CongressState Courts. That section of the war revenue law (Act of
Congress, June 13, 1898) providing that no instruments not duly stamped as required shall be admitted or
used as evidence in any court, is intended to apply to those courts only which have been established under
the constitution of the United States and by acts of congress and to which congress can properly prescribe
rules regulating the course and mode of administering justice, and does not apply to state courts.
(Reversing Maynard v. Johnson, 2 Nev. 25, and Wayman v. Torreyson, 4 Nev. 124.)
Action by Charles L. Knox against Giovanni Rossi. From a judgment for defendant,
plaintiff appeals. Reversed.
Frank H. Norcross, for Appellant:
I. The errors in law occurring at the trial and excepted to by the plaintiff were due to a
misconstruction by the lower court of the war revenue act relative to the introduction in
evidence of documents required by that law to be stamped by revenue stamps. So far as
appellant has been able to ascertain the war revenue law of 1898, in so far as it affects the
admissibility of evidence in state courts, has not as yet been construed by any court of last
resort, but, as the provision of the act in question is the same as that of former acts of the
same character, I deem the law upon the points in question to be settled.
25 Nev. 96, 97 (1899) Knox v. Rossi
construed by any court of last resort, but, as the provision of the act in question is the same as
that of former acts of the same character, I deem the law upon the points in question to be
settled.
II. Congress has no authority to declare that a written instrument, unless stamped, shall
not be received as evidence in a state court. (Duffy v. Hobson, 40 Cal. 240; Thompson v.
Wood, 42 Cal. 416; Carpenter v. Snelling, 97 Mass. 452; Green v. Holway, 101 Mass. 243;
Griffin v. Ranney, 35 Conn. 239; Latham v. Smith, 45 Ill. 29; Bunker v. Green, 48 Ill. 243; U.
S. Express Co. v. Haines, 48 Ill. 248; Craig v. Dimock, 47 Ill. 308; Pargoud v. Richardson,
30 La. Ann. 1286; Holt v. Board of Liq., 33 La. Ann. 673; Constitution of U. S., art. I, sec. 8;
Constitution of U. S., amendment X.)
III. Practically there are no decisions holding the contrary doctrine. (Gould & Tucker's
Notes to Revised Stats., sec. 3421.) There are some decisions to the effect that an objection to
an instrument that it is not stamped as required by the revenue laws is unavailing, unless the
party objecting proves that the stamp was omitted with intent to evade the act of congress.
(Authorities cited in respondent's brief in Duffy v. Hobson, 40 Cal. 242.)
IV. It may be contended that the cases of Wayman v. Torreyson, 4 Nev. 124, and Maynard
v. Johnson, 2 Nev. 16, 25, are in conflict with the decisions hereinbefore cited and so are
controlling in this case, but it will be observed that in neither of those cases was the question
of the admission of unstamped documents or documents stamped subsequent to the time of
execution as evidence considered or decided. And it would seem that upon the question
before the court in those cases the law as laid down by the court is not in harmony with the
great weight of authority in this county, and, if there is anything in the above cases that would
tend to hold that congress has any power to control the admission of evidence in state courts,
I submit that it is in conflict with what seems to be the settled law in the balance of this
Union.
V. There is nothing in the act in question which prohibits any person interested affixing
the stamp provided by the law to documents of the character offered as evidence in this case
at any time before their admission as evidence in the case, unless it affirmatively appear that
the stamp was left off with design to defraud the government, which is not contended in
this case.
25 Nev. 96, 98 (1899) Knox v. Rossi
unless it affirmatively appear that the stamp was left off with design to defraud the
government, which is not contended in this case. The act provides that certain documents or
instruments specifically mentioned and enumerated shall be stamped in a certain way in case
the stamp is omitted at the time, but the maxim expressio unius est exclusio alterius applies
in this instance, and all other documents not so specified may be stamped without the aid or
consent of the revenue collector. (War Revenue Law, secs. 13, 14.)
VI. In conclusion, we submit that the war revenue law of 1898, having been passed after
many of the state courts had construed the former law, and, there practically being no conflict
in the rule laid down that congress has no power to regulate the admission of evidence in state
courts, the present law must be construed in the light of those decisions and in accordance
therewith.
Goodwin & Dodge, for Respondent:
I. This cause came on for trial on September 28, 1898, at which time plaintiff sought to
prove the allegations of his complaint by the depositions of J. J. Rauer and Rosa Capre, which
he offered in evidence. Those depositions were objected to by defendant because the notary's
certificate had no internal revenue stamp affixed thereto, as required by that portion of
Schedule A (War Revenue Law of 1898, p. 14), which reads Certificate of any description
required by law not otherwise specified in this act, ten cents. For the want of a ten-cent
revenue stamp, sections 13 and 14 of said revenue act, provide (Sec. 14) That hereafter no
instrument, paper, or document required by law to be stamped, which has been signed or
issued without being duly stamped, * * * shall be admitted or used as evidence in any court
until a legal stamp * * * shall have been affixed thereto, as prescribed by law. The court
sustained the objection, whereupon plaintiff moved for a continuance to Wednesday, October
5, 1898, to enable him to have his documentary evidence duly stamped, which said motion
was granted, without objection. On October 5th the trial was resumed, and plaintiff again
offered said depositions in evidence and they were objected to on the ground that, it
appearing therefrom that the revenue stamp thereto attached had been affixed at a time
subsequent to the execution and issuance of the instrument, it should appear that said
stamp had been subsequently affixed in accordance with said section 13, to wit: "That he
had appeared before the collector of internal revenue of the proper district," etc.
25 Nev. 96, 99 (1899) Knox v. Rossi
that the revenue stamp thereto attached had been affixed at a time subsequent to the execution
and issuance of the instrument, it should appear that said stamp had been subsequently
affixed in accordance with said section 13, to wit: That he had appeared before the collector
of internal revenue of the proper district, etc. Objection being sustained, plaintiff then
offered in evidence a certified copy of the decree and transcript of the docket in the case of
Rosa Rossi v. Giovanni Rossi, which were objected to on the ground that no internal revenue
stamps were affixed to the certificates and canceled, as required by law. Thereupon plaintiff
rested and case submitted. Plaintiff did not move for another continuance to enable him to
have the certified copy of docket and decree of court duly stamped; nor did he offer to affix
stamps thereto; the documentary evidence offered, being partly stamped and partly
unstamped, or irregularly stamped, it was properly rejected by the court. (Sec. 14, War
Revenue Law, 1898; Carpenter v. Johnson, 1 Nev. 331; Maynard v. Johnson, 2 Nev. 16;
Wayman v. Torreyson, 4 Nev. 124; Bowker v. Goodwin, 7 Nev. 135.)
At the trial the plaintiff offered in evidence two depositions taken under a commission
issued to a notary public of the city of San Francisco, State of California, with his certificate
thereunto attached. One of these was objected to upon the ground that the stamps required by
the act of congress approved June 13, 1898, entitled An act to provide ways and means to
meet war expenditures and for other purposes, were not canceled upon the day the certificate
bears date. The other was objected to upon the ground that the certificate was not stamped as
required by the provisions of the before-mentioned law. Each objection was sustained, and
the evidence excluded.
We have not been referred to any adjudication of the provisions concerning stamped
instruments offered in evidence under the act of congress cited, but substantially the same
provisions, contained in the internal revenue law of 1862, have frequently been the subject of
judicial construction.
One of the early cases under this law was Carpenter v. Snelling, 97 Mass.
25 Nev. 96, 100 (1899) Knox v. Rossi
Snelling, 97 Mass. 452. After stating that the law did not, in terms, extend to state
courtsand the law of 1898 in this respect is the samethe decision proceeds: The
language of the enactment is only that no instruments or documents not duly stamped shall
be admitted or used as evidence in any court' until the requisite stamps shall be affixed. This
provision can have full operation and effect if construed as intended to apply to those courts
only which have been established under the constitution of the United States and by acts of
congress, over which the federal legislature can legitimately exercise control, and to which
they can properly prescribe rules regulating the courts of justice and the mode of
administering justice. We are not disposed to give a broader interpretation to the statute. We
entertain grave doubts whether it is within the constitutional authority of congress to enact
rules regulating the competency of evidence on the trial of cases in the courts of the several
states, which shall be obligatory upon them. We are not aware that the existence of such a
power has ever been judicially sanctioned. There are numerous and weighty arguments
against its existence. We cannot hold that there was an intention to exercise it, where, as in
the provision now under consideration, the language is fairly susceptible of a meaning which
will give it full operation and effect within the recognized scope of the constitutional
authority of congress.
In Green v. Holway, 101 Mass. 243, the same court said: The decision in Carpenter v.
Snelling, 97 Mass. 452, that this enactment must be limited to the courts of the United States,
and not be construed to extend to, if, indeed, it could constitutionally bind, the state courts,
was made after full consideration, is in accordance with the judgments rendered without a
doubt being raised upon this point, by the supreme courts of Vermont, Maine, and
Pennsylvania in the cases above cited, and with the later adjudications of the very question in
Griffin v. Ranney, 35 Conn. 239; Craig v. Dimock, 47 Ill. 308; Bunker v. Green, 48 Ill. 243;
and U. S. Express Co. v. Haines, 48 Ill. 248, and is in harmony with, if it does not fall within,
the principle of construction upon which the amendments of the constitution of the United
States securing fundamental rights in the modes of judicial proceedings have been held to
apply to such proceedings in the courts of the United States only, and not to those in the
courts of the several states.
25 Nev. 96, 101 (1899) Knox v. Rossi
been held to apply to such proceedings in the courts of the United States only, and not to
those in the courts of the several states. (Twitchell v. Com., 7 Wall. 321, and cases cited:
Livingston v. Moore, 7 Pet. 482, 551; Com. v. Hitchings, 5 Gray, 482.)
Decisions contrary to the views here stated were made in the cases of Maynard v. Johnson,
2 Nev. 25, and Wayman v. Torreyson, 4 Nev. 124, but when these cases were decided the
effect of congressional legislation upon the jurisdiction and practice of the state courts had
not received the careful judicial consideration afterwards given it, and no suggestion was then
made that the act of congress prescribed a rule of evidence for federal courts only.
Judgment reversed and cause remanded for a new trial.
____________
25 Nev. 101, 101 (1899) Ex Parte Gafford
[No. 1562.]
Ex Parte H. A. GAFFORD.
Criminal LawSentence. In the absence of a statute to the contrary, a sentence to imprisonment for a definite
term is not void because it fails to state when the term begins.
IdemIdemSecond Offense. Where the second sentence of a defendant already sentenced for another
offense fails to state the commencement of the term, it will run concurrently with the first.
IdemIdemJoint TrialHabeas Corpus. Under General Statutes (1885), 4240, 4293, providing that two or
more defendants may be jointly indicted and convicted for the same offense, a sentence against two
defendants jointly on a joint verdict, is not void, the court having jurisdiction, though the same may be
erroneous, but whether erroneous or not, cannot be determined on habeas corpus.
IdemHabeas CorpusAppeal. Habeas corpus proceedings cannot be used to authorize the exercise of
appellate jurisdiction.
Application for writ of habeas corpus. Denied.
Samuel Platt, for Petitioner.
W. D. Jones, Attorney-General, contra:
I. There is nothing in the statute that prohibited the court from pronouncing judgment on
the petitioner, by reason of the petitioner having been jointly indicted and convicted. Nor
does the statute require that a second sentence shall commence at any definite future period.
commence at any definite future period. Section 447 of the criminal practice act (Gen. Stats.
4327) is the only statute on the subject, and that has no application to this case. If it had, it is
directory only. (Ex Parte Kirby, 76 Cal. 514; People v. Furbes, 22 Cal. 135; 42 Fed. 829; 11
Utah, 119; 24 Wis. 492.)
II. The joint sentence of the petitioner was, at most, error or irregularity on the part of the
court below in not passing judgment on the petitioner separately. Such error must be taken
advantage of in the manner prescribed by statute. The defendant should, in due time, have
excepted to the action of the court and taken his appeal to this court. Habeas corpus is not the
proper writ to review the decision of a district court and correct its errors or amend its
irregularities. (Ex Parte Smith, 2 Nev. 341; Hurd on Habeas Corpus, 331 to 333.)
III. A joint sentence is not in violation of the statute. It cannot be found in the statute that
the sentence must be several. A person imprisoned is not to be discharged on habeas corpus,
unless the sentence exceeds the jurisdiction of the court, or there is no authority to hold the
prisoner. (9 Ency. Pl. & Pr. 1044; Ex Parte Wilson, 114 U. S. 417; Johnson v. Sayre, 158 U.
S. 109; 150 U. S. 637.)
IV. A judgment in a criminal case, showing the parties thereto, the court in which it was
rendered, directing the term of imprisonment, the prison in which defendant is to be confined,
and reciting the offense for which the prisoner is to be punished, is all the statute requires. (Ex
Parte Salge, 1 Nev. 449.)
V. The judgment in this case, made a part of the petition, clearly shows the parties thereto,
the court in which it was rendered; it directs the term of imprisonment to be for the term of
seven years, in the state prison of the State of Nevada, and recites the offense for which the
prisoner is to be punished as the crime of an assault with intent to kill.
VI. The facts show, clearly, in the petition for the writ, that the petitioner is confined in
the state prison of the State of Nevada, under and by virtue of that judgment, and that is the
end of the case. (10 Nev. 264; 11 Nev. 287.) Erroneous sentences rendered by inferior courts
having jurisdiction of the person and subject matter cannot be successfully attacked upon
habeas corpus, unless they are so far erroneous as to be absolutely void.
tion of the person and subject matter cannot be successfully attacked upon habeas corpus,
unless they are so far erroneous as to be absolutely void. (9 Am. & Eng. Ency. of Law, p.
222.)
Petitioner alleges that he is illegally restrained of his liberty by the warden of the state
prison. It is shown that on the 26th day of January, 1895, the petitioner was duly sentenced by
the district court of Washoe county to serve a term of four years in said prison for the crime
of an attempt to break jail; second, that on the 5th day of May, 1895, the petitioner and one
Seward Leeper, upon a joint indictment, trial, and conviction for the crime of an assault with
intent to kill, were jointly sentenced by said court to serve a term of seven years in said
prison, that it was not specified when said second term should begin, and that the petitioner
has fully served said first term.
Counsel contends that the second sentence is void for uncertainty, in that it neither
provides that the second term shall begin at the expiration of the first, nor at any other
specified time. But a sentence which does not specify any time for the imprisonment to
commence is not void. The better practice is not to fix the commencement of the term, but
merely to state its duration and the place of confinement, where the statute does not otherwise
provide. (State v. Smith, 10 Nev. 106; Bish. New Cr. Proc. 804, and cases cited.)
Where the defendant is already in execution on a former sentence, and the second sentence
does not state that the term is to begin at the expiration of the former, the second will run
concurrently with the first, in the absence of a statute providing a different rule. (21 Am. &
Eng. Enc. Law, 1075, note 4.)
The second contention is that where two or more defendants are convicted under a joint
indictment, they must be separately sentenced; that the said second sentence being against
said two defendants jointly, and not against each separately, it is void, in that it was not
within the jurisdiction of the court. Under the statute, two or more defendants may be jointly
indicted and tried for the same public offense; and, if the jury cannot agree upon a verdict
as to all, they may render a verdict as to those in regard to whom they do agree, on which
a judgment shall be entered accordingly, and the case as to the rest may be tried by
another jury.
and, if the jury cannot agree upon a verdict as to all, they may render a verdict as to those in
regard to whom they do agree, on which a judgment shall be entered accordingly, and the
case as to the rest may be tried by another jury. (Gen Stats. 4240, 4293.)
The court had jurisdiction of the subject matter embraced in the indictment, and of the
defendants, and jurisdiction to enter judgment against the defendants on the joint verdict of
the jury of guilty. The court having such jurisdiction, its judgment or sentence is not void,
however erroneous it may be. But whether erroneous, or not, this court cannot determine on
habeas corpus. Habeas corpus proceedings cannot be used to authorize the exercise of
appellate jurisdiction.
We can only look at the record to see whether a judgment exists, and have no power to
say whether it is right or wrong. It is conclusively presumed to be right until reversed, and,
when the imprisonment is under process valid on its face, it will be deemed prima facie legal;
and, if the petitioner fails to show a want of jurisdiction in the magistrate or court whence it
emanated, his body must be remanded to custody. (Ex Parte Winston, 9 Nev. 71, and
authorities there cited.)
Gen. Stats. 3689, provides that it shall be the duty of the judge, on the hearing, in case of
habeas corpus, if the time during which the party may be legally detained in custody has not
expired, to remand such party if it shall appear that he is detained in custody by virtue of the
final judgment of any competent court of criminal jurisdiction, or of any process issued upon
such judgment.
The writ issued herein is dismissed, and the petitioner remanded to the custody of the
warden of the state prison.
____________
25 Nev. 105, 105 (1899)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JULY TERM, 1899.
____________
25 Nev. 105, 105 (1899) State v. Beck
[No. 1560.]
THE STATE OF NEVADA, ex rel. OFFICE SPECIALTY MANUFACTURING
COMPANY, a Corporation, Relator, v. H. H. BECK, T. K. HYMERS, and
GEORGE H. FRAZER, as the Board of County Commissioners of
Washoe County, Nevada, Respondents.
Mandamus. Mandamus should not be granted to compel a technical compliance with the strict letter of a law, in
disregard of its spirit.
CountiesClaims AgainstStatutes. Relator presented its claim against Washoe county under the act of March
9, 1899 (Stats. 1899, p. 60). The transaction upon which the claim was based had previously been
adjudged fraudulent. It also appeared that there was no dispute as to the value of the property in question:
Held, that a county was not bound under the said act to submit the question of the value of certain
property to appraisers where there was no dispute as to its value, nor to pay the award of appraisers
appointed under its provisions regardless of any meritorious defense the county might have against the
claim, and, further, that the compelling of a county to pay a claim which had finally been adjudged by the
courts to be fraudulent, was not within its object.
Action by the State, on the relation of the Office Specialty Manufacturing Company, a
corporation, for a writ of mandamus against H. H. Beck, T. K. Hymers, and George Frazer, as
the Board of County Commissioners of Washoe County.
25 Nev. 105, 106 (1899) State v. Beck
as the Board of County Commissioners of Washoe County. Writ denied.
Torreyson & Summerfield and F. H. Norcross, for Relator.
I. Mandamus is the proper remedy to be invoked by relator. It was and is the specific legal
duty of respondents to allow relator's claim, and they were not clothed with discretionary
authority in the premises. (Stats. 1899, p. 60; Mau v. Liddle, 15 Nev. 271; Humboldt Co. v.
Churchill Co., 6 Nev. 30; State v. Blossom, 22 Nev. 71.)
II. That relator's cause is attained by fraud is an unwarranted assumption of respondents. It is
based upon undisputed evidentiary matters which brings the claim strictly within the scope of
the act of March 9, 1899. So far as the courts are concerned, the statute must be taken as
expressing the free will and wish of the legislature, whatever may have been the means
employed to secure its adoption, and irrespective of any agreements or understanding had
between members. Such matters the courts have no power of reaching. (Humboldt Co. v.
Churchill Co., 6 Nev. 30.)
III. The former decisions relating to the furnishing of the metallic furniture by relator to
Washoe county cannot properly be considered in this case. They were rendered under the law
as it then existed and upon facts, principally agreed upon, having applicability to the law at
that time. The original contracts were held to be fraudulent simply because they were
violative of the provision of law requiring advertisement in all cases where the consideration
amounted to $500. The act of 1899 is not limited in its operation by the amount or the value
of property furnished. The evidence before the appraisers shows clearly that relator was never
guilty of actual fraud. The act of 1899 provides a procedure to compel counties to do justice
and is in harmony with the general doctrine of the courts that municipalities must do justice.
(Norwood v. Baker, 172 U. S. 269; McConville v. St. Paul, 77 N. W. 993.)
IV. The act of 1899 is definitive of the nature and character of the claims which it affects
and affords a remedy for and the claim of relator is squarely embraced within the statutory
definition.
25 Nev. 105, 107 (1899) State v. Beck
for and the claim of relator is squarely embraced within the statutory definition.
V. The act of 1899 itself defines the class of claims which it embraces. It must be clearly
apparent that if the act was intended to affect valid and existing claims at the time of its
passage the act would have been superfluous and wholly unnecessary. It seems hardly
probable that the court will ascribe to the legislature an intent to do a useless thing by
enacting a superfluous law. The authority of the legislature by general law to provide for the
adjustment and the allowance and payment of claims against counties which are not
enforceable under existing law is practically unquestioned. These curative laws have many
times received the sanction of the courts. (Ritchie v. Franklin Co., 22 Wall, 67; Steines v.
Franklin Co., 48 Mo. 175.)
VI. Counsel state that the transaction out of which the furniture in question was delivered
to Washoe county, has thrice been adjudged fraudulent. But we do not understand that this
court or the lower court ever found actual fraud or corruption to have existed in the
transaction. The facts, proven and admitted, warranted the court in declaring that the same
constituted constructive fraud, further than this we do not understand that the court could, or
did find, under the pleadings and the proofs. If actual fraud exists in this case it certainly then
is not of the ordinary variety. Here was a very valuable lot of office furniture sold and
delivered to Washoe county. The county needed and wanted it for the preservation of its
public records. Prior to its sale and delivery to the county the grand jury had called the
commissioners' attention to the need of such furniture, and recommended that such need be
supplied. The commissioners carried out the suggestion of the grand jury and caused to be
manufactured and delivered by relator the furniture now in the clerk's office of Washoe
county, and no one has yet been found to come forward and say that the furniture was not
what was wanted or was not worth every dollar that was ever asked for it.
VII. The power of the legislature is fixed by the constitution, and courts cannot enlarge or
abridge that power. There is nothing in the constitution of this state which says that the
legislature may relieve one class of persons from the effect of certain acts, if occasioned
in a certain way, and not in another.
25 Nev. 105, 108 (1899) State v. Beck
is nothing in the constitution of this state which says that the legislature may relieve one class
of persons from the effect of certain acts, if occasioned in a certain way, and not in another.
There is nothing in the constitution which gives the judicial branch of government the
authority to determine what class of laws ought to be passed and what not, or to determine the
justness or injustness of laws, or whether this law or that is up to the proper moral standard.
This court, in a very able opinion by Chief Justice Lewis, found in 5 Nev. 283-314, discusses
the powers and prerogatives of the three coordinate branches of our state government. We
quote from that opinion, beginning on page 293: But, notwithstanding this very evident
investment of the legislature with the sovereign and omnipotent political power of the people,
it has been assumed by some judges, and so argued in this case, that the courts have the right
to annul an act of the legislature upon the sole ground that it is unjust; or, as it is put in this
case, opposed to natural justice; or, by some judges, as against the great principles of eternal
right.' We believe, however, that such doctrine cannot be reconciled with a correct view of
our form of government and the distribution of its powers. Whence this power in the judiciary
to pass upon the justice or injustice, the expediency or inexpediency of an act of a coordinate
branch of the government? It is not given in the constitution. The legislative power is not
limited in that instrument to the enactment of just laws, or such as may, in the opinion of
judges, be deemed expedient. Nor did the people think it necessary in any way to guard
themselves from laws incompatible with the uncertain thing called natural justice; or to hedge
themselves about with what judges are pleased to call the principles of eternal justice. This
question is simply one of power; the legislature either possesses it unlimited, or not at all. It
cannot depend upon the extent or character of the injustice embodied in any particular law.
The courts are no more authorized to annul a law of the legislature, because opposed to the
principles of natural justice, than because it may violate the simplest natural right. * * * If the
constitution has not limited the powers of the legislature to the enactment of just laws, or
such as do not conflict with the principles of natural justice, the courts have no more right
to so restrict it than they have to test the validity of a law by the dogmas of the church, or
the precepts of revealed religion.
25 Nev. 105, 109 (1899) State v. Beck
the principles of natural justice, the courts have no more right to so restrict it than they have
to test the validity of a law by the dogmas of the church, or the precepts of revealed religion.
If the legislature may be held to have transcended its power in enacting a law opposed to the
first principles of right, it may be held to do so at the pleasure and caprice of judges. The
power is no more given in the one case than the other. Such was not the will of the people as
expressed in the constitution, but rather that each of the three great departments should be
supreme within its sphere. Surely, the power to make the law must necessarily carry with it
the right to judge of its expediency and of its justice. (Gibson v. Mason, 5 Nev. 291-314.)
VIII. The legislature has power to relieve a person or a corporation from the effect of a
statute under the provisions of which a forfeiture of money or valuable property has occurred.
(Connor v. Bent, 1 Mo. 235; People v. Crennon, 141 N. Y. 239; Dennis v. Maynard, 15 Ill.
477.)
E. L. Williams, District Attorney, and A. E. Cheney, for Respondents:
I. The relator does not come with a cause free from fraud, or which justifies the exercise
of the courts discretionary power over this writ. (High, Extr. Leg. Rem., 3d ed., sec. 26; Com.
v. Henry, 49 Pa. St. 530, 538.)
II. All the decisions agree that the writ will not lie unless the applicant shows a clear,
legal right to the relief demanded. (State v. LaGrave, 22 Nev. 419.)
III. It is not clear and undoubted that the relator has any valid claim against Washoe county
to justify the finding of the appraisers or which comes within the purview of the act of March
9, 1899. That act only relates to valid subsisting claims.
IV. The act of March 9, 1899, does not purport to give a right of action. It does not
manifest any intention on the part of the legislature to legalize any invalid or unlawful claim
against any county. Even if it were admitted that it had the power so to do, the exercise of a
power of that doubtful nature is not to be inferred, nor raised by contention. The presumption
is that the law relates to valid and existing claims.
25 Nev. 105, 110 (1899) State v. Beck
claims. As to those it probably was intended to give a new remedy. The act in question does
not attempt to do any more. Whether the relator claims that it does more is yet unknown. It is
plain from the record that the relator had no cause of action when this act was passed. The
judgment, on demurrer in one action and on appeal in another, established that there was no
right of recovery in its behalf. The statute of limitation was a prohibition against its allowance
or payment by the county, and a complete extinguishment of the cause of action. (37 Cal.
196.) Having no claim against Washoe county at the time of the passage of this act, and the
act failing to give a right of action to any one, simply enumerating the conditions necessary to
enable one to avail himself of the new remedy, it should be construed, even if held
constitutional, as only intended to give a new remedy for those who have valid claims of a
certain character against a county. The title of this act, to regulate the allowance and
payment of certain claims against counties, manifests its whole scope and purpose. Its
express and only purpose is to regulate the allowance and payment of certain claims. There is
not a word indicative of a purpose or intent to relieve any person from any default or penalty,
not a phrase which manifests a desire to raise the bar of the statute of limitations, or avoid the
force and effect of judgments of unquestioned validity, nor a sentence which authorizes the
inference that any unlawful, fraudulent or illegal contract was to be legalized. On the
contrary, the title, the limitation of time, the designation of the class of claims, and the
persons who may avail themselves of it, the method of procedure therein set forth, and the
final consummation of the actan awarddemonstrates that this act is wholly remedial. It is
confidently submitted that the record shows that the relator is not entitled to the benefits of
the act of March 9, 1899, even if it is a valid legislative act.
V. Where a person acting in good faith has innocently sold and delivered to a municipal
corporation personal property, which it retains without making fair recompense, and the seller
is denied relief in the ordinary course of law because of a failure to comply with some statute
provision regulating the sale, many considerations of equity and justice plead in his behalf,
and if the case at bar were of that character, no fault could be found with the court if it
resolved every doubtful question in behalf of the claimant.
25 Nev. 105, 111 (1899) State v. Beck
tice plead in his behalf, and if the case at bar were of that character, no fault could be found
with the court if it resolved every doubtful question in behalf of the claimant. But such is not
this case. It has been thrice adjudicated that this relator attempted to enter into an illegal and
fraudulent contract with the board of commissioners of Washoe county, for the sale and
purchase of the property in question. Under these circumstances it comes before the court
with unclean hands, presenting a claim, illegal in its inception and thoroughly tainted with the
original frauds. As was said in Santa Cruz Rock Paving Co. v. Broderick, 113 Cal. 635, the
performance of a contract, knowingly made in violation of the law, raises no equitable
consideration in behalf of the violator, and the county of Washoe, which these respondents
represent, owe the relator no more obligation to indemnify it for loss which it has justly
sustained by reason of its fraudulent and illegal assault upon its public treasury. Ex dolo
malo non oritur actio. (Broom's Legal Maxims, p. 728.)
An act of the legislature approved March 9, 1899, provides:
Section 1. At any time within sixty days after the approval of this act any person, firm or
corporation, which has furnished and delivered to any county of the state of Nevada, personal
property which is retained by any such county under claim of ownership and for which such
county has paid no compensation, or has received in return and retains all payments which
have been made on account of such property by such county, is authorized to nominate in
written communications delivered to the county clerk, the chairman of the board of county
commissioners, and to the county auditor of such county, one appraiser, to fix the true value
of such property, and upon receiving such communication, the board of county
commissioners, at its first regular meeting thereafter, shall nominate one such appraiser, and
the county auditor, within five days after receiving such communication, shall nominate one
such appraiser. Thereupon the county clerk of such county shall at once notify each of said
appraisers, who, or a majority thereof, shall within ten days thereafter meet at the office of the
county clerk of such county and hear all evidence submitted to them and then shall
proceed to fix the true value of such property and file their written finding of such value,
or that of a majority of such appraisers, with such county clerk.
25 Nev. 105, 112 (1899) State v. Beck
county and hear all evidence submitted to them and then shall proceed to fix the true value of
such property and file their written finding of such value, or that of a majority of such
appraisers, with such county clerk. All evidence heard by such appraisers shall be
documentary or that of witnesses testifying under oath first administered by the county clerk
of such county. Upon the filing of such written finding of the value, the person, firm or
corporation furnishing and delivering such personal property, is authorized to file a claim
against such county for the amount fixed by such appraisers, or a majority thereof, and the
board of county commissioners shall allow, the county auditor shall audit and allow, and the
county treasurer shall pay the same. (Stats. 1899, p. 60.)
Claiming to be acting under and by virtue and in pursuance of the said legislative act,
the relator presented a claim against Washoe county in the sum of $1,498, for certain metallic
furniture it furnished and delivered to said county in the year 1896. The board of county
commissioners rejected said claim. The relator petitions for a writ of mandamus to compel
the board to allow the same. It appears that the relator appointed an appraiser, and gave
notices thereof, as provided by said act; that a majority of said board appointed one appraiser,
the chairman of the board refusing to participate in the matter, and the auditor refused and
failed to appoint an appraiser; that the two appraisers met, heard evidence as to the value of
said property, and fixed the same at the above-named sum.
A great many legal questions are presented, and objections made by counsel for
respondents against the issuing of said writ, and the act of the legislature is assailed as being
unconstitutional on several grounds. We do not deem it necessary to pass upon these several
contentions of counsel, except such as may be involved in the inquiry to which we direct our
attention.
Is the relator's claim within the spirit and meaning of said act? It seems clear that the
object of the legislature in passing the act was simply to provide a mode for determining the
question of the value of property furnished and delivered to a county where the value was the
only question in dispute between the county and the person furnishing the property.
25 Nev. 105, 113 (1899) State v. Beck
between the county and the person furnishing the property. Certainly the legislature did not
intend that a county should be bound to submit the question of value to appraisers when there
was no dispute as to the value, and that the county should be bound to pay the award of the
appraisers regardless of any meritorious defense the county might have against the claim. The
record shows, and relator's counsel admit in their brief, that there never was any dispute
between the relator and Washoe county as to the value of the property in question$1,498.
The agreed statement of facts shows that the question of the validity of relator's claim
against Washoe county with respect to said property has been directly involved in three
actions brought by the relator in the district court of said county, and that in each case said
claim was adjudged to be fraudulent on the part of the relator, and void, and that one of these
cases was appealed to the supreme court, and the judgment of the trial court affirmed. (24
Nev. 359.)
Whatever may have been the legislative object in passing the act, we presume it was a good
one, but we cannot indulge such violent presumption as that the object was to compel a
county to pay a claim which has been finally adjudicated by the courts to be fraudulent on the
part of the claimant.
Mandamus should not be granted to compel a technical compliance with the strict letter
of the law, in disregard of its spirit. (Wiedwald v. Dodson, 95 Cal. 450, 30 Pac. 580; State v.
Board Comrs. Phillips Co., 26 Kan. 419; High, Extr. Rem., 3d ed., sec. 9.)
The writ is denied.
____________
25 Nev. 114, 114 (1899) Thompson v. Crane
[No. 1559.]
STANTON, THOMPSON & CO., Appellants, v. E.
CRANE, et al., Respondents.
Motion for New TrialTime of Filing in Equity Case. In a chancery case, where a jury has been called to find
an issue of fact, the case is not tried until the chancellor passes on the verdict, and files his findings; and
consequently the time for a motion for a new trial begins to run from this filing.
Practice on AppealConflicting Evidence. In an action to set aside a conveyance as fraudulent against
creditors, a finding based on conflicting evidence will not be disturbed on appeal.
Public LandsGrants to RailroadsVesting of Title. Title under the Central Pacific land grant passed to the
railroad when the line was definitely fixed, and a transfer subsequent to that time, but before the railroad
received a patent, passed title.
Fraudulent ConveyanceConsiderationPossession. Where a grantee holds the equitable title to land under a
quitclaim deed and transfer of possession for valuable consideration, a subsequent conveyance without
further payment is not a voluntary conveyance without consideration, for the reason that such conveyance
could be compelled in a court of equity.
IdemIdemVoluntary. A transfer which the law would compel a party to make is not voluntary. Neither is
the transfer by the holder of the legal title to the equitable owner, although without pecuniary
consideration, a voluntary conveyance, and therefore fraudulent as to creditors.
Bill in equity by Stanton, Thompson & Co. against E. Crane and others. From a judgment
for defendants, plaintiffs appeal. Affirmed.
Trenmor Coffin and L. T. Hatfield, for Appellants:
I. Respondents' motion to dismiss this appeal, upon the ground that the notice of motion
for a new trial and the statement on the motion were not filed in time, is not well founded.
Counsel contends that the case was tried by a jury and that the motion and statement were not
within the statutory time after the rendition of the verdict. Appellant contends that it was an
equity case tried before the court. That the chancellor called a jury to assist him by finding
one special issue which was submitted to it, but which was not adopted or accepted by the
court until the rendition of the final decree.
not adopted or accepted by the court until the rendition of the final decree. Counsel for
respondents do not suggest that the notice of motion for new trial or statement were not in
time if the time began to run only after the entry of the decree of the court. The point has been
directly and squarely decided by this court. In an equity case, although a jury may be called to
find special issues, the time to move for a new trial, file a statement or to take any necessary
steps looking toward a review of the case, begins to run from the filing of the findings and
entry of the final decree. (Duffy v. Moran, 12 Nev. 94.)
II. The quitclaim deed given by E. Crane to Mrs. Howard in February, 1876, did not and
could not convey the after-acquired government title. The deed to Mrs. Howard in 1892 was
purely voluntary, entirely without consideration. As testified to by E. Crane in Thompson v.
Crane, 73 Fed. Rep. 327, and as found by the court, was given to her in order to distribute his
property among his children. The execution of the deed left E. Crane without property out of
which plaintiffs could satisfy their execution. (Thompson v. Crane, 73 Fed. Rep. 327.)
III. The alleged deed from Crane to Mrs. Howard, dated February 19, 1876, was a
quitclaim deed. The evidence adduced at the trial shows beyond question that the title had not
passed from the United States at that time. That subsequently the federal title was divested
and was involved in a conveyance directly to Crane himself, and that he paid four hundred
dollars for the title, being one hundred and fifty dollars more than the alleged consideration in
the deed to Mrs. Howard, and which effectually destroys any element of valuable
consideration from her to him. The evidence shows that from the date of the conveyance to
Crane of the Howard forty, every hour until the conveyance was made to her in 1892, Crane
exercised every element of ownership that was exercised in relation to that property. Upon the
question of want of title in Mrs. Howard, in addition to the elementary doctrine controlling
quitclaim deeds and their effect, the following authorities are deemed to be conclusive against
the claim of title in Mrs. Howard. A quitclaim deed does not convey a subsequently acquired
title of the vendor to the property.
vendor to the property. (Morrison v. Wilson, 30 Cal. 344; Anderson v. Yoakum, 94 Cal.
227-8.)
IV. The latter, a case wherein the habendum clause of a quitclaim deed it was covenanted
that any after-acquired property should vest in the grantee. It is clear creditors can receive
benefit of adverse possession of real estate of debtor if the circumstances are such as would
enable the debtor to assert title. Upon the adverse possession, we submit the following
authorities as conclusive against both Mrs. Stiles, formerly Dawes, and Mrs. Howard. If the
plaintiff shows that his possession has been continued for a period long enough to bar an
action for recovery, he establishes a title by prescription, and upon such proof, the burden is
thrown upon the defendant to show his right to retain the possession. (Goodwin v. Scheerer,
108 Cal. 690.)
Wren & Julien, for Respondents:
I. The guarantee of Crane to plaintiffs was not executed until May, 1892, sixteen years
after the conveyances were made by Crane to his daughters. A subsequent creditor who
becomes such with knowledge or notice of a conveyance made prior to his becoming such
creditor cannot, ordinarily at least, attack it as fraudulent. (Am. & Eng. Ency. of Law, vol. 8,
p. 752; Baker v. Gilman, 52 Barb. N. Y. 39; Lehmberg v. Beiberstein, 51 Tex. 457; Monroe
v. Smith, 79 Pa. St. 459; Herring v. Richards, 3 Fed. Rep. 443.) The rule requiring change of
possession does not apply to real estate. (Am. & Eng. Ency. of Law, vol. 8, p. 756;
Phittiplace v. Sayles, 4 Mass. (U. S.) 321.)
II. The deed from E. Crane to Mrs. Stiles was a bargain and sale deed given upon a good
consideration, viz.: five hundred dollars, and in part compliance with promises made by E.
Crane to his daughter before they left the east together and for the purpose of keeping her
near him at the ranch in Washoe county and of settling his property in part upon her during
his lifetime at a time when he was free from debt and in prosperous circumstances, and was
made without any intention to hinder, delay or defraud the holder of the note against Burke
and himself, and was a good and valid conveyance against the only party to whom he was
under any obligation, and is certainly good and valid as against the plaintiffs in this case.
obligation, and is certainly good and valid as against the plaintiffs in this case.
III. The conveyance to Mrs. Howard, of date February 19, 1876, was made substantially
under the same circumstances that the conveyance to Mrs. Stiles was made, but it was a
quitclaim deed. Some time prior to the making of this conveyance E. Crane had entered into a
contract with the Central Pacific Railroad Company to purchase this forty-acre tract and had
made a small payment on the purchase price. On the 26th day of October, 1880, the Central
Pacific Railroad and James O. B. Gun, and Silas W. Sanderson, trustees, conveyed the
Howard forty-acre tract to Ervin Crane, the railroad company having previously received a
conveyance to the same from the government of the United States. Under the agreement with
her father, E. Crane, Mrs. Howard had the equitable title to the land and the possession of the
same, and on the 7th day of July, 1892, E. Crane made a conveyance of this Howard
forty-acre tract to Mrs. Howard, the real consideration being the two hundred and fifty dollars
paid to Mrs. Howard in 1876, and the further agreement between E. Crane and Mrs. Howard.
This latter conveyance, therefore, was in no sense a voluntary conveyance, but was upon a
good consideration.
IV. The relations of E. Crane and Mrs. Howard cannot be more concisely or forcibly
stated than they are stated by Judge Cheney in his decision in the case, and we incorporate as
a part of this brief his language as follows, to wit: It is clear by the deed of February 19,
1876, Crane conveyed to Mrs. Howard whatever title and interest he then had in this land,
and he had surrendered possession of it and it was in the possession of her tenant, E. O.
Crane, before he assumed any liability to the plaintiff. When he made that deed he transferred
his interest in the contract with the company, and although the patent to the land did not issue
to the company until subsequently, yet the legal title to this land passed to the company at the
date of the grant and became fixed at the time the route was definitely fixed, and this appears
by the recital in the deed from the company to Crane given long prior to his deed to Mrs.
Howard. (Deseret Salt Works Co. v. Tarpey, 142 U. S. 248.) Mrs. Howard, as the assignee of
Crane and the purchaser for a valuable consideration and in possession, acquired the
equitable title to this land and could have compelled a conveyance to her by the company
of the property.
assignee of Crane and the purchaser for a valuable consideration and in possession, acquired
the equitable title to this land and could have compelled a conveyance to her by the company
of the property. Whatever title Crane, therefore, acquired he was bound in equity and good
conscience to transfer to her as he did in July, 1892. A transfer by the holder of the legal title
to the equitable owner, although without any pecuniary consideration, is not voluntary and
therefore fraudulent as to creditors. (Schreyer v. Scott, 134 U. S. 406; Cottrell v. Smith, 63
Iowa, 760, 18 N. W. 865.) A transfer which the law would compel a party to make is not
voluntary. (Bump on Fraudulent Con. 249; Transcript, vol. 1, pp. 227, 228.)
V. The deed of E. Crane to Mrs. Howard was for two hundred and fifty dollars and the
agreement entered into in addition. Under the contract of E. Crane with the railroad company
prior to 1876, he acquired an equitable interest in the land. The deed to Mrs. Howard of 1876
conveyed this equitable interest to her. Therefore, when the railroad company acquired the
legal title from the government by relation, it dated back to the date at which the company
became equitably entitled to the land, and when the company conveyed the land to E. Crane
the title of Crane under the deed by relation dated back to the date of the original contract
between Crane and the company, and the deed of 1876 to Mrs. Howard by relation vested this
title in her. (Crane v. Salmon, 41 Cal. 63; Thompson v. Spencer, 50 Cal. 532.)
VI. Counsel for plaintiffs contend that after Crane made the conveyances to his daughters
he acquired title to the two forties conveyed by adverse possession. Title cannot be acquired
by adverse possession unless it is open, notorious, exclusive and adverse to all the world and
especially to the true owner. There never was a day from the 19th day of February, 1876, until
the present time that E. Crane was in possession of the premises adversely to defendants.
We are asked to dismiss the appeal upon the ground that the notice of motion for a new
trial was not filed within the time required by law.
The proceeding is one in equity, and the trial court called a jury, to which was submitted
one special issue of fact, and the finding of the jury upon this question was adopted by the
court. Assuming that the trial was within the rule requiring notice of motion for new trial to
be given within five days after the rendition of the verdict, or requiring that any order
extending the time within which such motion might be made should be obtained within five
days after the rendition of such verdict, the respondents, not having waived their right to
make the motion in this court to dismiss upon the grounds above stated, contend that the
order extending the time in which to make the motion was not made within the time required,
and is therefore void, and, the notice of motion not having been given within the time, the
trial court had no power or authority to act in the proceeding.
This court has decided that the rule relied upon by the respondents does not apply to
proceedings of this character. It has been said by the court that: In a chancery suit the action
is not tried until the verdict has been sanctioned and established by the chancellor. In this case
it was not tried until after the argument of counsel as to what the judgment should be. There
is nothing in the transcript showing that the court submitted to the jury anything but the
special issues stated, and, it being a case of purely equitable cognizance, we cannot presume
the court called the jury for any other purpose except to be advised by it. Certainly, the fact
that the jury found against the plaintiff upon the issues submitted to them was necessarily no
proof that the court would finally so find after argument, or that the court would find against
him in any respect. We think this cause was tried by the court. If we are correct in the
conclusions already expressed, the court should have filed his finding within ten days after
the trial, either adopting or rejecting the findings of the jury. By its acts it did so in effect. Our
opinion is that the plaintiff not only had a right to think he had ten days after findings were
filed by the court in which to give his notice, but that he in fact had that length of time after
the court rendered its judgment for costs against him on the 3d day of December. (Duffy v.
Moran, 12 Nev. 98.) Under the rule just quoted the order extending the time and the
notice of motion for a new trial were within the time required, and the motion to dismiss
will therefore be overruled.
Under the rule just quoted the order extending the time and the notice of motion for a new
trial were within the time required, and the motion to dismiss will therefore be overruled.
This action was instituted by the appellants to set aside certain conveyances to real estate
in Washoe county, Nevada, made by one E. Crane to his daughters, Mrs. Amelia Howard and
Mrs. A. G. Stiles, and subject the same to the payment of a judgment in favor of the
appellants and against the said E. Crane. It is claimed by the appellants that these
conveyances were made without any consideration, and for the purpose of cheating and
defrauding the creditors of the said E. Crane, including the appellants. Judgment by default
was taken against the respondents Mrs. Howard and Mrs. Stiles, which was afterward, upon
their motion set aside, and an appeal taken by Stanton, Thompson & Co. from the order
vacating and setting the same aside. This court, upon such an appeal, affirmed the order of the
district court, and upon a trial of the issues subsequently had therein findings and a decree
were entered in their favor. A motion for a new trial was interposed. The same was denied,
and from the decree and order denying the new trial this appeal has been taken.
The material facts, briefly stated, and not disputed, are that on February 19, 1876, E. Crane
conveyed to his daughters, the respondents in this appeal, two forty-acre tracts of land, then
constituting a part of a ranch then owned and occupied by him in Washoe county, Nevada.
The tracts of land so conveyed were held by Crane under a contract of purchase from the
Central Pacific Railroad Company, the lands being within the twenty-mile limit of the grant
to that company, and in odd-numbered sections. Subsequently the purchase money was paid
to the railroad company, and on the 15th day of December, 1876, the patent of the United
States for these lands was issued to the company, and on October 26, 1888, the company gave
its deed therefor to the said E. Crane. On the 10th day of May, 1892, E. Crane became surety
on an agreement of guaranty with the plaintiffs upon which a judgment was entered against
him on the 8th day of October, 1892, in favor of the plaintiffs for the sum of $3,217.59 and
costs.
sum of $3,217.59 and costs. On July 7, 1892, E. Crane made a grant, bargain, and sale deed to
Mrs. Howard of the same lands; the deed of February 19, 1876, to her being a quitclaim deed.
Upon the judgment rendered against E. Crane in favor of the appellants execution was issued
and returned unsatisfied.
Upon the trial of the action the court submitted to a jury the following question: Was the
deed of E. Crane to Mrs. Amelia H. Howard of the S. E. 1/4 of the S. E. 1/4 of sec. 21, dated
July 7, 1892, made with the intent on the part of said E. Crane to hinder, delay, or defraud his
creditors, including the plaintiffs herein? to which question the jury answered, No. In its
findings of facts the court adopted the verdict of the jury, and specifically found in favor of
the respondents upon all issues made.
Under the assignment of errors counsel for appellants contend that the evidence shows that
these conveyances were made for the purpose of defrauding E. Crane's creditors, including
appellants; that they were without considerationmere voluntary conveyances; that there was
never any change in the possession of the lands after the execution of the conveyances; that
the grantor, E. Crane, continued after the conveyances to hold the lands adversely to any
claim of right of the respondents from the time of the conveyance until the commencement of
the action; that the execution of the conveyances practically stripped E. Crane of all property
subject to execution, and therefore, as a matter of law, were void as against existing and
subsequent creditors, and should be set aside.
These facts were not undisputed, and upon the trial, the court specifically found upon the
issues all the facts in favor of the respondents and adversely to appellants' claim. The record
discloses evidence both in favor of and against the contention of the appellants. It was the
duty of the trial court to find the true facts from the evidence, and where such findings have
been made upon a record showing a material conflict in the evidence, this court will not
disturb such findings or a decree founded thereon. It therefore becomes unnecessary to
discuss the rules of law controlling such cases, so exhaustively presented in the briefs.
But one other question remains to be considered. The appellants claim that the second
conveyance, under date of July 7, 1892, to Mrs. Howard, for the same lands contained in the
quitclaim deed of February 9, 1876, is shown to have been voluntary, and without any
consideration, and, as the quitclaim deed did not convey the after-acquired title of E. Crane
from the Central Pacific Railroad Company to the lands, that the lands were therefore subject
to the payment of appellants' judgment, and the court should have so found and decreed. At
the time of the execution of the quitclaim deed, in 1876, E. Crane had a contract for the
purchase of the lands from the Central Pacific Railroad Company, they being within the
twenty-mile limit of the grant to that company, and the odd-numbered sections.
While it is true that the Central Pacific Railroad Company did not receive the United
States patent for the lands, yet, as a matter of law, the title thereto had passed to the company
at the date of the grant, and became vested at the time the route of the road was definitely
fixeda long time prior to the execution of the quitclaim deed to Mrs. Howard. (Deseret Salt
Co. v. Tarpey, 142 U. S. 248, 12 Sup. Ct. 158.) The conveyance of this land by the quitclaim
deed, for a valuable consideration, and the surrender of the possession thereof to Mrs.
Howard, certainly operated as a transfer of the equitable title thereto, and the subsequent
transfer in 1892 therefore cannot be said to have been a mere voluntary conveyance without
consideration. Mrs. Howard, under the facts, could have compelled the conveyance in a court
of equity.
A transfer which the law would compel a party to make is not voluntary. (Bump, Fraud.
Conv. 249.) Neither is the transfer by the holder of the legal title to the equitable owner,
although without pecuniary consideration, a voluntary conveyance, and therefore fraudulent
as to creditors. (Schreyer v. Scott, 134 U. S. 406, 10 Sup. Ct. 579; Cottrell v. Smith (Iowa), 18
N. W. 865.)
The judgment and order appealed from will therefore be affirmed.
____________
25 Nev. 123, 123 (1899) Davis v. Simpson
[No. 1557.]
SAMUEL DAVIS, Petitioner, v. JOHN SIMPSON, et al., as the Board of County
Commissioners of Lincoln County, Respondents.
County BondsLimitationsWhen Statute May Not Be Pleaded. Under act of February 17,1873 (Stats. 1873,
p. 54, sec. 8), which provides for the collection of a special tax for the year 1873, and annually thereafter,
to be applied first to the payment of the interest on certain county bonds; and section 10, which creates a
sinking fund into which shall be paid any surplus, after payment of the interest, until such fund shall be
sufficient for the payment of the bonds, and board of county commissioners, on failure or refusal to
collect such tax, may be required by mandamus to levy and collect it, and will not be permitted to plead
that the tax was not levied for more than the period of limitations, and that the bondholders' right of
action is barred.
LimitationsCounties. It is a general rule that, when payment is provided out of a particular fund, or in a
particular way, the debtor cannot plead the statute of limitations without showing that the particular fund
has been provided or the method pursued.
Application by Samuel Davis against John Simpson and others, Board of County
Commissioners of Lincoln county, for a writ of mandamus. Writ awarded.
Freeman & Bates, for Petitioner:
I. Bonds draw interest after maturity of last coupons at same rate as coupons represent.
(Simonton on Municipal Bonds, sec. 101; Pruyn v. Milwaukee, 18 Wis. 367; People v.
Getzebdaber, 137 Ill. 234; Kendall v. Porter, 120 Cal. 106.) This subject is fully discussed in
the majority opinion of the Supreme Court of California, at page 109 of the opinion in the
case last cited. We insist, however, that the subject is placed beyond any doubt by the express
provisions of the act under which the Lincoln county bonds were issued (Stats. 1873, p. 54),
which declares that the bonds shall bear interest at the rate of ten per cent per annum from
the 1st day of March, 1873; the interest to be paid upon presentation, at the office of the
county treasurer, on the 1st day of January, 1874, and on the 1st days of January thereafter,
until said bonds are paid and liquidated. From the foregoing authorities it is evident that
there is no legal difference between the annual interest maturing before bonds fall due, and
represented by coupons, and the annual interest maturing thereafter, and not so
represented.
and represented by coupons, and the annual interest maturing thereafter, and not so
represented.
II. The terms of the act creating these bonds withdraw them from the operation of the
statute of limitations. The bonds were issued to fund a floating indebtedness then existing.
(Stats. 1873, p. 54.) The act provided that the annual interest should continue until said
bonds are paid and liquidated. The bonds themselves were to be due and payable on or
before January 1, 1883. This gave the county the right to pay them at any time, and illustrates
the meaning of subsequent sections of the funding act and the intention of the legislature in
passing the act in the form it did. Section 8 of the act directs the levy of a special tax of
forty-five cents on each one hundred dollars of taxable property and provides that said levy
shall be made for the year 1873 and annually thereafter until the principal and interest of said
bonds to be issued shall be fully provided for. The act further provided that the treasurer
should use this tax only to pay the annual interest, and thereupon turn over any balance to a
sinking fund which should be used to redeem the bonds by advertising for their surrender in
the manner designated in section 12, and accepting the lowest bid. The whole scope and
purpose of the act was to allow Lincoln county to pay whenever it had the money to do so.
The act constituted a contract between the county and its creditors which is valid and binding
equally on both. The creditors, on their part, could insist only that the tax of forty-five cents
on the hundred dollars be levied and collected annually until they were paid. The county
could pay them as soon as it chose to do so, but, until it had paid principal and interest in full,
it could not refrain from levying the annual tax. As if to emphasize this fact, it was provided
in section 18 that any county officer failing to comply with any provision of the act should be
guilty of a misdemeanor and should be subject to a fine not exceeding one thousand dollars
and removal from office. The agreed statement of fact on file in this proceeding shows that
the county authorities of Lincoln county have, for many years, failed to levy the tax; that
petitioner's bonds and all interest maturing thereon since January 1, 1883, are unpaid, and no
means of payment exist unless he can insist that the tax of forty-five cents on the one
hundred dollars be levied and collected.
of payment exist unless he can insist that the tax of forty-five cents on the one hundred
dollars be levied and collected.
III. The Lincoln county bonds carry with them the pledge of an annual tax set apart into a
special fund to be applied solely to their payment and liquidation. The bondholders are
entitled to have this tax annually levied until their bonds, and the annual interest thereon,
have been fully paid, and until this fund has proved sufficient for these purposes the county
cannot successfully plead the statute of limitations. Its failure to levy the tax for many years
cannot create that defense. (Meyer v. Brown, 65 Cal. 583; Davis v. Lincoln Co., 23 Nev. 262;
Luning v. Lincoln Co., 133 U. S. 529; Sawyer v. Colgan, 102 Cal. 283; Freehill v.
Chamberlain, 65 Cal. 603.) To pay petitioner's interest, and also to finally redeem his bonds,
it is necessary that the tax be levied and collected as prayed for in his petition. The legislative
promise was that the tax should annually continue until the principal and interest of the bonds
was fully provided for, and petitioner respectfully asks that this court enforce performance of
that promise by its writ of mandate.
IV. Petitioner insists that the law is that, where a bonding statute provides and pledges an
annual tax for the bonds, the creditor has a right to presume that this will be provided, and for
payment through this fund he may safely wait. Nor can the municipality, by neglecting for
years to levy the promised annual tax, create the defense of the statute of limitation. None of
the cases cited by respondents will be found to be authority against petitioner's contention. An
examination of the cases will disclose the fact that no fixed annual tax was pledged to the
payment of the demands, except only the cases of Justices v. Orr, 12 Ga. 137, and Carroll v.
Board of Police, 28 Miss. 38, and in these two cases the opinions express the law to be as
contended for by the petitioner in this case.
V. We think the question now presented is not materially different from the question
determined in the action between these same parties, decided by this court, and reported in 23
Nev. 262. If this be true, then that decision is res judicata, and this court may grant petitioner
the relief he desires without further examining the decisions he has cited, or considering the
legal propositions he has advanced.
cited, or considering the legal propositions he has advanced. The act of 1877 (Stats. 1877, p.
46), which this court specially considered in deciding the former case, does not place the
coupons in any different position as to payment than the interest subsequently maturing and
not having any coupons to represent it. It is the interest which the county treasurer is required
to pay and to give certificate if payment is impossible. It is this same interest which the
petitioner now asks the county to provide for and which it has refused to do. In the former
case it had made a like refusal, which this court determined to be wrongful. That it was
coupons there in issue, which the treasurer had registered, was an immaterial matter, because
so far as the coupons themselves were concerned, they were simply representative of the
annual interest, and the registration related merely to order of payment, but did not provide
for the annual levy of a special tax of forty-five cents on the one hundred dollars, and the
creation of a special fund. These necessary things were in the original act, and it is these
promises which prevent the promissor from pleading with success the statute of limitations.
Necessarily these things were before the court in the former case, and being there we think
that decision is now controlling, whether they were mentioned by the court or not. (People v.
S. F., 27 Cal. 675; Sacramento Bank v. Alcorn, 121 Cal. 379.)
F. R. McNamee, District Attorney, for Respondent:
I. It may be contended by relator that the case at bar is res judicata, owing to a decision of
this court rendered on the 17th day of August, 1896, between the same parties (23 Nev. 262,
45 Pac. 982); but we earnestly contend that this case is res integra, for the former proceeding
was to compel a levy to pay detached coupons which had regularly been presented under the
law of 1877 (Stats. 1877, p. 46), and endorsed by the officers of the county Not paid for the
want of funds. This, as held in the former decision of this court, created a new right upon
which the relator might rely for payment, and that the statute would not begin to run until a
fund was provided. Assuming that the court will consider the case at bar as res integra, we
respectfully contend that the authorities cited in the former decision do not apply in this case,
for, in Freehill v. Chamberlain, 65 Cal.
for, in Freehill v. Chamberlain, 65 Cal. 603, the holders of the bonds and coupons against the
city of Sacramento were expressly prohibited from suing the city in any case to collect the
same by the very act under which the bonds were issued. Consequently the holders in such
case were left without any remedy by suit or otherwise, and the court wisely held that the
statute in such cases did not run. In the case of Sawyer v. Colgan, 102 Cal., cited in the
former decision, it was a proceeding against the state, and in that case it was held that the
statute did not begin to run for the reason that the state could not be sued without its consent.
In Underhill v. Sonora, 17 Cal. 172, there was a new provision by the legislature for the
payment of the bonds made with the consent of the defendant, and it was in the nature of a
new promise or acknowledgment of the debt. In the case of Luning v. Lincoln County, 133 U.
S. 529, the decision was based entirely on the coupons, as the statute had not as yet run
against the original bonds, and the coupons, as in the former case of Davis v. Respondents,
were held not barred, for the reason that they were endorsed under the law of 1877, and that
the endorsement was in the nature of a new promise upon which the holder might safely wait
for payment.
II. It is admitted in this case that the relator's bonds matured or fell due on the 1st day of
January, 1883; that, after the year 1885, the board of county commissioners of Lincoln
county, never levied any tax for the payment of any bonds or coupons issued under the law of
1873 until the year 1897, when they were compelled to by a decision of this court, in order to
pay the detached coupons of the relator. The coupons for the payment of which the former
proceeding was brought are fully paid. For six years subsequent to the year 1885, the time at
which the right of action accrued to said relator on said bonds, no action was taken, nor was
any action taken to the present year, 1899, to enforce the payment of said bonds or to reduce
the same to judgments. The language used in said bonds is that ordinarily used in a
promissory note, to wit: The county of Lincoln promises to pay ___ on or before the 1st day
of January, 1883, etc. The bonds became due at that date, and, assuming that the holder was
not required to bring any action or proceeding to protect his bonds until the tax levy failed,
he certainly was compelled after the year 1SS5, when the commissioners failed to levy, to
bring his action before six years expired, or his right of action would be barred as in the
case of a note or other promise in writing to pay.
ing to protect his bonds until the tax levy failed, he certainly was compelled after the year
1885, when the commissioners failed to levy, to bring his action before six years expired, or
his right of action would be barred as in the case of a note or other promise in writing to pay.
The sum of $600 remained uncalled for in the special fund designated by said act of the
legislature for the payment of said bonds and interest from the year 1885 to the month of
March, 1894. The statute of limitations began to run on the bonds from their maturity
regardless of whether there was money to pay them or not. When might this action have
been instituted, is the question; for from that time the statute must run. (Amy v. City of
Dubuque, 98 U. S. 470; Golman v. Conway Co., 10 Fed. Rep. 888; Baker v. Johnson Co., 33
Iowa, 151; Justices v. Orr, 12 Ga. 137; Carroll v. Board of Police, 28 Miss. 38; Shirk v.
Pulaski Co., 4 Dillon, 209; Coler v. Bond, 27 Pac. 624; Schloss v. Board, 28 Pac. 18; Gen.
Stats. 3629.)
It is shown by the petition that pursuant to an act of the legislature approved February 17,
1873, Lincoln county issued and delivered certain bonds to one Harry I. Thornton; that the
petitioner was and is the owner and holder of said bonds; that said bonds, nor any part of
them, have not been paid, and that the interest thereon from the date of maturity to the 1st day
of January, 1899, amounting in the aggregate to $9,620, is also due and unpaid.
It is also shown that the respondents, as the board of county commissioners of said county,
have refused and neglected to levy the special tax provided for in said act for the purpose of
creating a fund for the payment of said bonds and the interest due thereon.
To the petition the respondents have answered, in effect admitting the material averments
therein, but alleging as a defense thereto that since the year 1885, and up to the year 1896, the
respondents have not levied or collected any interest tax for the payment due on said bonds
under the provisions of the act of 1873; that of the proceeds of the tax levied for interest on
the outstanding bonds of said county in 1885 there remained in the interest fund of said
county, up to 1S94, the sum of $600 applicable to the payment of said bonds and interest;
that in March, 1S94, the sum of $590 of said sum was paid out upon interest coupons
then presented, leaving a balance in said fund of $10; that the cause of action set forth in
the petition did not accrue to the holder of said bonds within six years immediately
preceding filing the petition, and therefore the statute of limitations applies against the
bonds and any interest alleged to be due thereon since the date of maturity.
1894, the sum of $600 applicable to the payment of said bonds and interest; that in March,
1894, the sum of $590 of said sum was paid out upon interest coupons then presented,
leaving a balance in said fund of $10; that the cause of action set forth in the petition did not
accrue to the holder of said bonds within six years immediately preceding filing the petition,
and therefore the statute of limitations applies against the bonds and any interest alleged to be
due thereon since the date of maturity.
The facts stipulated are that from 1885 to 1896 the board of county commissioners did not
levy or collect a tax provided for in section 8 of the act approved February 17, 1873 (Stats.
1873, p. 54), nor did they levy any tax during said years for said bonded indebtedness, or any
part thereof; that of the levy of 1885 the sum of $600 remained in the interest fund until
March, 1894, when $590 thereof was paid out upon the coupons of said bonds; that the sum
collected from the tax levy of 1896, 1897, and 1898 amounted annually to about the sum of
$2,400, and was consumed in paying coupons of said bonds which matured on January 1,
1883, and prior thereto; that no interest maturing on petitioner's bonds subsequent to January
1, 1883, has been paid, and no means exist for their payment, unless the respondents can be
required to levy and collect a tax provided for in the act of 1873.
Practically the same question was presented to and decided by this court in the action of
State v. Board of Comrs. of Lincoln Co., 23 Nev. 262. Counsel for respondent seeks, in his
brief, to distinguish that case from the case at bar, claiming that the presentation of the
coupons under the act of 1877 created a new contract as to the coupons alone.
We fail to note the distinction made. By section 8 of the act of 1873, it is provided that, in
addition to the ordinary taxes for county purposes, there shall be for the year 1873, and
annually thereafter until the principal and interest of said bonds shall be fully provided for,
levied and collected a special tax, to be called the interest tax, of forty-five cents on each
$100 of taxable property of the county. The fund derived from this tax shall be applied only
to the payment of the interest accruing upon said bonds, provided that, should said funds
furnish a surplus over and above what may be required for the payment of said interest,
such surplus shall be turned over and paid into the sinking fund provided for by section 10
of the same act.
should said funds furnish a surplus over and above what may be required for the payment of
said interest, such surplus shall be turned over and paid into the sinking fund provided for by
section 10 of the same act.
Section 10 created a sinking fund, into which should be paid any and all surplus of the
interest fund aforesaid, and required that each of the payments should be continued until the
sinking fund should be sufficient for the payment of the principal and interest of the bonds. It
will therefore be observed that the act authorizing the issuance of the bonds provides a special
fund to which the holder could look only for the payment of the interest and principal; that
there is no other fund provided for by law out of which payment of these bonds, or any
interest thereon, can be made.
In the language of the court in State v. Board of Comrs. of Lincoln Co., above cited: As
long as the tax was being levied and collected, there was no occasion for him to bring an
action, and, if he had, it seems very probable it could not have been maintained, had the
proper defense been made. But when the money was collected he would be entitled to it.
Then his cause of action would be fully ripe, and if not prosecuted within the statutory period
would doubtless be barred. If not levied or collected, his remedy would be the one he is now
pursuing to compel the officers to do their duty in the premises.
The board of county commissioners having failed and refused to provide the fund from
which the interest and principal of these bonds could be paid, and to which the holder could
look alone for payment, the statute of limitations cannot be successfully interposed.
It is a general rule that, when payment is provided for out of a particular fund, or in a
particular way, the debtor cannot plead the statute of limitations without showing that the
particular fund has been provided, or the method pursued. (Sawyer v. Colgan, 102 Cal. 283,
36 Pac. 580; State v. Board of Comrs. of Lincoln Co., 23 Nev. 262.)
The writ will therefore issue.
____________
25 Nev. 131, 131 (1899) State v. Sadler
[No. 1555.]
THE STATE OF NEVADA, ex rel. WILLIAM McMILLAN, Relator, v.
REINHOLD SADLER, Respondent.
Quo WarrantoJurisdictionAttorney-GeneralContested Election for State Office. Where the
attorney-general refuses to bring an action under the provisions of section 3342, General Statutes,
authorizing such officer to proceed against any person he has reason to believe unlawfully holds a public
office, a person claiming election to a state office may, by leave of court, bring quo warranto on his own
relation, where he has no other remedy.
IdemElection Contest. Quo warranto is the only remedy a person, who may be duly elected to a state office,
has to oust one unlawfully holding the same, and have himself instituted.
ElectionsInspectors and ClerksPolitical Affiliation ofDirectory Provision of Statute. The provision of the
statute providing that inspectors and clerks of election shall not be appointed from the same political
party is directory, and non-compliance therewith, in the absence of fraud, is not sufficient ground for
rejecting the vote of a county or precinct.
IdemMandatory Provisions of Statute. It is only those provisions of the election law relating to the time and
place of holding elections, the qualifications of voters, and such others as are made essential prerequisites
to the validity of an election that are mandatory.
IdemMisconduct of Officers and Other Persons. When a candidate for an office does not participate in, or
have knowledge of, criminal violations of election statutes at a precinct, and when such acts do not make
or lose votes for any candidate for such office, or destroy the secrecy of the ballot, or cast uncertainty on
the result of the election, and no elector voting at such precinct participates in such acts, or is prevented
from voting or properly marking his ballot, and no disqualified person is allowed to vote, the votes cast at
such precinct for such office are valid.
IdemSoldiers' Vote. The act of congress enabling the people of Nevada Territory to submit a constitution to a
vote, and providing for taking the vote of electors in the United States army within or beyond the
territory, does not apply to elections held by the state since the adoption of its constitution, and there
being no act of the legislature authorizing the taking of such a vote, a vote so taken cannot be considered.
IdemCouncilmen of City of Reno, How Elected. Section 3 of the act incorporating the city of Reno (Stats.
1897, p. 50) provides that its councilmen shall be chosen by the electors thereof, but requires them to
be residents of different wards. Section 5 provides that there shall be elected one councilman in each
ward, who shall be a resident therein: Held, that each councilman must be chosen by the electors of his
ward only.
IdemBallotsNames Not Authorized. A ballot containing the names of candidates for offices which do not
belong on it, in the absence of fraud, is not invalid as to candidates for another and different kind of office.
(Sweeney v. Hjul, 23 Nev. 409, overruled upon this point.)
IdemConstitutional LawState SenatorState and Federal Office. Under art. IV, sec. 9 of the state
constitution, which provides that no person holding a lucrative office under the federal government shall be
eligible to any civil office of profit in the state, a state senator, by accepting appointment as paymaster in
the army, became incapable of legally holding the office of state senator, and that such acceptance operated
as a resignation of the state office and created a vacancy therein.
IdemState SenatorVacancyProclamation of Governor. Where a vacancy occurs in the office of state
senator by reason of the appointment of such officer to a federal position, no proclamation of the governor,
as provided for under General Statutes, sec. 1668, is necessary to enable the people to legally fill said
vacancy, where no session of the legislature is to take place between the date of the occurrence of said
vacancy and the next general election.
IdemRegistrationDisability of AgentActs of Other Person Illegal. Section 1501 of the General Statutes
provides for a registration officer, and section 1519 provides for the filling of a vacancy in said office
caused by his death or resignation. No provision is made for registration in case of any other disability:
Held, that registration by one acting for him while sick is without authority.
IdemIdemIdem. An elector whose name appears on a check list and copy of an official register furnished
the election officers by the regular registry agent is entitled to vote, under registry act, sec. 14 (Gen. Stats.
1514), which provides that, prima facie, one has such right when his name so appears, although he was
registered by one illegally acting for the registry agent.
IdemInspectorsMinisterial Officers. The inspectors of election are only ministerial officers and have no
right to refuse to receive the vote of a person whose name appears upon the check list and official register
furnished them by the regular registry agent, except upon failure of the person applying to prove his
identity as the person who was registered.
IdemRegistrationElection PrecinctsTransfers. Under section 10 of the registry act, providing that a voter
registered in one district and moving to another may procure a certificate of his registration and be
registered in such other district, a voter, registered in a county where election precincts are not properly
established and bounded, may take such certificate and be registered and vote at any other polling place in
the county.
IdemBallotsPurity of Elections LawDistinguishing Marks. In all cases where the elector had attempted
to make the cross and had actually made the so so-called letters Y, T, V, or the same inverted, or
where the same resemble the figure 4, or a double cross, where it is apparent the voter attempted to
retrace the lines, or crosses, made with curved or irregular lines, evidently the result of nervousness or
infirmity, or the roughness of the boards upon which it was marked, also where the ballot
contains marks evidently the result of accident, or written words evidently placed
thereon by the election officers after the ballot had been cast; also slight attempts at
erasure, also crosses made with a slight hook, and other defects of a similar nature,
such ballots will be counted.
boards upon which it was marked, also where the ballot contains marks evidently the result of accident, or
written words evidently placed thereon by the election officers after the ballot had been cast; also slight
attempts at erasure, also crosses made with a slight hook, and other defects of a similar nature, such ballots
will be counted.
IdemIdemIdemIdem. The following were held to be distinguishing marks requiring the rejection of the
ballot: With horizontal lines thereon; marked with capital W and horizontal line; with vertical line;
circular loop; crosses erased or scratched out with pencil; erasures destroying texture of paper; containing
unauthorized written words apparently placed thereon before the ballot was cast; crosses on various parts
of ballot not after the name of a candidate; with letter D in official heading scratched over deliberately
with lead pencil; marks resembling stars and spiders; with the figure 1 after the cross; printed words or
names scratched over with pencil; two crosses after name of candidate, crosses enclosed with letter O;
perpendicular lines instead of crosses; with letter S and vertical line drawn through same; crosses placed
at left of name voted for; equation marks between printed name and party designation; two vertical lines
instead of cross; with letter N and horizontal line across same; with ordinary business check mark; other
marks impossible to describe.
IdemIdemIdemIdemTwo Candidates for Same Office Voted For. Ballots where the voter voted for
more candidates for the same office than were to be elected are not void, but such ballot will not be
counted for such office.
IdemIdemIdemIdemInk or Colored Pencil. Ballots marked with a blue or purple pencil, or with ink,
held void.
IdemIdemIdemIdemCross or Line Between Names of Candidates. Ballots with crosses directly on the
line between the names of the contesting candidates, in such a position as to prevent the court from
determining for what candidate the same were intended to be cast, are not void, but will not be counted for
the office in question.
IdemIdemIdemIdemCrosses Not in Squares. Ballots having crosses not in the square prepared thereon
in printing, but after and to the right of the names of the candidates voted for, are valid.
IdemIdemIdemIdemNumber of Ballot Not Detached. Ballots were cast having attached the strip on
the right-hand side containing the number: Held, that the ballots should be counted.
IdemIdemIdemResignation of Candidate. The resignation of M., who was a candidate for member of the
assembly, was filed with clerk and by him accepted after the name had been printed on the official ballots.
The clerk not being able to get sufficient ballot paper from the secretary of state to reprint the full allotment
of ballots for his county, drew red lines through M.'s name on said ballots, and distributed them, together
with the new ballots printed without his name, to election officers at the various precincts. In a precinct
where there were sufficient new ballots for all persons who voted, several red line ballots were cast: Held,
that the red line ballots were void.
IdemIdemIdemIdemUniformity of Ballot. Under the election law which requires uniformity of ballots,
and does not provide in terms for the resignation of candidates and the substitution of others in their place,
no officer can lawfully make any change on the face of ballots whereby more than one kind are prepared
and used; nor can any change be made on them, in reference to the resignation and substitution, other than
writing or printing the name of the substituted candidate.
On Motion to Retax Costs.
Costs in Original Proceedings. There being no statute or rule of court requiring papers constituting the record in
original proceedings in the supreme court to be printed or typewritten, expense for having any such papers
printed cannot be taxed as costs under rule VI, subdivision 1, of the supreme court providing that where the
rule requires such printing the expense therefor may be charged as costs.
IdemTime for Objecting to Cost Bill. By the last clause of subdivision 3 of rule VI of the supreme court,
objections, to be available against costs claimed by a prevailing party, must be made within ten days after
the filing service of the cost bill.
IdemNecessary Expressage. Where it was necessary to send ballots by express, in order to produce them in
court in answer to process, expressage is properly taxed as costs.
On Motion to Reconsider Motion to Retax Costs.
CostsCost Bill Filed Prematurely. Rule VI, subdivision 2, of the supreme court provides that either party
desiring to recover as costs his expenses for printing or typewriting in any cause in this court shall file with
the clerk, before said cause is submitted, a verified cost bill; and subdivision 3 requires that, if either party
desires to object to the costs claimed by the other party, he shall file his objections with the clerk within ten
days after service on him of a copy of the cost bill: Held, that where a party did not object by the costs
claimed by the other party within ten days after the service on him of the cost bill, the judgment will not be
modified by striking out the items of cost, after they have entered into and become a part of the judgment,
simply because the cost bill was prematurely filed.
Original proceeding. Action by the State of Nevada, on the relation of William McMillan,
against Reinhold Sadler. Writ of quo warranto refused.
Trenmor Coffin, A. E. Cheney, M. A. Murphy, Samuel Platt, E. D. Vanderlieth and O. J.
Smith, for Relator:
I. The proceeding in quo warranto may be in the name of the state, without the
attorney-general, upon the relation of a private citizen, or upon the relation of one claiming
the office in question, upon leave of court. {State Const., art.
office in question, upon leave of court. (State Const., art. VI, sec. 4; State v. McCullough, 3
Nev. 202; O'Neale v. McClinton, 5 Nev. 329; State v. Ruhe, 52 Pac. Rep. 274; People v.
Regents, 49 Pac. Rep. (Col.) 286-88; Gen. Stats. 1780; High, Extr. Leg. Rem. 606; State v.
Brown, 5 R. I. 1, 6; Meacham on Pub. Off., secs. 483 and 484; Vroman v. Michie, 69 Mich.
42; State v. Frazier, 28 Neb. 438; State v. Boyd, 31 Nev. 690; State v. Lynn, 31 Neb. 772.)
Quo warranto lies to oust the incumbent of the office of governor upon the relation of the
rival claimant to the office and to try relator's right to the office and to put him into the office,
without the attorney-general joining in the proceeding. (State v. Boyd, 312 Neb. 690.)
II. Quo warranto is the proper proceeding. In this proceeding the qualifications of voters,
conduct of election officers, counting of ballots, canvass of returns, and all steps leading up to
the taking of the office may be inquired into. (High, Extr. Leg. Rem. sec. 638, and authorities
cited; McCrary, Elect. 468; Spell. Extr. Rel., sec. 1776, p. 1447; People v. Van Slyck, 4 Cow.
297; People v. Pease, 27 N. Y. 45; 84 Am. Dec. 242, and notes and authorities; State v.
Frazier, 28 Neb. 438; Am. & Eng. Ency. of Law, 2d ed., vol. 10, pp. 798-9, and notes and
authorities; vol. 19, 1st ed., 673, notes 3 and 4.) Ballots may be inspected and recounted.
(State v. Shay, 101 Ind. 36, 38; Jennet v. Owens, 63 Tex. 262, authorities on 270; De Berry v.
Nicholson, 102 N. C. 469; Hudson v. Solomon, 19 Kan. 177; State v. Meilike, 81 Wis. 574.)
The court may canvass the returns and count the ballots, if they have not been counted or
canvassed. (Dean v. State, 88 Tex. 291.)
III. Statutes providing for an election contest are no bar to proceedings in quo warranto,
but afford a concurrent and cumulative remedy. (McCrary, Elect. 360; People v. Holden, 28
Cal. 123; Greely v. Holland, 14 Nev. 320; State v. Adams, 65 Ind. 396-7; State v. Shay, 101
Ind. 36, 38; State v. Fransham, 19 Mont. 273, 279, et seq., and authorities cited; State v.
Frazier, 28 Neb. 438, 456-7; Spell. Extr. Rel. 1776; High, Extr. Leg. Rem. 624; People v.
Londoner, 13 Colo. 303; Snowball v. People, 147 Ill. 260; State v. McKinnon, 8 Or. 493;
McAllen v. Rhodes, 65 Tex. 348; People v. Hall, 80 N. Y. 117; Tarbox v. Sughrue, 36 Kan.
225; State v. Kempf, 69 Wis. 470; State v. Meilike, S1 Wis. 574; Park v. State, 100 Ala.
647-S; State v. Elliott, 23 South.
Tarbox v. Sughrue, 36 Kan. 225; State v. Kempf, 69 Wis. 470; State v. Meilike, 81 Wis. 574;
Park v. State, 100 Ala. 647-8; State v. Elliott, 23 South. Rep. (Ala.) 124.)
IV. Upon quo warranto the court will determine the right of relator as well as that of the
respondent to the office, and, if the determination is in favor of the relator, will oust the
respondent and put the relator in possession of the office. (Gen. Stats. 3343-5; C. C. P. of Cal.
804-6; State v. Clarke, 3 Nev. 565, 572; People v. Banvard, 27 Cal. 470; People v. Fleming,
100 Cal. 537; Jennet v. Owens, 63 Tex. 262; McAllen v. Rhodes, 65 Tex. 348; Hudson v.
Solomon, 19 Kan. 177-8; Tarbox v. Sughrue, 36 Kan. 225; State v. Frazier, 28 Neb. 438;
State v. Boyd, 31 Neb. 690; State v. Lynn, 31 Neb. 772-4 Lindsay v. Attorney-General, 33
Miss. 508, 525; Newsome v. Cooke, 44 Miss. 352; Griebel v. State, 111 Ind. 272-3, and
authorities cited; State v. Wright, 10 Heisk (Tenn.) 238, 260-62; State v. McGeary, 69 Vt.
461, 468.)
V. The fact that all of the inspectors or clerks at a given precinct were of the same
political party with respondent is material to be considered in connection with other facts
alleged in the information, and more especially when in any precinct all of both inspectors
and clerks were of the same political party as respondent. (Sandens v. Lacks, 43 S. W. (Mo.)
653, 655; 142 Mo. 256, 264-5; Dial v. Hollandsworth, 39 W. Va. 1, 3, also dissenting
opinion and authorities cited, pp. 6 to 17.)
VI. The acts alleged in the information of intoxication and riotous conduct on the part of
the inspectors and electors of certain precincts, and acts in violation of the secrecy of the
ballot, constitute such malconduct within the meaning of the statute as should reject the entire
vote of those precincts. (McCrary, Elect. 207; Tebbe v. Smith, 108 Cal. 110-12;
Attorney-Genl. v. Stillson, 108 Mich. 419; Russell v. McDowell, 83 Cal. 70, 77; Ex Parte
Arnold, 128 Mo. 260-61; People v. Pease, 27 N. Y. 81; Am. & Eng. Ency. of Law, 2d ed.,
vol. 10, p. 585, note 4, pp. 698-9, and note 1.)
VII. The right of relator cannot be reached by respondent's demurrer. Respondent's
interest in the case ends with the determination of his right to the office. If the allegations of
the information are sufficient to oust respondent, he cannot complain at any determination
the court may make as to relator's rights.
cannot complain at any determination the court may make as to relator's rights. (Flynn v.
Abbott, 16 Cal. 365; People v. Fleming, 100 Cal. 541.)
VIII. There is no question involved here concerning the form of ballots, or manner of
voting. The allegations of the information, confessed by the demurrer, are that the members
of the cavalry troop voted according to law, which includes the Australian law and all other
laws in force. The question as argued by respondent's counsel was mainly the return and
canvass of the vote. Section 3, article II of the constitution vests an absolute right of suffrage
in such citizens as are enlisted in the military or naval service of the United States without
compliance with the registration laws. The last clause of this section contains a reference to
other provisions of the constitution upon this subject. These provisions are found in the
election ordinance in the latter part of the constitution. Section 3 of article II, together with
the election ordinance of the constitution, are self-executing. (Cooley, Const. Lim, pp. 99,
100.) Section XIV of the ordinance continued all of the provisions of the ordinance which
relate to the soldiers' vote in force until the legislature should substitute other provisions
concerning the taking and canvassing of this vote. A statute passed in 1866 (Stats. 1866, p.
210), concerning elections, made provision for the soldiers' vote. This statute doubtless
suspended and took the place of the election ordinance of the constitution. This act of 1866
provided that the soldiers' vote should be returned to the secretary of state and that the state
board of canvassers should meet at the office of the secretary of state and open and canvass
the votes. (Stats. 1866, pp. 215 to 217.) A later act concerning elections passed in 1873 (Stats.
1873, p. 197) apparently attempted to repeal the act of 1866 (repealing clause, 1873, p. 215)
without making any new provision concerning the soldiers' vote. The apparent attempt, even
if it was intended to be real, to repeal the entire act of 1866 cannot be held to have been
effectual, for the reason that the repealing clause of the act of 1873 (p. 215, sec. 95) fails to
properly or correctly refer to the act of 1866 attempted to be repealed. The title of the act of
1866 is not properly set out. The words election returns and canvassing the same are
omitted.
omitted. These words constitute a material portion of the title, and are peculiarly significant in
view of the question at bar. The omission of this portion of the title of the act of 1866 makes
the repealing clause of the act of 1873 inoperative. (State v. Hallock, 19 Nev. 384; Boring v.
State, 141 Ind. 640, 643; Feebleman v. State, 98 Ind. 520-21; State v. Wright, 14 Or. 365;
State v. Looker, 54 Kan. 229, Gunter v. Tex. Land Co., 82 Tex. 497; Harland v. Territory, 3
Wash. 150-57.)
IX. Where there is a constitutional right and no machinery provided to enforce it, the
constitution, by necessary implication, confers on the court of chancery jurisdiction to protect
and enforce the will of the people by suitable and proper procedure. (Gibson v. Board of Sup.,
80 Cal. 362 to 366; Calaveras Co. v. Brockway, 30 Cal. 326; Stalcup v. Tacoma, 13 Wash.
141, 145, 151; State v. Circuit Judge, 9 Ala. 338, 344; People v. Co. Comrs., 6 Colo. 209; In
re Moore, 4 Wy. 98, 112-13.)
X. Under the Australian ballot law, the clerk is required to publish all nominations
certified to him, and to print such nominations upon the ballots. No other ballots could be
used. A method is provided by which any errors in the proposed ballots could be corrected.
Nothing to the contrary appearing, it must be presumed that all names on the ballots were
properly certified to the clerk. (Australian Ballot Law, Stats. 1891, p. 40, secs. 9, 11, 12, 15;
Stats. 1893, p. 114, sec. 4.) After the ballots are thus prepared and printed they are not subject
to objection as to their form. Ballots will not be rejected by reason of names being wrongfully
placed thereon by the clerk. The voter must of necessity use the ballots prepared and
distributed by the clerk. In so doing the elector cannot be at fault. (Bowers v. Smith, 111 Mo.
45, 52, 56, 57, 64, 65; State v. Fransham, 19 Mont. 273; State v. Bernholz (Ia.), 76 N. W.
662, and authorities cited; Bragdon v. Navarre, 102 Mich. 259; Am. & Eng. Ency. of Law, 2d
ed., vol. 10, pp. 714, 722, and numerous authorities therein cited.)
XI. No person holding any lucrative office under the government of the United States, or
any foreign power, shall be eligible to any civil office of profit under this state; provided,
that postmasters whose compensation does not exceed five hundred dollars per annum,
or commissioners of deeds, shall not be deemed as holding a lucrative office."
vided, that postmasters whose compensation does not exceed five hundred dollars per annum,
or commissioners of deeds, shall not be deemed as holding a lucrative office. (Const. Nev.,
art. IV, sec. 9.) The words shall be ineligible to any office of profit have twice been
construed, and held by this court to mean both incapable of being legally chosen and
incapable of legally holding. (3 Nev. 570; 21 Nev. 338.) The appointment of Colonel F. C.
Lord to the office of paymaster in the army rendered him incapable of longer legally holding
the office of state senator. His appointment to that office created a vacancy in the office of
state senator from Storey county. (As to the rank and pay of paymaster, see Rev. Stats. of U.
S., secs. 1182, 1184, 1261, 1269 and 1271; salary, $2,500 per year.) (State v. Clarke, 3 Nev.
556, 570; State v. Clarke, 21 Nev. 333, 338; State v. Murry, 28 Wis. 98, 99; Carson v.
McPhetridge, 15 Ind. 327, 331; People v. Leonard, 73 Cal. 230, 233-4; Brady v. Howe, 50
Miss. 607, 626-7; McCrary, Elect. 4th ed., sec. 336, 340 and authorities cited; Shell v.
Cousins, 77 Va. 328; State v. Delwood, 33 La. Ann. 1229; State v. West, 33 La. Ann. 1261;
State v. Arata, 32 La. Ann. 193; 19 Am. & Eng. Ency., title Pub. Off., Resignation, p.
562; Acceptance of Incompatible Office, p. 562; Abandonment, 562c.)
XII. We are unable to find any law or decision in this state either requiring, authorizing, or
permitting the governor to issue an election proclamation prior to an election. The notice of
election in this state must be given by the boards of county commissioners. (Gen. Stats.
1527.) The presumption of law is that the board of county commissioners of Storey county
performed their official duty and regularly gave due and legal notice of the election of a state
senator to fill the unexpired term of Colonel Lord. Such is also the fact. No writ of election
was required in order to elect a senator to fill the unexpired term of Colonel Lord as senator
from Storey, for the reason that no session of the legislature was to take place in the interim
between his appointment as paymaster and the next ensuing general election. (Const. Nevada,
art. IV, sec. 12; Gen. Stats. 1668.)
XIII. Conceding that no official proclamation or notice or writ of any kind was in fact
given or issued concerning the election of a state senator from Storey to fill the unexpired
term of Colonel Lord, the election officers and electors of Storey county were in law
required to take notice of the vacancy, and were of right entitled to nominate and vote for
candidates for the vacant seat in the state senate, and such election was legal and valid.
the election of a state senator from Storey to fill the unexpired term of Colonel Lord, the
election officers and electors of Storey county were in law required to take notice of the
vacancy, and were of right entitled to nominate and vote for candidates for the vacant seat in
the state senate, and such election was legal and valid. (People v. Cowles, 13 N. Y. 350;
People v. Hartwell, 12 Mich. 508, 523; 86 Am. Dec. 70; Adsit v. Sec. of State, 84 Mich. 420,
and authorities cited; Berry v. McCullough, 94 Ky. 247, 252-3; Stearit v. McAdams, 99 Ky.
37, 40, 41; People v. Brenham, 3 Cal. 477, 491; State v. Burbridge, 24 Fla. 112; Jones v.
Gridley, 20 Kan. 584; State v. Skirving, 19 Neb. 497; State v. Lansing, 46 Neb. 515; Carson
v. McPhetridge, 15 Ind. 327, 331; LaFayette v. State, 69 Ind. 218; Brady v. Howe, 50 Miss.
626-7; Foster v. Scarff, 15 Ohio St. 536-7; Ex Parte Schilling (Tex.), 42 S. W. 553; Ex Parte
Williams, 35 Tex. Crim. App. 75; Am. & Eng. Ency. Law, 2d ed., vol. 10, 625 to 628, and
authorities cited: Dishon v. Smith, 10 Iowa, 212, 218; State v. Orvis, 20 Wis. 235; State v.
Lutfring, 22 Wis. 363; State v. Carroll, 17 R. I. 591, authorities cited on pp. 595-6; People v.
Hoges, 55 Cal. 612, 619.)
XIV. In addition to the cases above cited, the following are also applicable to the ballots
printed and cast in the city of Reno as alleged in respondent's answer. The city charter of
Reno does not, as alleged by respondent, provide that the five city councilmen shall be
elected by wards, but does provide that they be elected by the electors of the entire city.
(Incorporation Act, Stats. 1897, p. 50, secs. 3 and 5.) The principle of an officer limited to a
residence in a local district or county, but voted for by the electors of other districts or
counties, is not new; it has been applied to the district judges of this state. (Gen. Stats. 2487,
2492.)
XV. It is nowhere alleged or suggested in the answer that the electors of Storey county did
not believe and did not have reason to believe that there was a vacancy in the office of state
senator from that county; or that the electors of the city of Reno did not believe that their city
charter authorized each elector of the city to vote for five councilmen, one to reside in each of
the five wards. The phase of the case most favorable to respondent, which can upon any
hypothesis be maintained, is that it is a doubtful or debatable question whether or no
there was a vacancy in Storey county, or whether the electors of Reno should have each
voted for five councilmen or for only one.
maintained, is that it is a doubtful or debatable question whether or no [not] there was a
vacancy in Storey county, or whether the electors of Reno should have each voted for five
councilmen or for only one. We venture the assertion that no case can be found in which it is
so much as intimated that a rule or decision could be tolerated which would visit upon a
whole county, city or community, entire disfranchisement because the people had failed to
correctly solve a doubtful proposition of law.
XVI. Shall the people of Storey county be disfranchised because they expressed, through
their ballots, an honest opinion upon this doubtful and vexed question, adverse to a majority
of our state senators, although in accord with the opinion of a committee of congress and the
great majority of the decided cases? It will be suggested by respondent that this proceeding
affects the right to no other office than that of governor. The decree in this case will not
confirm in an office nor oust therefrom any other officer, but if this court in this case should
hold all of the ballots cast in Storey county to be illegal, it will open the way for any citizen of
Storey county to proceed against and oust from office every officer now exercising the
functions of a county office in the county. The same entanglements and official disorder
might result in Washoe county from holding the ballots cast in Reno illegal by reason of the
method adopted by the entire body of citizens in electing their city councilmen.
XVII. Whenever the interpretation of a statute or constitution in a certain way will result
in manifest injustice, or public inconvenience, courts will always scrutinize the statute or
constitution closely to see if it will not admit of some other interpretation. (State v.
Kruttschnitt, 4 Nev. 178; Arnold v. Stevenson, 2 Nev. 234, 242; Haydon v. Supervisors, 2
Nev. 371; Bowers v. Smith, 111 Mo. 56.)
XVIII. It seems well settled by a great number of authorities that a vote for an ineligible
person will not render the vote illegal, unless the voter had full knowledge of both the fact of
ineligibility and of its legal effect. (Am. & Eng. Ency. Law, 2d ed., vol. 10, pp. 758 to 760,
notes and authorities cited.)
XIX. Now, what difference in principle can there be between the electors of Storey
county voting unknowingly for an ineligible candidate to fill a vacant office, and their
voting, in good faith, for an eligible candidate to fill an office which they believe to be
vacant, although they may have been mistaken as to the vacancy?
between the electors of Storey county voting unknowingly for an ineligible candidate to fill a
vacant office, and their voting, in good faith, for an eligible candidate to fill an office which
they believe to be vacant, although they may have been mistaken as to the vacancy? In either
instance the voter is only at fault when it clearly appears that he marked his ballot for a
candidate or an office that he must have known could not lawfully be voted for by him, and
when with such knowledge the only inference to be drawn from his action in voting for such
person or office, is that he intended thereby to make a distinguishing or identifying mark
upon his ballot. (Sweeney v. Hjul, 23 Nev. 409, 419-20.) The same reasoning applies with
equal force to the city vote of Reno, where the electors of the city believed that their city
charter called upon each elector to vote for five councilmen, rather than for one councilman
residing in his own ward. The good faith of the electors, neither of Storey county nor of Reno,
is questioned, nor is there any allegation of any knowledge on their part that the manner of
their voting, nor the legality of their votes for the persons and officers for whom they were
voting was, or would be, or could be, questioned. The facts admitted by the demurrer are not
strong enough to outweigh the more important and controlling principle that the electors who
do not make up the ballot must rely with perfect assurance and safety upon the official ballots
given them, and that their ballots will be counted as marked, and that their legally expressed
will cannot be overthrown where they are not at fault, although it should turn out that they
were mistaken in their construction of a statute or a principle of law. (State v. Fransham, 19
Mont. 273, 285-90; see, also, to same effect, Bragdon v. Navarre, 102 Mich. 259; Dillon's
Mun. Cor., vol. 1, sec. 197, and authorities cited; Beach on Pub. Cor., vol. 1, sec. 149, and
authorities cited; Owens v. State, 64 Tex. 509.)
XX. A precinct, town, or city, or county will not be disfranchised by rejecting the entire
vote on account of irregularities resulting from the election officers, or the electors, acting in
good faith, having mistaken the law concerning the holding of, or voting at, an election.
(Stemper v. Higgins, 38 Minn. 222, 225-6; Bowers v. Smith, 111 Mo. 46, 54-56, 62-5;
Marion v. Territory, 1 Okl. 221; Stinson v. Sweeney, 17 Nev. 31S; Lynip v. Buckner, 22
Nev. 43S
62-5; Marion v. Territory, 1 Okl. 221; Stinson v. Sweeney, 17 Nev. 318; Lynip v. Buckner,
22 Nev. 438.)
XXI. Irregularities in conducting an election when free of fraud, which have not interfered
with a full and fair expression of the voter's choice, and which do not affect the result, are
unprejudicial irregularities, and will not render the election void. (Lee v. State, 49 Ala. 55;
Bourland v. Hildreth, 26 Cal. 162; Sprague v. Norway, 31 Cal. 173; Preston v. Culbertson,
58 Cal. 209; Russell v. McDowell, 83 Cal. 70; Atkinson v. Lorbeer, 111 Cal. 419; Kellog v.
Hickman, 12 Colo. 257; Hyatt v. People, 29 Ill. 54; Gas v. State, 34 Ind. 425; Mustard v.
Hoppes, 69 Ind. 334; Morris v. Van Laningham, 11 Kan. 269; People v. Avary, 102 Mich.
574; Bowers v. Smith, 111 Mo. 45; State v. Nicholson, 102 N. C. 465; Marion v. Territory, 1
Okl. 221; Hanna v. Sheppard (Tex.), 25 S. W. 137; State v. Horan, 85 Wis. 94; Prince v.
Skillon, 71 Maine, 361; Juker v. Commonwealth, 20 Penn. St. 493; Cooley's Const. Lim. 617,
618.)
XXII. Ignorance, inadvertence, mistake or even intentional wrong, on the part of local
officials, will not vitiate an election or disfranchise a district. To so hold would be unjust in
the extreme, and subversive of the fundamental principles of our government. (People v.
Cook, 14 Barb. (N. Y.) 259; Gilleleand v. Schuyler, 9 Kan. 569; Parvin v. Wimberg, 130 Ind.
568.)
XXIII. Statutory regulations regarding the appointment of inspectors, judges and clerks
are directory, and a nonobservance thereof will not render an election void. (Keller v.
Chapman, 34 Cal. 635; People v. Cook, 14 Barb. 259; McCabe v. Arcularins, N. Y. Cont.
Elec. Cases, 333; Hanna v. Sheppard (Tex.), 25 S. W. 137; Chapman v. State, 37 Tex. Crim.
176; State v. Stumpf, 21 Wis. 586; Sanders v. Lacks. 142 Mo. 261-2.)
XXIV. It is only those provisions relating to the time and place of holding elections, the
qualifications of voters, that the voting shall be by ballot, and such others as are expressly
made essential prerequisites to the election's validity, that are held of substance and
mandatory. Those touching the recording and return of the legal votes received, and the mode
and manner of conducting the details of the election, are directory, and a failure to observe
them caused by negligence, honest ignorance or mistake, and not resulting in manifest
fraud, does not vitiate the election.
tion, are directory, and a failure to observe them caused by negligence, honest ignorance or
mistake, and not resulting in manifest fraud, does not vitiate the election. (People v.
Schirmerhorn, 19 Barb. 540; People v. Wilson, 62 N. Y. 193; Dickinson v. Fried (Colo.), 55
Pac. 814; Russell v. McDowell, 83 Cal. 77; Fowler v. State, 68 Tex. 35; Mustard v. Hoppes,
69 Ind. 334; Atkinson v. Lorbeer, 111 Cal. 422; Young v. Simpson, 21 Colo. 460.)
XXV. The object of the registration law was to prevent unregistered voters from voting,
and not to make the right to vote depend upon the observance of all the minute directions of
the act as to the preparation of the agency, and thus make the constitutional right of suffrage
liable to be defeated, without the fault of the electors by reason of the fraud, caprice or
negligence of the inspectors. (People v. Wilson, 62 N. Y. 186; Am. & Eng. Ency. Law, p.
618, and authorities cited; State v. Kromer, 38 Wis. 88, 89; McCrary, Elect., 2d ed., p. 69,
sec. 105; 45 La. Ann. 333, 340; 69 Hun. N. Y. 596; State v. Weed, 60 Conn. 18; Sprague v.
Norway, 31 Cal. 113, affirmed in Keller v. Chapman, 34 Cal. 640; Stinson v. Sweeney, 17
Nev. 318-320.)
XXVI. The language of section 3 of the Reno incorporation act (Stats. 1897, p. 50)a
city council to consist of five members who shall be actual residents * * * in the city, and
who shall be chosen, by the qualified electors thereof means that they shall be chosen by all
of the electors thereof. It does not mean by the electors of respective wards. (State v.
Wrightson, 56 N. J. Law, 126, 177, 192, 199; State v. Constantine, 42 Ohio St. 437; 51 Am.
Rep. 833, 836-7.) An examination of other city incorporation acts will show that where the
legislature has intended that a vote should be by wards, it has been so provided in no doubtful
language.
XXVII. Passing now from the question of the regularity of the Reno ballots, and admitting
for the purpose of the argument that it is doubtful and uncertain whether the Reno ballot was
properly printed, the question arises, was the voter charged with any knowledge of that
irregularity, and was he at fault in voting it, as prepared, to such an extent as justifies the
disfranchisement of all the voters of the city of Reno?
of Reno? The principles governing the decision of this question are alike applicable to the
tickets in Reno and Storey county, with the possible difference that it may be claimed that the
Reno ballot did impart some notice, which could not be urged for the Storey ballot. We
believe the principles governing this question are already established in this state, and that,
unless a new rule of decision is to be now adopted, there is no uncertainty as to the validity of
all these ballots, and an examination of somewhat extended excerpts from the decisions of
this court is invited. We insist that the decisions of this court support these propositions:
First, that the wrongful putting of the name of a candidate on the ticket by those charged with
the duty of impairing, does not impair the vote. Second, that the fault that invalidates the
ticket must be one with which the elector had knowledge or notice. Third, that the statutes are
to be liberally construed to preserve, and not to destroy the franchise, especially where it is
not alleged that any fraud was attempted, or any vote cast by an unauthorized person. Fourth,
no elector shall lose his ballot upon any doubtful construction of the law. Fifth, that neither
justice, the preservation of secrecy of the ballot, nor any legislative enactment, imposes the
burden on the elector of determining, at his peril, whether the ticket prepared and presented to
him by the officers of the law, and regular upon its face, is, in fact, a full compliance with the
legal requirements. Sixth, an elector cannot be deprived of his constitutional right of suffrage
without his fault or neglect, and any law or regulation, which, in its operation, accomplishes
that result, is unconstitutional. (Stinson v. Sweeney, 17 Nev. 315.)
XXVIII. Although this case was decided before the adoption of the Australian ballot law, the
main principles thus adopted as the rule of decision this state are as pertinent now as then,
namely, that the constitutional right of a qualified voter to have his vote counted as cast
cannot be taken from him by any legislature, regulation or official dereliction or
misinterpretation of the law, unless the voter is guilty himself of fault or neglect. (Lynip v.
Buckner, 22 Nev. 426; Dennis v. Caughlin, 22 Nev. 447; Sweeney v. Hjul, 23 Nev. 409;
Lindstrom v. Bd. Canvassers, 94 Mich. 467; Bragdon v. Navarre, 102 Mich.
Navarre, 102 Mich. 259; Bowers v. Smith, 111 Mo. 45; Parvin v. Wimberg, 130 Ind. 561.)
XXIX. Conceding that the names of Conboie and Davis were illegally upon the ballots in
Storey county, and that they were improperly certified by the clerk as nominees, but were in
good faith voted for by the electors of Storey county, that fact cannot deprive voters of their
franchise or destroy the efficacy of their ballots cast for other candidates, who were properly
nominated and certified. (Smith v. Harris, 18 Colo. 274, 278; Allen v. Glynn, 17 Colo. 338;
Schuler v. Hogan, 168 Ill. 369, 377; People v. Clute, 50 N. Y. 466; Barnum v. Gilman, 27
Minn. 473; Gill v. Mayor Pawtucket, 18 R. I. 281.)
XXX. Upon the oral argument much was said concerning the consequences of holding the
Storey county ballots illegal. It was urged by counsel for respondent that all consequences
should be ignored in a decision by this court upon a question of law. One pointed and forcible
illustration of this principle, furnished by the records of this supreme court and of the
secretary of state's office, was, however, overlooked. In this state, at the general election in
1896, the secretary of state certified to the various county clerks the nomination of C. H. E.
Hardin as a candidate for lieutenant-governor on the silver party and democratic tickets; J. B.
Moore for the same office on the republican ticket and George Cummings upon the people's
party ticket. Mr. Hardin received 6,237 votes, Mr. Moore received 2,411 votes, and Mr.
Cummings received 1,076 votes, aggregating 9,724 votes. The total vote cast in the state at
that election seems to have been 10,237, leaving only 513 electors who did not vote for a
candidate for lieutenant-governor. It is most probable that those electors who voted for a
candidate for lieutenant-governor did so in good faith, believing there was a vacancy in that
office. However, their belief was a false one. They were mistaken for this court afterward
decided that there was in fact no vacancy in that office. (State v. Sadler, 23 Nev. 356.) We
know of no principle of law which would authorize this court to reject a ballot that should not
have been rejected by the inspectors of election at the original count at the closing of the
polls. If the Storey county votes should now be rejected by this court, they should also
have been rejected by the inspectors at their original count, and their returns to the
county commissioners made accordingly.
votes should now be rejected by this court, they should also have been rejected by the
inspectors at their original count, and their returns to the county commissioners made
accordingly. Likewise the ballots in 1896 containing a cross after the name of the candidates
for lieutenant-governor should have been rejected by the inspectors of election at their
original count, leaving only 513 legal votes in the state. The result would have been, either
that 513 votes would have controlled the entire election, or that, under the principle laid down
in 15 Ohio St. 536-7, and other authorities cited, there would have been no election, leaving
all state, county, township and other offices to hold over, except members of the legislature,
all of whose terms of office save a few hold-over senators, expired unconditionally on the day
of election in November, 1896. There would have been no assembly and but half a senate. A
vacancy in the office of United States senator and a want of means to carry on the state
government might have resulted. These, however, were simply consequences, which counsel
for respondent, if they remained true to their position taken in this case, would urge should be
ignored.
XXXI. Another similar case might arise where to follow a too close and technical
construction of the law, or to follow the theory and argument of counsel to their logical
conclusions, would lead to great injustice or great public inconvenience. (State v.
Kruttschnitt, 4 Nev. 178; Arnold v. Stevenson, 2 Nev. 234, 242; Haydon v. Supervisors, 2
Nev. 371; Bowers v. Smith, 11 Mo. 45, 56; Lynip v. Buckner, 22 Nev. 438, 440, 442; Parvin
v. Wimberg, 130 Ind. 561; Lindstrom v. Board, 94 Mich. 467.)
XXXII. It may well be said that electors are presumed to know the law, but are not and
cannot be presumed to know of its violations, nor of irregularities or mistakes, intentional or
otherwise, committed by public officers in carrying out its provisions. On the contrary, they
are entitled to presume that the officers have done their duty, and have correctly construed
and followed the law. Courts will not disfranchise voters unless it is shown that they were
charged with knowledge and fault. Notice goes with punishment and knowledge is essential
to crime. (Allen v. Glynn, 17 Colo.
Colo. 338; State v. Elliott, 17 Wash. 18; State v. Fransham, 19 Mont. 288-9; Schuyler v.
Hogan, 168 Ill. 381-2; Cook v. Fisher, 100 Iowa, 35; Am. & Eng. Ency. Law, 2d ed., vol. 10,
pp. 714, 722, and authorities cited.)
XXXIII. The vacancy mentioned in section 12, art. IV of the constitution and in section
1671, Gen Stats., is not a vacancy (which) shall occur in the office of member of the senate
or assembly by death, resignation or otherwise, when a session of the legislature is (not) to
take place before the next general election. (Gen. Stats. 1668.) In the interim of the sessions
of the legislature, the terms used, we believe, by all constitutions, statutes and decisions, are
senator and member of the assembly, office of senator or member of the assembly, and
vacancy in the office of senator or member of the assembly, or their equivalents. (Const. of
Nevada, art. IV, secs. 3, 4, 5, 8, 11; Gen. Stats. 1668, 1669, 1670, 1674.) Upon the technical
theory urged by respondent there was no way for the governor to have had official
information of the vacancy of the term of office of Colonel Lord. There was no way for the
president of the senate to have such official information or to certify it to the governor, unless
it occurred during a session of the legislature. The same would be true if Colonel Lord would
have died in July, 1898, instead of being appointed paymaster in the army. Such an iron-clad
and narrow construction will be found to begin at nothing and to end at nowhere.
relator's points and authorities on motion to strike out
and retax costs.
I. A party in whose favor judgment is rendered and who claims his costs must, within two
days after the verdict or decision of the court, deliver to the clerk of the court a memorandum
of his costs and necessary disbursements in the action or proceeding, properly verified. (Gen
Stats. 3508.) In this case the decision of the court and the judgment in favor of relator were
rendered and entered on September 20, 1899. No such memorandum of costs and
disbursements has been filed since the rendering and entering of said decision and judgment.
II. A memorandum of costs and disbursements must be filed within the time and in the
manner required by law.
filed within the time and in the manner required by law. A failure on the part of the prevailing
party to file such memorandum constitutes a waiver of costs and disbursements. Howard v.
Richards, 2 Nev. 128; Lapham v. Osborne, 20 Nev. 168, 177; 90 Am. Dec. 520; Chapin v.
Broder, 16 Cal. 403, 418, 419; O'Neil v. Donahue, 57 Cal. 231; Mullally v. Benevolent
Society, 69 Cal. 559; Riddell v. Harrell, 71 Cal. 254, 260-61; Dow v. Ross, 90 Cal. 562,
Hotchkiss v. Smith, 108 Cal. 285, 286-7; Cantwell v. McPherson, 2 Idaho, 1045, 1047.) Costs
are not recoverable at common law. (McDonald v. Evans, 3 Or. 445; Wood v. Fitzgerald, 3
Or. 583-4; Ency. Pl. & Pr. Costs, vol. 5, p. 110, and authorities cited; Orr v. Haskell, 2
Mont. 353-4.)
III. The right to recover costs is a statutory right, and the statute giving the right must be
strictly followed or costs cannot be recovered. Costs can only be recovered by a strict
compliance with the practice act. (Orr v. Haskell, 2 Mont. 350, 354.) Statutes allowing costs
are strictly construed. (Jackson v. Siglin, 10 Or. 93; Dwarris on Statutes, 253.)
IV. In this case a so-called cost bill was filed with the clerk on July 25, 1899, nearly two
months before the decision and judgment. This filing of a cost bill was premature and can be
of no more effect than if filed two months after the decision and judgment. (Sellick v.
DeCarlow, 95 Cal. 645-5; Nellis v. DeForrest, 6 How. Pr. (N. Y.) 413.)
V. The filing of a paper, notice or motion prior to the time fixed by law for its filing or the
taking of any step, or the doing of anything in the practice prematurely, is as ineffectual as if
done after the expiration of the time prescribed or allowed. (Henry v. Superior Court, 93 Cal.
569.)
VI. The right to costs does not attach or become vested until final judgment has been
pronounced, and only then when they are claimed and taxed in the manner prescribed by law.
(Ency. Pl. & Pr., vol. 5, p. 121, and authorities there and hereinbefore cited.)
VII. It may be contended that the cost bill filed herein on July 25, 1899, was effectual to
allow respondent his costs under rule VI of this court. However, an examination of that rule
discloses that it was never intended that it should have any such effect.
have any such effect. That rule appears upon its face to apply only to the cost of printing and
typewriting, in cases where the transcript or record is required by the rules of this court to be
printed or typewritten, and we are unable to find any rule requiring the record in an original
proceeding in this court to be printed or typewritten. It is therefore plain that rule VI of this
court was only intended to apply to transcripts in cases on appeal.
VIII. A simple inspection of rule VI will disclose that it was never intended to apply to
any other items of costs or disbursements, than expenses for printing or typewriting. Rule
VI in terms provides all other costs to be taxed by the clerk in accordance with the fee bill.
The term fee bill must be understood to mean and include the statutes fixing the fees
taxable, and the mode and manner of taxing them. (Anderson's Dictionary of Law, p. 453;
Black's Law Dictionary, p. 481.)
IX. There seems to be no time fixed by any rule of this court, or by any statute, within
which a motion to retax costs shall be made in an original proceeding in this court or
concerning any costs in any case except as to the expenses of printing or typewriting, to be
included in a cost bill before final submission of an appellate case. When there is no time
specified when an act is to be done, it will be presumed in law that it is to be done within a
reasonable time. (Richardson v. Jones, 1 Nev. 405, 409.)
Thomas Wren, William Woodburn, J. R. Judge, R. M. Clarke, E. L. Sadler, and A. J.
McGowan, for Respondent:
I. The election ordinance was passed by the constitutional convention with the enabling
act of congress requiring the convention to provide by ordinance for submitting the
constitution to the people. It was never intended to be and is not a part of the constitution.
(Election Ordinance, sec. 228.) In section 6 of the ordinance the following language occurs:
The governor * * * shall certify the same to the president, * * * together with a copy of the
constitution and ordinance. This view is strengthened by the fact that section 3 of article II of
the constitution provides that persons in the military or naval service of the United States
may vote.
the United States may vote. By reference to section 230 of the ordinance it will be seen that
the language used in the ordinance in reference to the right of the soldiers to vote and the
language used in section 3 of the constitution is substantially different and inconsistent. The
ordinance not only confers the right to vote on soldiers both within and beyond the
boundaries of the state, but it also provides in the main how they are to vote and how the
returns of their vote is to be made. Section 3 of article II of the constitution simply provides
that the soldiers and sailors, like all other citizens, shall have the right to vote and exempts
them from the payment of a poll tax and registration as prerequisite to the exercise of that
right omitting the words within or beyond the boundaries of the state. That section and
section 6 of the same article of the constitution empower the legislature to prescribe where all
citizens shall vote, soldiers and sailors included, by whom their vote shall be received, and
the manner in which the return of their vote shall be made, and to provide safeguards
generally for the purity of elections. It is not to be presumed that the constitutional convention
would have adopted two sections of the constitution so radically different intending that both
should be permanent. But if it was the intention by section 12 of the ordinance (Gen. Stats.
240) to continue the provision of the ordinance in force after the election of state and county
officers under the constitution, its provisions are so incongruous that, when the state was
admitted into the Union and the state officers had been installed in offices, it became
impossible in holding elections to follow it. Section 5 of the ordinance (Gen. Stats. 233)
provides that an abstract of the votes for state officers, supreme and district judges,
representatives in congress and three presidential electors shall be transmitted to the governor
of said territory. Section 6 of the ordinance (Gen. Stats. 234) provides that the board of
canvassers, to consist of the governor, United States district attorney, and chief justice of said
territory, shall canvass the returns. Counsel upon both sides to some extent have fallen into
the error in discussing this phrase of assuming that the words governor and United States
district attorney were not qualified by the phrase of said territory. Manifestly, the latter
phrase qualifies the title of all three of the officers above named. Section 6 of the
ordinance also provides that the said governor shall immediately publish an abstract of
the same, etc., and that the said board of canvassers shall issue certificate of election,
etc.
festly, the latter phrase qualifies the title of all three of the officers above named. Section 6 of
the ordinance also provides that the said governor shall immediately publish an abstract of the
same, etc., and that the said board of canvassers shall issue certificate of election, etc. Section
7 of the ordinance (Gen. Stats. 235) provides that the adjutant-general of said territory shall
make out a list and deliver the same to the governor of all of the electors in the army of the
United States, etc. The governor shall classify and make therefrom separate lists of the
electors and transmit the same to the commanding officer, etc. Section 9 of the ordinance
provides for taking the vote, etc. Section 11 of the ordinance provides that the ballots and
voting list shall be sent forthwith to the governor of said territory, and that the returns shall be
transmitted to the governor, etc.
II. It became utterly impossible to comply with these provisions of the election ordinance
after the state was organized and the territory with its officers ceased to exist except for the
limited time provided for in section 214, General Statutes. (Section 14, article XVII of the
schedule to the constitution.) Section 14 of the ordinance was limited in its operation by the
terms used. It was to be in full force until the legislature should provide for the taking of the
votes of the soldiers. The legislature has ever since its first organization made provision for
taking the votes of all residents of this state entitled to the right of suffrage. Section 14 of the
ordinance does not provide that the ordinance shall remain in force until the legislature has
provided for taking the votes of the soldiers within or beyond the limits of the state. The
law of 1866 provides for the taking of the soldiers' vote beyond the boundaries of the state,
but that law was repealed by the legislature in 1873. The mere fact that a few words of the
title were omitted in the repealing clause of the law, especially in view of the fact that the date
of the approval of the act of 1866 is given in connection with the title in the repealing clause
of the act, does not invalidate the repeal. Under the provisions of the act of 1873, the soldiers
and sailors in the military and naval service of the United States are not deprived of their right
to vote, if stationed within this state; if without the state or the county in which they reside,
they simply occupy precisely the same position under the statute that other citizens of the
state absent from the state or county in which they reside occupy.
reside, they simply occupy precisely the same position under the statute that other citizens of
the state absent from the state or county in which they reside occupy. (Stats. 1873, p. 197.)
III. No fraud or unfairness is stated to have occurred in consequence of the appointment of
the boards of election in the several precincts of Humboldt county from the same political
party. (Stinson v. Sweeney, 17 Nev. 309.)
IV. The board of inspectors are not authorized, nor is it made their duty to prevent bystanders
or electors from gathering in crowds or soliciting votes within one hundred feet of the polling
place, or immediately at the polling place or in the room where the election is held, or
immediately about the voting booths. The definition of the word immediately in the
connection in which it is used in the allegation is not very precise; it may be fairly defined as
close to. It is not very clear what the phrase polling place means; we suppose it would be
a fair definition to call the space enclosed by the guard rail the polling place. It is common for
the county commissioners to designate some house in a precinct as a polling place. The use of
the language so as to destroy the secrecy of the ballot is too indefinite. If the pleader had
alleged that the inspectors of election permitted parties, other than voters or officers invited
inside the guard rail to preserve the peace, to enter inside the rail and around the booths, and
to invade the booths, and that the voters were thereby prevented from preparing their ballots
in secret, the allegation might have possibly been sufficient, but not so in its present form.
V. The election law contemplates that voters may gather around the polling place and
inside the room where the election is being held, and that the booths shall be so placed that
persons just outside of the guard rail shall have the booths in full view to prevent fraud.
(Stats. 1891, sec. 18, p. 42.) The sections of the constitution empowering the legislature to
regulate the exercise of the elective franchise are certainly of equal force and dignity with the
section of the constitution regulating the right of suffrage. The sections must be construed
together.
VI. Appointment of Election Officers: It is no cause of action or ground for throwing out
the entire vote of Kennedy and White River precincts that inspectors of election were not
appointed from the two political parties polling the largest number of votes at the last
general election.
action or ground for throwing out the entire vote of Kennedy and White River precincts that
inspectors of election were not appointed from the two political parties polling the largest
number of votes at the last general election. Neither is it a cause of action or ground for
throwing out the entire vote of the above-named precincts that clerks of election were all
appointed from the silver party. (Sanders v. Lacks, 142 Mo. 255; Paine on Elections, sec.
397.)
VII. The statute of the State of Nevada in question here provides no penalty for failure to
comply with the requirements in regard to the appointment of inspectors and clerks of
election from two political parties and does not declare that such failure avoids the election.
(Stats. 1891, p. 44, sec. 17.)
VIII. There is no showing in the complaint that any other or different political party than
the silver party existed in either of the counties where the above alleged malconduct of the
boards of county commissioners is alleged to have occurred. Moreover, the provisions of
election laws in this respect are directory merely (Gen. Stats. 1525; Stats. 1891, p. 44, sec.
17), and, no fraud being alleged, it is no ground for throwing out the vote of an entire
precinct. Where no fraud is charged the provisions of election laws are merely directory and
not mandatory. (6 Am. & Eng. Ency. Law, p. 302 and cases cited; 6 Am. & Eng. Ency. of
Law, p. 325, and cases cited; Packwood v. Brownell, 121 Cal. 478; Jennings v. Brown, 114
Cal. 307.)
IX. It is only those provisions of election laws relating to the time and place of holding
elections, the qualification of voters and such others as are made essential prerequisites to the
validity of elections, that are mandatory; all other are directory merely and an honest or
mistaken disregard of them, not resulting in manifest fraud, will not reject the entire vote of a
precinct. (Russell v. McDowell, 83 Cal. 70.)
X. Malconduct of Election Officers: It is no cause of action that electors congregated in
and about the polling place; that they engaged in partisan discussions concerning the merits of
the different candidates; that the election officers participated in the same; or that the election
officers gave to and received from each other and drank spirituous, malt and intoxicating
liquors, there being no allegation or showing in the complaint that any fraud was
committed or that the result of the election was in any way changed or altered.
malt and intoxicating liquors, there being no allegation or showing in the complaint that any
fraud was committed or that the result of the election was in any way changed or altered.
(Stinson v. Sweeney, 17 Nev. 309; People v. Wilson, 62 N. Y. 193; Packwood v. Brownell,
121 Cal. 478; Sprague v. Norway, 31 Cal. 173; Dobyns v. Weaden, 50 Ind. 298; Whipley v.
McCune, 12 Cal. 352; Preston v. Culbertson, 58 Cal. 198; Paine on Elections, 418; Brightly
on Election Cases, 423; Atkinson v. Lorbeer, 111 Cal. 419; 6 Am. & Eng. Ency. of Law, pp.
302, 325, 359, 364; McCrary on Elections, sec. 430, 329; Trigg v. Preston, 1 Cong. Elec.
Cases, 78; Bruce v. Loan, 2 Cong. Elec. Cases, 482; Richardson v. Rainey, 5 Cong. Elec.
Cases, 224; Harrison v. Davis, 2 Cong. Elec. Cases, 341; Bromburg v. Haralson, 4 Cong.
Elec. Cases, 336; Lee v. Richardson, 6 Cong. Elec. Cases, 520.)
XI. The proceeding is brought in the name of the State of Nevada upon the relation of
William McMillan. It is neither brought by the attorney-general as the prosecuting officer of
the state in this court, nor on the relation of such attorney-general, nor with his consent. On
the contrary, it is brought without the consent of the attorney-general.
XII. It is nowhere alleged as ground of contest: That the respondent had not the title to
the office of governor; or that the respondent was not and is not eligible to said office; or
that he is in any manner disqualified to hold the said office or execute the functions thereof;
or that he has in any manner forfeited his right or title to the same; or that the election
whereat he was chosen governor by the people was a fraudulent election. In short, none of
the grounds justifying the issuance of the ancient common law writ of quo warranto, or the
more recent and common law writ upon information in the nature of quo warranto, are
alleged, and only such grounds as appertain strictly to contested elections under the statute
authorizing a proceeding between individuals contesting an election are contained in the
statement. Indeed, many things contained in the statement are not such as under the
authorities constitute grounds for contesting an election. From the foregoing statement it is
plainly manifest that the proceeding is one in which the state is not a party and which is
brought, not for the purpose of ousting one who has usurped an office, but for the sole
purpose of contesting an election.
of ousting one who has usurped an office, but for the sole purpose of contesting an election.
In other words it is an election contest and not a proceeding quo warranto or in the nature
of quo warranto.
XIII. The statutes of Nevada provide three distinct and independent modes of proceeding
to determine the title to, and right to execute the functions of, a state office. First: An action
under the provisions of the civil practice act of the state for the usurpation of an office.
(Gen. Stats. 3342-3348.) Second: A proceeding upon information in the nature of quo
warranto. (Gen. Stats. 3711-3737.) Third: A proceeding to contest the right of any person
declared duly elected to any state office within this state. (Gen. Stats. 1560-1563,
1581-1583.) The proceeding under section 3345-3346 (the first above mentioned) is criminal
in its nature, and must be brought in the name of the state by the attorney-general of the state,
and upon his relation. It may be brought either in the supreme court or the district court of the
state, but cannot be brought by a private individual in his own name or upon his own relation.
(Gen. Stats. 3342-3348.) The proceeding under sections 3711-3737 are of a civil and not
criminal nature and may be brought by the district attorney of the proper county, and must be
brought in the district court, and cannot be brought in the supreme court. This last proceeding
may be upon the relation of a private individual (Gen. Stats. 3722), but must be prosecuted
by the district attorney. (Gen. Stats. 3712, 3713, 3715.) The proceeding under the statute
providing for an election contest may be brought by any qualified elector of the state who
desires to contest the election of any person declared duly elected to any state office (Gen.
Stats. 1581), and it is the duty of the attorney-general to prosecute such action in the name of
the people of the state, before the supreme court, who shall have original jurisdiction in such
cases. (Gen. Stats. 1581.)
XIV. The jurisdiction of the Supreme Court of the State of Nevada is fixed by the
constitution of the state and in the matter under consideration is limited to granting writs of
* * * quo warranto. (Const. Nev., art. IV, sec. 4.) The jurisdiction conferred upon the
supreme court by the constitution cannot be abolished or restricted or enlarged or
increased by the legislature.
stitution cannot be abolished or restricted or enlarged or increased by the legislature. (Spell.
Extr. Rel. 1770, 1771, 1773, 1873; High, Extr. Leg. Rem. 610, 611, 612, 613, 614; 30 Kan.
661, 665; 5 Kan. 213; 44 N. J. L. 470; 17 R. I. 391.)
XV. The provisions of our law (Gen. Stats. 1560-1563, 1571-1581), providing for an
election contest, create a distinct remedy differing substantially from either quo warranto
or information in the nature of quo warranto. The remedy to contest an election is a special
proceeding and must be strictly pursued. (Gen. Stats. 1560, 1585.) In place of an information
or complaint, a written statement (Gen. Stats. 1562) or specification of the grounds of
contest shall be filed. (Gen. Stats. 1581.) In place of a warrant or summons the time and
place to hear and determine such contested election is fixed by the judge (Gen. Stats. 1575),
or, in the case of a state office, the justices * * * shall have power to issue such process as
may be necessary to a complete hearing and final determination of such action. (Gen. Stats.
1581.) Special grounds of contest are prescribed, and, in case of a contest for a county office
at least, the contest must be instituted within forty days after the person whose office is
contested has been declared duly elected to such office. (Sec. 1562.) In case the reception
of illegal votes is alleged as the cause of contest, the party contesting such election shall
deliver to the opposite party, at least three days before such trial, a written list of the number
of illegal votes and by whom given, which he intends to prove on such trial. (Gen. Stats.
1563.) Damages may be given in favor of the persons bringing the contest in case he shall
prevail. (Gen. Stats. 1573.) In all respects, therefore, the proceeding to contest an election is
special and statutory, and is in no sense a proceeding under the common law such as is the
proceeding quo warranto or information in the nature of quo warranto. (Garrard v.
Gallagher, 11 Nev. 382; Dorsey v. Barry, 24 Cal. 449; Cosgrove v. Howland, 24 Cal. 457;
Kellner v. Chapman, 34 Cal. 635; French v. Leighty, 9 Ind. 475; Knox v. Fesler, 17 Ind. 254;
State, ex rel. Grissel v. Marlowe, 15 Ohio St. 114; Peck v. Weddell, 17 Ohio St. 271;
O'Doherty v. Archer, 9 Tex. 295; Wright v. Fassett, 42 Tex. 203; Rodgers v. Johns, 42 Tex.
339; Commonwealth, ex rel.
Commonwealth, ex rel. McCurdy v. Leach, 44 Pa. St. 332; Selleck v. Common Council of
South Norwalk, 40 Conn. 359; Saunders v. Haynes, 13 Cal. 145; People v. Holden, 28 Cal.
123.)
XVI. From the foregoing text books and cases it is apparent that quo warranto
proceedings and proceedings to contest an election are distinct and substantially different;
that the former is a proceeding upon the part of the sovereign and is at the common law, and
that the latter is a special proceeding provided by the statute and instituted by a private
individual to determine which of the parties, the contestant or the contestee, is entitled to
have the office. It is further apparent that in the proceeding quo warranto the matters which
may be tried in an election contest cannot be heard or determined by the court; in fact, it
appears that only such questions as relate to the title or commission under which the claimant
holds his right to the office or the eligibility of the claimant to take the office or the forfeiture
of the office by the claimant occurring since the election and in some cases under special
provisions of the law whether the election itself was fraudulently held.
XVII. The act incorporating the city of Reno divides the city into five wards. (Stats. 1897,
sec. 2, p. 51.) Section 5 of the act provides That at the general election in November, 1898,
and at each general election thereafter there shall be elected one councilman in each ward,
who shall be a resident of such ward. (Stats. 1897, p. 52; Dillon on Mun. Corp., p.120, sec.
19.) Dividing the city into wards, and bestowing upon each ward the right to elect one
member of the city council, is in strict accordance with the American policy of local
self-government.
XVIII. There was no vacancy in the office of senator from Storey county for the term for
which Lord had been elected. (Gen. Stats. 1670; Const. Nev., art IV, sec. 6.) Section 6, article
IV, provides that the senate shall be the sole judge of the election and qualifications of its
members. The senate is the exclusive judge. (People v. Metzgar, 47 Cal. 524; Cooley's Const.
Lim., p. 133; People v. Mahoney 13 Mich. 481; State v. Jarret, 17 Marl. 309; Lamb v. Lynd,
44 Pa. St. 337; Law and Practice of Legislative Assemblies, Cushing, p.
Cushing, p. 54.) There being no vacancy in the office of senator, printing his name on the
ticket was clearly illegal. (Const. Nev., art. IV, sec. 12; art VII, sec. 4; Gen. Stats. 1671,
1674.)
XIX. An election held to fill a vacancy in the office of state senator is absolutely invalid
and void, unless the governor of the state has previously issued a proclamation or writ of
election calling a special election therefor. (Const. Nev., art. IV, sec. 12; People v. Porter, 6
Cal. 26; People, ex rel. McCune v. John B. Weller, 11 Cal. 49; People v. Martin, 12 Cal. 409;
Kenfield v. Irwin, 52 Cal. 164.)
XX. Entering the names of three hundred persons on the register in the township of Reno
was clearly illegal. (Gen. Stats. 1501, 1503, 1505, 1506, 1507; Stinson v. Sweeney, 17 Nev.
310; Lynip v. Buckner, 22 Nev. 426; Sweeney v. Hjul, 23 Nev. 310.)
XXI. Ballots cast at the last election in Storey county for J. A. Conboie to fill the unexpired
term of the office of state senator should not be counted, because there was no unexpired
term. There was but one state senator to be elected for a full term. It is undisputed that one F.
C. Lord was elected state senator for Storey county for the full term of four years at the
general election held in 1897. He has been the incumbent of the office ever since and was a
member of the senate just adjourned and still holds the office. It therefore follows that the
name of Conboie was illegally placed on the tickets prepared by the election officers; the
crosses after his name are not after the name of any candidate. This court has decided that an
elector placing a cross after the name of a candidate for justice of the peace of a township in
which he did not reside was a distinguishing mark and the ticket could not be counted. It must
be a distinguishing mark to place a cross after the name of a person who runs for an office
having no existence. (Sweeney v. Hjul, 23 Nev. 419.)
XXII. Voters are not presumed to know the fact that an officer has resigned or died. The
function of the proclamation is to proclaim the fact of vacancy. (People, ex rel. Atty.-Genl. v.
Burbank, 12 Cal. 378; Tillson v. Ford, 53 Cal. 701.)
XXIII. It is well settled, both on principle and authority, that when the law prescribes
certain requisites in the ballot, and follows it with denunciation, that, unless the ballot
complies with the law, "it shall not be counted"then the statute is mandatoryand
non-compliance therewith will void the election.
that when the law prescribes certain requisites in the ballot, and follows it with
denunciation, that, unless the ballot complies with the law, it shall not be countedthen
the statute is mandatoryand non-compliance therewith will void the election. (Price v.
Lush, 24 Pac. Rep. 749, and cases cited; 10 Mont. Rep.; Sweeney v. Hjul, 23 Nev. 409; Taylor
v. Bleakley, 39 Pac. Rep. 1045; Richardson v. Jamison, 39 Pac. Rep. 1050; Curran v.
Clayton, 86 Me. 42; Layes v. Parsons, 104 Cal. 661; Ellis v. Glaser, 61 N. W. Rep. 648;
Dennis v. Caughlin, 22 Nev. 447; Lynip v. Buckner, 22 Nev. 426.)
XXIV. Any mark on ballot made by the voter, except the X in the space opposite the name of
the candidate for office, and whose name has been legally placed upon the ballot, is a
distinguishing mark and makes the ballot void. (Lindstrom v. Board Canvassers, 94 Mich.
467; Whittman v. Zahorik, 59 N. W. 57; Kearns v. Edwards (N. J. Sup.), 28 A. 723; Spurgin
v. Thompson, 37 Neb. 39; State v. Henry, 62 Conn. 269; Bechtel v. Alvin, 134 Ind. 193.)
XXV. Conceding that the act incorporating the town of Reno provides that the
councilmen are to be elected by wards and not on a general ticket, and the question is a very
simple one under the authority of Sweeney v. Hjul. All of the ballots cast having crosses
opposite the name of more than one candidate for councilman should be rejected. (Sweeney v.
Hjul, 23 Nev. 409.)
XXVI. Upon what theory did the court proceed in the case of Sweeney v. Hjul, in holding
that the voters in Eureka were at fault when they cast ballots with the numbers of the stubs
attached? It was undoubtedly upon the theory that every man is presumed to know the law.
No man can shield himself from the consequences of an illegal act upon the plea that he did
not know the law. When the ballots with the stubs attached were handed to the voters at
Eureka by the inspector they could see the number on the stubs. But the voter must be
presumed to have known that for that reason the ballot was illegal. The ballot alone did not
inform him of that fact, so, when some of the voters in Eureka county at the election two
years ago found the names of the candidates for township offices of two townships in Eureka
county printed on the tickets, nothing upon them indicated for whom the voters were legally
entitled to vote.
the voters were legally entitled to vote. To learn that, they would have to go to the statutes to
ascertain the same and to the records of the board of county commissioners to ascertain the
boundaries of the townships. Do not the voters of Storey county occupy the same position?
Are they not presumed to know the law? Are they to be permitted to shield themselves from
the consequences of their illegal acts upon the plea that they did not know the law? They
knew, or must be presumed to have known, that Conboie's name had been placed on the
ticket in violation of the law. They knew, or must be presumed to have known, that making a
cross opposite the name of Conboie was illegal and would invalidate the ballot. The question
was not a new one; they had not only the statutes to guide them, but two decisions of this
court also. The only difference between Storey and Eureka counties for the present year
would be the number of ballots that would be rejected, if this court adheres to its ruling in
Sweeney v. Hjul. The same reasoning applies to the vote of Reno.
XXVII. In regard to the voters whose names were entered in the register by parties other
than the registry agent, we are not aware of any decision by this court directly upon the point.
In Stinson v. Sweeney, the court say that in so far as it may be necessary to preserve the purity
of elections the law in regard to registration should be strictly construed. (Stinson v. Sweeney,
17 Nev. 309.) Is it not absolutely essential, in order to prevent the registration of parties not
entitled to vote, to require registration by a sworn officer who is authorized to administer
oaths, etc.? (Gen. Stats. 1501, 1507.) In this case the allegation is made the stronger on
account of the absence of the registry agent and to keep his office open to receive objections
to voters, and his failure to post lists of voters as required by law. Are we to be held to allege
and prove that all of these persons, whose names were entered upon the register in violation
of law, were not entitled to registration? Where the number is so large that would be indeed
an impossible task. These people knew who the registry agent was and they were chiefly at
fault for permitting an unauthorized party to enter their names on the register in violation of
the law.
XXVIII. The senate under our constitution is made the exclusive judge of the election,
qualification and returns of its members as well as of the right to determine when a vacancy
occurs in that body. (Hughes v. Felton, 11 Cal. 489; People v. Mahaney, 13 Mich. 481; State
v. Gilmore, 20 Kan. 551; Cooley, Const. Lim. 133; Kearns v. Edwards, 28 Atl. Rep. 723.)
XXIX. Where an election is not called by proper authority, as for senator in Storey county,
the fact that the people voted for a candidate put in nomination will not render such election
valid. (People v. Palmer, 51 N. W. 999; People v. Porter, 6 Cal. 26; People v. Martin, 12
Cal. 409.)
respondent's points and authorities on motion to strike out
and retax costs.
I. Rule VI of this court, authorizing the filing of cost bills in proceedings before the court,
provides: If either party desires to object to the costs claimed by the opposite party, he shall,
within ten days after the service upon him of a copy of the cost bill, file with the clerk and
serve his objections. Said objections shall be heard and settled and the costs taxed by the
clerk. The cost bill was filed and served on July 25th; no objection was made to the same,
nor to any item therein set forth, within the ten days required by the rule, nor was any
objection taken until more than seventy days had expired and after the term at which the
judgment had been entered had lapsed. The judgment so entered was final, no motion for new
trial having been filed or served, nor petition on rehearing filed within the time allowed by
statute or rule of this court.
II. No question is made or raised by relator that the items set forth as expenses in the cost
bill were not incurred or paid. The only objection urged is that the cost bill was not filed
within the time authorized by the statute. Relator had ample opportunity to urge this objection
within the time provided for in rule VI of this court, above quoted. The right to object to any
item in the cost bill is given, if that right is exercised within the time allowed by the rule. Not
having taken his objection within the ten days allowed by rule, and making no showing to
excuse his failure in making his objection in time, we urge that he is estopped to the costs
of respondent at this time, or to any item thereof.
his objection in time, we urge that he is estopped to the costs of respondent at this time, or to
any item thereof.
III. A court has no power to amend a judgment or order made at a previous term unless a
motion to that effect was made, or some proceeding instituted at such term to procure the
amendment to be made, and such motion or proceedings were continued. (DeCastro v.
Richardson, 25 Cal. 49; Jones v. Hart, 60 Mo. 351; Hastings v. Cunningham, 35 Cal. 549.)
IV. A judgment cannot be corrected and reformed after the term at which it was rendered.
(State, ex rel. Hay v. Harper, 56 Mo. 611; Sibbald v. United States, 12 Pet. 491; Bronson v.
Schulten, 104 U. S. 416; Doe v. Waterloo M. Co., 60 Fed. Rep. 643; Hoagland v. Way, 35
Neb. 387; Horner v. Horner, 37 Ill. App. 199; Pursley v. Wickle, 30 N. E. Rep. 1115.)
V. Relator seeks to do indirectly what he cannot do directlyattack the correctness of the
judgment as entered by the clerk. No motion to correct or modify the judgment as entered was
made within the time provided by statute, or rule of this court, and he cannot now be heard to
complain about respondent's costs, or any item thereof, as set forth in the verified cost bill
filed with the clerk on July 25, 1899, a copy of which was served on counsel for respondent
on the same day. His objection to the costs, if he intended to rely upon such objection, should
have been made in proper form before they were entered in the judgment by the clerk. When
regularly entered up in a judgment, the costs become as much a part of the judgment as
anything else contained therein, and their amount and justice are no more subject to collateral
attack. (State v. Comrs. Lander Co., 22 Nev. 71.)
Per Curiam:
At the general election of 1898, the relator, the respondent, George Russell, and J. B.
McCullough were candidates for the office of governor of the State of Nevada. By the official
canvass it appeared that the respondent received 3,570 votes, the relator 3,548 votes, and each
of the other candidates a lesser number than the relator. The respondent was declared duly
elected to the said office for the term of four years from the first Monday in January, 1899. A
commission was duly issued to him accordingly, and upon said last-named date he duly
qualified and entered upon the discharge of the duties of said office.
duly qualified and entered upon the discharge of the duties of said office.
This proceeding is brought to oust the respondent from said office, and to instate the
relator therein. The relator, by his complaint, alleges that on the 2d day of January, 1899, the
respondent usurped, intruded into, and ever since and now unlawfully holds, the office of
governor of the State of Nevada, and ever since has, and now withholds the said office from
relator. He alleges that the relator received the highest number of the legal ballots cast for said
office, and was duly elected thereto, and that a great number of ballots were cast and counted
for the respondent which were illegal and void, on certain grounds named, which should have
been, and should now be, rejected from the count of votes cast for governor, and that, if they
be excluded therefrom, the true result of the election will be found to be in favor of the
relator.
It is due the able array of counsel of the respective parties to state that they have exhibited
remarkable industry in presenting the facts, and in compiling the authorities in support of
their several contentions on the legal points involved, and have maintained their positions on
both questions of law and fact with great clearness and ability. To give in full the questions
raised, and note the argument of counsel and the authorities cited, would doubtless fill a
volume of the Nevada Reports.
In the preparation of the final opinion the members of the court have endeavored to state
as plainly and concisely as they could the more important legal questions presented, and the
rulings thereon made during the progress of the trial, as well as those reserved for
determination till the close, with brief citations of authorities, and mainly without elaboration.
For full citation of authorities on the several questions raised and discussed, reference is made
to the briefs of the counsel. The desire of the court has been, throughout the trial, to reach as
speedily as possible the final and paramount question in this case, for which of the
candidates, the relator or the respondent, were the greater number of legal ballots cast for the
office of governor? and from the evidence obtained by an inspection of the ballots
themselves to arrive at a correct conclusion.
obtained by an inspection of the ballots themselves to arrive at a correct conclusion.
Preliminary Question: The respondent presented a preliminary questionan objection to
the jurisdiction of the court on the ground that the proceeding was not brought by the
attorney-general, or in his name. The statute authorizes that officer to bring such action upon
his own information, or on the complaint of a private party in the name of the state, against
any person he has reason to believe usurps, intrudes into, or unlawfully holds or exercises,
any public office or franchise. (Gen. Stats. 3342.) He may, in addition to the statement of the
cause of action, set forth in the complaint the name of the person rightly entitled to the office,
with a statement of his rights thereto. (Gen. Stats. 3343.) The attorney-general, not believing
that the respondent had usurped, intruded into, or was unlawfully holding the office of
governor, refused to bring the action. He interposed no objection to the relator bringing the
action in the name of the state on his own relation, and the court granted him leave to do so.
The constitution vests in this court original jurisdiction in quo warranto proceedings. The
respondent's objection was overruled, not without the court entertaining doubts as to the
correctness of the ruling. To have dismissed the proceeding would have left the relator
without an adequate remedy, although by his complaint he showed that he had a right to said
office.
An act relating to elections (Laws 1873, p. 197) provides for contesting the election of
any person declared duly elected to a district, county, or township office, but it contains no
valid provision for contesting the election of a person declared elected to a state office. The
only remedy a person has, who may be duly elected to a state office, to oust one unlawfully
holding the same, and have himself instated, is by proceedings in quo warranto; and when
the prosecuting officer refuses to institute such proceedings there is no remedy, unless the
contestant be permitted to bring the action on his own relation. Evidently the legislature did
not intend to deny to any person the right to have his claim to an office adjudicated by the
courts in the event of the refusal of the prosecuting officer to act, when such person's claim
is based on such alleged facts as show him to be entitled to the office.
prosecuting officer to act, when such person's claim is based on such alleged facts as show
him to be entitled to the office. By an oversight the legislature has failed to provide for such
contingency. Its attention now being called to it, doubtless appropriate legislation will be had,
and contestants and courts be relieved from such embarrassment.
Inspectors and Clerks: The statute (Laws 1873, p. 197, sec. 2) provides that the inspectors
and clerks of election shall not be appointed from the same political party. The question of
the validity of the appointment of inspectors and clerks in Humboldt and Lander counties
from the same political parties was raised by respondent's demurrer to the complaint. Held,
that said provision of the statute is directory, and non-compliance therewith, simply, is not
sufficient ground for rejecting the vote of the county or precinct; that it is only those
provisions of the election law relating to the time and place of holding elections, the
qualifications of voters, and such others as are made essential prerequisites to the validity of
an election, that are mandatory; than an honest or mistaken disregard of them, not resulting in
fraud, will not justify the rejection of an entire vote of a precinct. (Russell v. McDowell, 83
Cal. 70, 23 Pac. 183; Paine, Elect. 379; 6 Am. & Eng. Enc. Law, 302; McCrary, Elect.)
Misconduct on the part of the inspectors, electors and bystanders at Paradise and Kennedy
precincts in Humboldt county, and at three precincts named in Lander county, at said election,
was alleged by the complaint, setting forth specific acts done, such as are prohibited by an act
to promote the purity of elections, and by that act made criminal offenses. It was not alleged
that the respondent in any manner participated in said acts, or that they were done with his
knowledge or consent, or that any elector who desired to vote for the relator was prevented
from properly marking his ballot in secret and casting it for him, or that any elector was
influenced to vote for respondent on account of any of the alleged acts, or that any elector
who voted at either of said precincts participated in any of the said acts. On demurrer to the
complaint, held: That said alleged acts are not sufficient grounds for rejecting the vote of any
of the said precincts from the canvass of the votes cast for governor.
By the terms of said act to promote the purity of elections, it is provided that the election
of a person to office shall not be void, nor shall he be removed from or deprived of his office,
by reason of the commission of any of the offenses prohibited by said act, if not committed by
him, or with his knowledge or consent. (6 Am. & Eng. Enc. Law, 359, 360; McCrary, Elect.
530; State v. Mason, 14 La. Ann. 505.) And that it is well settled by authority that any
irregularity in conducting an election which does not deprive a legal elector of casting his
vote according to law, or admit a disqualified person to vote, or cast uncertainty on the result,
and has not been occasioned by the agency of a party whose right to office is in contest, shall
not vitiate the election. (Gass v. State, 34 Ind. 425; Cooley, Const. Lim., 6th ed., 777, and
cases cited.)
The Soldiers' Votes: It was alleged by the complaint that Troop A, First Nevada Cavalry,
in actual service in the United States army without the boundaries of the state, on the 8th day
of November, 1898, on board ship on the high seas, between the coast of California and the
Hawaiian Islands, who were citizens and electors of this state, held an election and cast their
ballots in due form of law, and made due return thereof to the secretary of state; that the board
of canvassers, consisting of the governor, chief justice of the state, and the United States
district attorney, as provided in the election ordinances of the constitution of this state, and
the present state board of canvassers, consisting of the chief justice and one or more of the
associate justices, have each failed to open and canvass said soldiers' votes; that said votes, if
opened and canvassed, will show 11 votes cast for the respondent and 24 votes cast for
relator; and that said votes should be canvassed and counted by the court. Held, that said
election ordinance applied only to the election held in pursuance of the mandate of congress,
found in the enabling act, requiring the constitutional convention to submit for ratification or
rejection the constitution to the people of the Territory of Nevada, including those in the army
of the United States, both within and beyond the boundaries of the territory; that the
provisions of said ordinance do not, and were not intended to, apply to future elections held
under the constitution and state government, but only to the election therein specifically
provided for, and to any future election that congress might for any reason order for
resubmitting the constitution to the people of the territory, as congress did with reference
to a constitution framed by a convention for Kansas a few years before; that there is no
statutory provision regulating the manner of voting or holding elections by persons who
may be in the military or naval service of the United States, beyond the boundaries of the
state, or for making returns of such election; and that without such provisions no such
election could be legally held.
constitution and state government, but only to the election therein specifically provided for,
and to any future election that congress might for any reason order for resubmitting the
constitution to the people of the territory, as congress did with reference to a constitution
framed by a convention for Kansas a few years before; that there is no statutory provision
regulating the manner of voting or holding elections by persons who may be in the military or
naval service of the United States, beyond the boundaries of the state, or for making returns
of such election; and that without such provisions no such election could be legally held.
(Cooley, Const. Lim. 98.)
The Answer: The respondent's answer consists of denials and allegations. The question of
the validity of 447 ballots cast for relator in Reno was raised. It was most earnestly and
elaborately argued by respective counsel, as the decision of the court if against relator's
contention, it was doubtless considered, would terminate the proceeding, under a rule adopted
in the Sweeney-Hjul Case, 23 Nev. 409, 48 Pac. 1036, and 49 Pac. 169. The opinion and
ruling of the court on that question were given as follows:
The respondent has set up in his answer, as an affirmative defense, that at said election
there were five election districts duly established in the city of Reno, each district embracing
one of the five wards of the city; that the act incorporating the city provided that the electors
of each ward should elect one councilman, the five councilmen thus elected to constitute the
board of councilmen of said city; that in each ward a certain number of ballots, all of which
had printed thereon the names of all the candidates for city councilmen, were cast and
counted for the relator, amounting in the aggregate in all the wards to 447 ballots, on which
there were crosses and other illegal and distinguishing and identifying marks made opposite
the name of the persons named and nominated for councilmen in each of the other wards of
the city.
The relator interposed a general demurrer to that portion of the answer, and asked the
court to decide the question of the validity of the ballots cast in the respective wards by voters
who voted for councilmen who resided in, and were candidates for the office of councilman
for, a ward other than that in which the voter resided or was entitled to vote, irrespective
of the allegation that said ballots contained other distinguishing and identifying marks.
candidates for the office of councilman for, a ward other than that in which the voter resided
or was entitled to vote, irrespective of the allegation that said ballots contained other
distinguishing and identifying marks. It is claimed by the relator that, under the act
incorporating the city of Reno (Stats. 1897, p. 50), each elector of the city had a right to vote
for all five of the city councilmen. Upon this question the court is of one mind. By section 3
of said act it is provided that the corporate powers of the city shall be vested in a city council,
to consist of five members, who shall be actual residents and owners of real estate in the city,
who shall be chosen by the qualified electors thereof, provided that no two or more of said
five councilmen shall be residents of the same ward. If this section stood alone, without
further enactment limiting or restricting in any manner its provisions, then would the claim of
the relator be tenable; but is further provided by section 5 of said act that at the general
election in November, 1898, and at each general election thereafter, there shall be elected one
councilman in each ward, who shall be a resident of such ward, and an owner of real estate in
the city, who shall hold office for the term of two years, and until their several successors are
elected and qualified.
The further provision of said section relates to the manner of filling any vacancy that may
occur in the board, and the time the councilmen so elected shall enter upon the discharge of
their duties. It cannot be said or urged with any reason that the legislature did or intended to
do an unnecessary thing by the enactment of section 5 of said act, yet, if realtor's contention is
true, then it was unnecessary to provide that there should be elected one councilman in each
ward who shall be a resident of such ward,' as section 3 practically made provision for the
same. If the legislature did not intend what is said in express terms, then it did an unnecessary
thing, and the requirements of section 5 would have been complete by the simple provision
for the election of five councilmen at the general election of 1898, and at each general
election thereafter, to hold office for a term of two years, and until their successors are elected
and qualified. This is the construction we are asked to put upon this section, and, in order so
to do, must eliminate language deliberately incorporated in the statute by the legislature,
that would give it a meaning different from the one claimed.
incorporated in the statute by the legislature, that would give it a meaning different from the
one claimed.
It is not our duty to legislate, or to destroy legislative intention, except for constitutional
reasons, under well-established rules. It is our duty to construe laws and give effect to
legislative intention. Under well-settled rules of construction (so well settled as not to require
citation of authorities), to the effect that the courts will look into the statutes themselves (the
language used by the lawmakers in the statutes), and, in order to give effect to all the
provisions of the statutes, will consider the various sections thereof together, the question
becomes plain and simple. Under these rules the councilmen of the city of Reno were to be
chosen by the electors of the cityeach councilman by the electors of his ward. In other
words section 3 provides for the election of the city councilmen of the city, and section 5
provides for the manner of their election, etc. The language used in our constitution presents
almost an exactly parallel case, from which the same claim could as reasonably be made, and
yet no one would pretend to make such a claim. Section 1 of article 2, providing how and by
whom the elective franchise may be enjoyed, declares that every male citizen of the United
States, not laboring under disabilities named in the constitution, of the age of twenty-one
years and upwards, who shall have actually, and not constructively, resided in the state six
months, and in the district or county thirty days, next preceding any election, shall be entitled
to vote for all officers that are now are or hereafter may be elected by the people, and upon all
questions submitted to the electors at such election.'
The right to vote for all officers, from governor to and including all assemblymen and
state senators, could not be given in stronger or broader language, and, standing alone, such
right might reasonably be claimed by the elector; yet no one claims to exercise the right,
because, by subsequent sections, in a different article, provision is made for the election of
senators and assemblymen in their respective districts. The assertion of any such right by the
individual elector could be maintained only by ignoring and utterly disregarding the
subsequent sections regulating and governing the election of senators and assemblymen in
their respective districts.
election of senators and assemblymen in their respective districts. The same may be said of
section 3, incorporating the city of Reno. If each elector of the city has the right to vote for all
the five councilmen to be elected therein, then must we disregard the express provision of
section 5 of the same act. It has also been claimed that a councilman, under the law, has no
exclusive power or authority in his own ward. Here, again, the analogy between the statute
and constitution is apparent. Neither has the assemblyman or senator, by constitution or law,
any exclusive power or authority in his county or district.
We come now to the more serious and important question, involving the application of
the rule laid down in Sweeney v. Hjul to the facts alleged in respondent's answer. We fully
realize the importance and effect of that rule, and the strength of the reason upon which it is
based, under the Australian ballot law, as applying to the individual elector and the individual
ballot; yet a case has arisen under the construction of that act which could never have been
contemplated by the legislature in its passage, and the strict construction of which would
operate to disfranchise a large per cent of the voters of the state living in the same county, and
by the same strictness of construction would, upon a more careful examination of the act,
exclude the ballots of any precinct or county which might through the fault of the officers
have printed thereon names of officers for whom the elector had no right to vote in such
precinct or county.
The right of the single elector may be and is just as sacred as the rights of the many,
under our constitution; yet where a construction of the law is likely to disfranchise a large
number of the electors in a case, arising through the mixed fault of the officers and voters in
preparing and casting ballots in a precinct or county, in which reason almost conclusively
suggests that there was neither fraud nor corruption on the part of either, there being no
showing, by averment or otherwise, outside the ballots, of such fraud or corruption, and
which never could have been contemplated by the legislature in the passage of the act, the
language of which must be construed by the court in order to give it a just and reasonable
effect and harmonize it with constitutional rights, and that much-desired purity of election
intended by its passage, and where it is apparent that any modification of the
construction of such act heretofore given cannot be made in the interest of many, under
the above showing, without injury to the individual and his rights, then justice demands
that the rule and construction be abrogated, in the interest of all, and the settlement of
the matter be left to the legislative department to provide in express and certain terms,
having regard for the constitution, plain and simple rules that shall govern in all such
cases.
tional rights, and that much-desired purity of election intended by its passage, and where it is
apparent that any modification of the construction of such act heretofore given cannot be
made in the interest of many, under the above showing, without injury to the individual and
his rights, then justice demands that the rule and construction be abrogated, in the interest of
all, and the settlement of the matter be left to the legislative department to provide in express
and certain terms, having regard for the constitution, plain and simple rules that shall govern
in all such cases.
For these reasons a majority of the court deem it proper to overrule that part of the
decision in Sweeney v. Hjul applicable to the facts shown by that part of the answer under
consideration, and sustain the relator's demurrer thereto. This conclusion has been reached
after deliberate and careful consideration and discussion, and not without some doubt, and is
based in part upon the rule that public interest in matters of this kind will be best subserved
by giving a law of doubtful meaning the construction that will result in the least wrong and
injustice.
The Election in Storey County: For further answer the respondent alleged, in substance,
that on the 3d day of November, 1896, F. C. Lord was duly elected state senator for Storey
county for the term of four years from and after the 4th day of said November, and
subsequently duly entered upon the discharge of the duties of his office; that thereafter, on the
8th day of July, 1898, he was duly appointed paymaster in the army of the United States (a
lucrative office), with the rank of major; that on the ____ day of October, 1898, J. A. Conboie
was nominated as a candidate for state senator by petition filed with the county clerk of said
county, to fill the unexpired term for which Lord had been elected; that at said last-named
date there was no vacancy in the office, and the governor of Nevada had not by proclamation
called an election to fill any such vacancy; that the name of J. A. Conboie was printed on the
ballots distributed and used in all the precincts in said county at said election; that there were
595 ballots cast and counted for relator for said office of governor with the name of said J. A.
Conboie printed thereon as a candidate for state senator, and with a cross opposite his name
on each ballot.
name on each ballot. It was alleged that said ballots, by reason of the above alleged facts,
were illegal and void, and should not have been, and should not now be, counted for the
relator.
The constitution provides: No person holding any lucrative office under the government
of the United States, or any other power, shall be eligible to any civil office of profit under
this state. (Article IV, sec. 9.) It was admitted in argument on demurrer to the above portion
of the answer that F. C. Lord accepted said appointment and entered upon the duties of the
office. Held, that, by reason of the acceptance of said appointment, he became incapable of
legally holding the office of state senator; that the acceptance of the federal office was a
resignation of the state office, and created a vacancy in the latter office. (State v. Clarke, 3
Nev. 570; State v. Clarke, 21 Nev. 333, 31 Pac. 545; McCrary, Elect., 3d ed., sec. 301;
People v. Carrique, 2 Hill, 93; People v. Leonard, 73 Cal. 230, 14 Pac. 853.) It was
contended by counsel, upon the authority of the California cases, that a special election must
be held to supply a vacancy occurring before the expiration of a full term in office, and that
the proclamation of the governor is necessary to the validity of a special election. No such
proclamation was issued with respect to any vacancy in the said office of state senator.
Section 1668, Gen. Stats., provides: When any vacancy shall occur in the office of a
member of the senate or assembly by death, resignation or otherwise, and a session of the
legislature is to take place before the next general election, the governor shall issue a writ of
election * * * to fill such vacancy. Held, that no proclamation or writ of election was
necessary to enable the people of said county to legally fill said vacancy at said election, as
there was no session of the legislature to take place between the date of the occurrence of said
vacancy and the next general election. It was argued that voters are not presumed to know
that an officer has resigned or died, and that one of the functions of the governor's
proclamation is to give notice of the fact of a vacancy. But F. C. Lord was a prominent citizen
of Storey county, and well known to the people, and for several years prior and up to said
appointment was the duly commissioned and acting colonel of the Nevada National Guard.
and acting colonel of the Nevada National Guard. His appointment to and acceptance of said
office of paymaster were of great public notoriety, and the people of Storey county were as
well advised of these facts, and that a vacancy existed in the said office of state senator, as the
governor or any other person. Held, that said election for state senator was a valid election,
and that none of the 595 ballots cast as aforesaid should be rejected in the count for relator by
reason of being so cast, or because of a cross being made thereon opposite the name of J. A.
Conboie.
Registration: It is alleged by the answer that in the city and township of Reno there were
more than 300 names of persons illegally placed on the register of voters by parties other than
the registry agent, and that more than 200 of these persons thus illegally registered cast their
ballots for the relator, and that said ballots were canvassed and counted for him. It is
contended by counsel for respondent, as we understand, that the votes of these persons should
be excluded from the count in this case, or, if that be impracticable, that the election held in
Reno be declared void, so far as the governorship is concerned. It is not alleged, nor was it
attempted to be shown, that said 300 persons, or any of them, were not duly qualified
electors, by reason of the want of any of the electoral qualifications prescribed by the
constitution.
The evidence as to said registration is that the registry agent, by reason of being sick for 10
or 12 days immediately preceding the statutory time for closing the registration, was unable to
attend to the registration of the voters, and he requested W. D. McNeilly, the constable, who
had his office in the room with the registry agent, to take the names of persons applying for
registration in his absence, and enter them on the official register. Subsequently the registry
agent certified the names of all of these persons to the inspectors of election in the several
wards of Reno, with the names of the persons he had registered himself. Most of these
persons, if not all, voted at said election. McNeilly testified that he registered no one about
whose right to registration he had any doubt; that he consulted the district attorney and the
chairman of the board of county commissioners, and they advised him to go ahead and
register the voters.
sioners, and they advised him to go ahead and register the voters. Although there is no
evidence tending to show bad faith on the part of any one, and we are of the opinion that all
connected with said registration acted in good faith, yet such registration was without
authority of law. The provisions of the registration law for ascertaining whether the applicant
for registration is legally entitled thereto should be strictly followed. This was not done in the
registration in question. Besides, no one is legally authorized to register voters, except
justices of the peace and other persons duly appointed and qualified as provided by statute for
that purpose.
While the statute provides for filling a vacancy occasioned by death or resignation of the
registry agent, there is no provision for the registration of voters in case of any other disability
of the agent. By section 14 of the registry law, the fact that the name of a person offering to
vote appears in the check list and copy of the official register furnished the inspectors by the
regular registry agent is prima facie evidence of such persons's right to vote. The inspectors
have no right to refuse to receive his vote, except upon his failure to prove his identity as the
person who was registered in that name, when required to do so under the provision of said
section. They are only ministerial officers in such a case, and have no discretion but to obey
the law and receive the vote. (Cooley, Const. Lim. 617; Wolcott v. Holcomb, 97 Mich. 361,
56 N. W. 837.)
Under the above facts and circumstances, we are of the opinion that the ballots of the said
persons so registered should not be rejected on account of said irregular or illegal registration.
Non-Resident Voters: It is alleged by the complaint that several persons named voted for
the respondent at certain precincts who were not residents of the county, and like allegations
are made by the answer with respect to persons who voted for the relator, but neither party
produced any evidence to sustain such allegations. It is alleged by the complaint that in
certain precincts in Lander county some 20 or more persons named voted for respondent who
were not residents of the precinct, but residents of other precincts in the county, and similar
allegations are made with respect to certain persons having voted for respondent in Nye,
Eureka, and Humboldt counties, precincts other than that of their residence.
the county, and similar allegations are made with respect to certain persons having voted for
respondent in Nye, Eureka, and Humboldt counties, precincts other than that of their
residence. The answer contains like allegations with respect to persons who voted for the
relator in several counties. As to the residence required as a condition to the right of voting,
the constitution provides that 6 months' actual residence in the state, and 30 days' in the
district or county, next preceding any election, shall entitle every person to vote for all
officers to be elected by the people.
The statute makes it the duty of the county commissioners to establish election precincts
and define the boundaries thereof, but if there be an election precinct established in any
county, with the boundaries so defined that the courts or the electors may determine the
territorial extent of the precinct, it has not been shown in this case. In a county where there
are no election precincts properly established and bounded, an elector of the county, properly
registered by any registry agent therein, can legally take the certificate prescribed by section
10 of the registration law, which will entitle him to have his name registered at any other
polling place in the same county at any time before the delivery of the certified copy of the
register to the inspectors of the election, and when so registered he will be entitled to vote at
such polling place.
Errors of Inspectors: It is alleged by relator, in substance, that in certain precincts of the
several counties legal ballots were cast for him, but not counted by the inspectors; that in
certain precincts a certain number of ballots, amounting in the aggregate to several hundred,
which contained distinguishing and identifying marks, such as to render them void, were cast
and counted for the respondent. By the answer it is likewise alleged that a certain number of
legal ballots in certain precincts were cast for respondent, but not counted for him, and that in
certain precincts and counties a great number of illegal and void ballots, by reason of
distinguishing and identifying marks made thereon, were cast and counted for the relator. In
support of these allegations, respectively, the parties offered in evidence the ballots. In nearly
every instance when the ballots were offered from a county or precinct, an objection to their
introduction was made by the other party, on several grounds.
county or precinct, an objection to their introduction was made by the other party, on several
grounds.
The ballots were produced in court by the present county clerks, whose testimony is
clearly sufficient to show that the ballots were properly cared for after coming into their
possession, but in most cases the ballots were shown to have been in the custody of other
officers before being received by the clerks. These other officers were not present, and their
testimony was not taken. The ballots were admitted under the objection; the court reserving
the consideration of the objections until its examination of the ballots themselves, the official
returns of the inspectors, and the ballots returned as rejected by them. From such examination
it clearly appears that there was no marking of or tampering with any of the ballots after
leaving the hands of the voters that impeaches their validity. All of the objections to the
introduction of the ballots in evidence are overruled.
The Ballots: The relator and the respondent, by their respective counsel, examined all the
ballots cast in the state, in open court, except from four precincts, in which the official returns
show that 60 votes were cast for relator and 100 for the respondent; and each party objected
to certain ballots on the alleged grounds that they contained distinguishing and identifying
marks, and by reason thereof were void, and should not have been counted by the inspectors,
and should not be counted by the court. The relator objected to 564 ballots cast for
respondent, and the respondent objected to 593 ballots cast for the relator. There were 6,018
ballots cast for the two candidates to which no objection was made by either party. Of these
ballots the relator received 2,979, and the respondent 3,039. Of the ballots cast for
respondent, and counted for him by the inspectors, to which the relator objected on the
ground that they contained illegal, identifying, and distinguishing marks, the court rejected
135, upon the ground specified.
Of the ballots cast for relator, and counted for him by the inspectors, to which the
respondent objected on the same ground, not including the so-called red-line ballots, the court
rejected 119. Deducting the 135 ballots from 3,570 counted for respondent as shown by the
official returns leaves him 3,435 votes.
3,435 votes. Deducting the 119 ballots from 3,548 counted for the relator as shown by said
returns leaves him 3,429 votes. The inspectors rejected in the aggregate 5 legal ballots cast for
the relator, and by errors otherwise in the counts made his vote 6 less in the aggregate than he
properly received. In one precinct 2 more votes were counted than were cast for him. The
relator's net gains are 9 votes. The inspectors rejected in the aggregate 12 legal ballots cast for
the respondent, and by errors otherwise in the count made his vote 2 less than he received,
and by like errors in other precincts he was given 3 more votes in the aggregate than were cast
for him. The respondent's net gains are 11 votes. To the above number of votes cast for the
relator we add his said net gain, making his total vote 3,438. To the above number of votes
cast for the respondent we add his said net gain, making his total vote 3,446a majority over
the relator of 8 votes, not considering the 55 red-line ballots cast for the relator, which, as will
be seen below, the court rejected on the grounds therein given.
Objections: We come now to the consideration of the objections made to the ballots
offered by the respective parties. The necessarily hasty examination of a part of the relator's
objections to ballots, made during a temporary adjournment of court, and without a copy of
the reporter's notes, resulted, as we anticipated, in some mistakes in overlooking objections
made, to which counsel on both sides subsequently called our attention. We have again
examined all the ballots, and carefully noted the objections taken thereto, as shown by the
copy of the reporter's notes, and have endeavored to correct any such errorserrors mainly
due to rulings upon objections to ballots which had been rejected by the election officers, and
in some cases where the markings rendering the ballots void were, from their position and
character, not easily detected during the hasty examination given. It is sufficient to say that, in
the absence of any averment or proof of fraud or corruption on the part of any person at the
election, we have considered the constitutional right of the electors, as well as the rights of
the relator and respondent, in all the rulings upon objections to the separate ballot, and have
held ballots good and valid in all instances where such ruling was not in violation of the
spirit and strict letter of the law, and have thereby followed the rulings of this court in the
earlier cases coming under the provisions of that law.
where such ruling was not in violation of the spirit and strict letter of the law, and have
thereby followed the rulings of this court in the earlier cases coming under the provisions of
that law.
We have also taken into consideration the fact that the markings required to be made by
the elector as indicating his choice of candidates must be made by pencil, by as many
different persons as there were ballots cast; that there were electors of different ages,
conditions of health, and of different experience in the use of pencils. We have also taken into
consideration the place required by law where the markings were made. We have also
considered the fact that the law does not, and could not possibly, specify the size, the length
of the lines composing the cross, or the angle at which these lines should cross each other,
that no two persons make the same kind or character of a cross with a pencil, and that it is a
rare occurrence that the same person makes the same kind or character of a cross with the
same pencil under the conditions imposed.
We have therefore overruled objections to the validity of ballots based upon the following
alleged bad markings: In all cases where the elector had attempted to make the cross, and had
actually made the so-called letters Y, T, inverted T, V, inverted V; also, where the
cross made resembles the figure 4; also, the so-called double crosses, where it is apparent
the voter had attempted to retrace the lines composing the cross; also, crosses made by curved
or irregular lines, evidently the result of nervousness or physical infirmity, or the roughness of
the boards upon which the ballot was placed for marking; also, accidental pencil markings;
also, ink blotches, evidently the result of accident on the part of the election officers; also
dirty finger marks; also, crosses indiscriminately appearing upon the face of the ballots,
where it is evident such crosses were simply the impressions of crosses made in the proper
places upon the ballots with a soft lead pencil, and such impressions were made by the
folding of the ballots (of this class there were a very large number of ballots); also, ballots
with words written thereon in pencil or ink, where it is apparent from the position of the
words upon the ballot, the import of the words themselves, and the character of the writing,
that the same was done by the election officers after the ballot had been marked and cast
by the voter; also, ballots marked with large and heavy crosses in proper place; also,
accidental pencil dots and fine and irregular pencil marks; also, slight attempted erasure
of crosses made by the bare finger; also, crosses found upon the back of the ballots,
where it is apparent that the same were made from the impression of the pencil in the
attempt of the voter to properly mark his ballot resting upon a stained or dirty board;
also, some of the so-called stars, evidently the result of an attempt to retrace the lines
composing a cross, or an attempt to retrace such lines by one with a nervous hand, or
upon rough boards; also, crosses made with a slight hook at one or the other end of the
lines forming them.
and the character of the writing, that the same was done by the election officers after the
ballot had been marked and cast by the voter; also, ballots marked with large and heavy
crosses in proper place; also, accidental pencil dots and fine and irregular pencil marks; also,
slight attempted erasure of crosses made by the bare finger; also, crosses found upon the back
of the ballots, where it is apparent that the same were made from the impression of the pencil
in the attempt of the voter to properly mark his ballot resting upon a stained or dirty board;
also, some of the so-called stars, evidently the result of an attempt to retrace the lines
composing a cross, or an attempt to retrace such lines by one with a nervous hand, or upon
rough boards; also, crosses made with a slight hook at one or the other end of the lines
forming them.
Many objections were also made to ballots based upon the form and irregularity of the
crosses, which we do not deem it necessary to specifically name.
Objections to ballots which have been sustained are in the main based upon the following
kind or character of marks: Ballots with horizontal lines thereon; ballots marked with a
capital W, and a horizontal line crossing the same; ballots in some instances marked with a
perpendicular or vertical line; ballots marked with a circular loop; ballots marked with
crosses, and the same erased or scratched out with a lead pencil; ballots with erasures
sufficient to deface and destroy the texture of the paper; ballots with words written thereon, in
all cases where it is apparent that the words were written by the elector, or by some other
person unauthorized, before the same were cast by the elector; ballots with crosses on the
margin thereof, and not after the names of candidates to be voted for; a ballot with the letter
D of A. D., in the official heading thereof, scratched over deliberately with a lead pencil;
ballots marked with crosses not after the names of any candidates to be voted for, but placed
after the designation of the office; ballots with crosses placed immediately between the
printed names of the candidates; some ballots marked with stars and with marks resembling
spiders; ballots with the cross and also a figure 1 placed thereafter; ballots where the elector
had voted for the proper number of candidates for some office, and had also placed an
additional cross in the proper place after the blank space left for the writing in of the
name of any candidate nominated to fill a vacancy; ballots where the elector had
scratched off with a pencil words or names printed thereon; ballots where two crosses are
made after the name of a candidate voted for; ballots marked with a cross in proper place,
and inclosed with the letter "O," or circular lead pencil mark; a ballot bearing no cross,
but with a perpendicular pencil mark in proper place after the names of all the candidates
intended to be voted for; ballot with the letter "S," and a vertical line drawn through the
same; ballots with the crosses placed immediately to the left of the names of the
candidates voted for; ballots with equation marks between the printed names of the
candidates and the party designation; ballots marked with two vertical lines not forming a
cross {ballots whereon the voter had voted for more candidates for the same office than
were to be elected were not held to be void, but such ballots, where the elector had
attempted to vote, or had voted, for the relator and the respondent, or for the relator or
respondent, and some one of the other candidates for governor, were not counted for
either relator or respondent or other candidate for governor); ballots marked with the
letter "N," and a horizontal line drawn across the same; a ballot with a cross in the letter
"O" of the printed word "Official"; ballots marked with a blue or purple pencil; ballots
marked with ink; ballots marked with the ordinary business check mark; ballots with the
cross between the name of the officer to be elected and the instruction "Vote for One,"
etc.
candidates for some office, and had also placed an additional cross in the proper place after
the blank space left for the writing in of the name of any candidate nominated to fill a
vacancy; ballots where the elector had scratched off with a pencil words or names printed
thereon; ballots where two crosses are made after the name of a candidate voted for; ballots
marked with a cross in proper place, and inclosed with the letter O, or circular lead pencil
mark; a ballot bearing no cross, but with a perpendicular pencil mark in proper place after the
names of all the candidates intended to be voted for; ballot with the letter S, and a vertical
line drawn through the same; ballots with the crosses placed immediately to the left of the
names of the candidates voted for; ballots with equation marks between the printed names of
the candidates and the party designation; ballots marked with two vertical lines not forming a
cross (ballots whereon the voter had voted for more candidates for the same office than were
to be elected were not held to be void, but such ballots, where the elector had attempted to
vote, or had voted, for the relator and the respondent, or for the relator or respondent, and
some one of the other candidates for governor, were not counted for either relator or
respondent or other candidate for governor); ballots marked with the letter N, and a
horizontal line drawn across the same; a ballot with a cross in the letter O of the printed
word Official; ballots marked with a blue or purple pencil; ballots marked with ink; ballots
marked with the ordinary business check mark; ballots with the cross between the name of
the officer to be elected and the instruction Vote for One, etc.
Ballots with the crosses directly on the line between the candidates for governor, and in
such a position as to prevent the court from determining for what candidate the same were
intended to be cast, have not been held to be void, but such ballots have not been counted for
the office of governor, and other ballots bearing marks the character of which renders it
impossible to describe. We deem it necessary to say here that under the law we have held as
valid and counted all ballots having a proper cross, not in the square prepared thereon in
printing, but after and to the right of the names of the candidates voted for.
of the candidates voted for. Accordingly specific objections to the various ballots marked as
exhibits and filed in the action have been sustained as follows:
In Nye county, Union Canyon precinct, relator's Exhibit No. 1; in Currant Creek precinct,
relator's Exhibit No. 3; Tybo precinct, respondent's Exhibit No. 4.
Lyon county, Wabuska precinct, relator's Exhibit No. 1; Dayton precinct, relator's Exhibits
Nos. 6, 8, 12, 15, and 16; respondent's Exhibits Nos. 8, 9, 10, 13, 14, and 16; Silver City
precinct, relator's Exhibit No. 1 and respondent's Exhibit No. 1; Mason Valley precinct,
relator's Exhibits Nos. 1, 2, 3, 4, 7, 8, 9, 10, and 11; respondent's Exhibits Nos. 1, 2, 3, 5, 7,
and 8; Sutro precinct, relator's Exhibits Nos. 1 and 2. In Plummer precinct, Lyon county,
objections to relator's Exhibit No. 1 are sustained, and objections to respondent's Exhibit No.
1 are also sustained.
Lincoln county, Delamar precinct, relator's Exhibits Nos. 2, 31, 33, and 34. In the same
precinct, relator's Exhibit No. 16 is a ballot objected to because the cross is immediately on
the line between the names of Sadler and Russell. Relator's Exhibit No. 9 is a ballot objected
to for the reason that the elector had voted for both the respondent and McCullough for
governor. The official returns show that the board of inspectors did not count either of these
ballots for the respondent, and it is therefore unnecessary to pass upon the same, or consider
them as a part of the final result. In the same precinct objections to respondent's Exhibit No. 1
were sustained. In Pioche precinct objections to relator's Exhibits Nos. 1, 3, and 4 are
sustained, and objections to respondent's Exhibits Nos. 1 and 2 are sustained. In this precinct
1 ballot was voted for both the respondent and relator, but the same was not counted in the
official returns. In Mesquite precinct objections to relator's Exhibit No. 1 are sustained. In
Hiko precinct objection to relator's Exhibit No. 2 is sustained. In Deer Lodge precinct
objection to respondent's Exhibit No. 1 is sustained. In Searchlight precinct objections to
relator's Exhibits Nos. 1 to 10, inclusive, are sustained. In Panaca precinct objections to
relator's Exhibit No. 1 are sustained.
Eureka county, Eureka precinct No. 1, objections to relator's Exhibits Nos.
Exhibits Nos. 2, 10, 12, 25, 35, 38, 41, and 49 are sustained. The count made by the court in
this precinct corresponds with the official returns, without considering the ballot voted for
both respondent and relator, to which objection was made by both parties. In Palisade
precinct, relator's Exhibit No. 2, a ballot voted for both McCullough and the respondent, was
not counted in the official returns, and is not counted by the court. In Ruby Hill precinct the
count made by the court shows a gain of 1 vote for the relator over the official returns. In
Beowawe precinct objections to relator's Exhibits Nos. 2 and 4 are sustained. The count of
this precinct made by the court shows that the respondent gains one vote, but, as it is evident
that relator's No. 2 was not counted by the board of inspectors, sustaining the objections
thereto in no manner changes the returns as officially made.
In Lander county, Austin precinct No. 1, relator's Exhibit No. 16, a ballot voted for the
respondent and rejected by the board of inspectors, is a good and valid ballot, and should
have been counted for the respondent. In the same precinct relator's No. 17 is also a ballot
voted for the respondent and rejected by the board of inspectors, but should have been
counted, and is by the court counted for him. By reason of the above errors, the respondent
gains 2 votes in this precinct. In Dean precinct, relator's Exhibit No. 3, voted for both Sadler
and Russell, was counted by the board for the respondent, but should have been rejected. In
Austin precinct No. 2, objections to relator's Exhibits Nos. 6, 8, and 11 are sustained. In the
same precinct objections to respondent's Exhibit No. 4 are sustained.
In White Pine county, Aurum precinct, objections to relator's Exhibit No. 1 are sustained.
In Osceola precinct objections to relator's Exhibit No. 1 are sustained. The official returns of
said precinct show that this exhibit was not counted by the board of inspectors, and sustaining
the objections thereto makes no change in the official returns. In Ely precinct of the same
county 140 electors cast their ballots. There were found in the returns of this precinct 3 blank
ballots marked Rejected by the officers, 2 of which have the strip containing the number on
the right-hand side. One of the 3 ballots voted for Russell was evidently and clearly rejected
by the board because the crosses were made to the left of the names of the candidates.
clearly rejected by the board because the crosses were made to the left of the names of the
candidates. Two ballots were also found among the returns marked Spoiled by the
inspectors. Four other ballots were found among the returns marked Rejected. One of these
last was offered by the relator, and objected to because the strip containing the number
remained on the right-hand side thereof. As this ballot was evidently cast without the strip
being detached, under the former rulings of this court the objection is not well taken, and the
ballot should be counted for the relator. In the same precinct objections to relator's Exhibits
Nos. 2, 3 and 4, which were of the rejected ballots cast for respondent, and for the same
reasons, should be counted for the respondent. Under these rulings the relator gains 1 vote,
and the respondent 3 votes, in this precinct. In Hamilton precinct of the same county,
objections to respondent's Exhibits Nos. 1 and 3 are sustained. The respondent loses 1 vote in
this precinct,as shown by the count made by the court. In Cherry Creek precinct of the same
county, objections to relator's Exhibits Nos. 1 and 3 are sustained. Objections to relator's
Exhibit No. 5, which is a ballot voted for the respondent and rejected by the board of
inspectors, are overruled, and this ballot counted for the respondent. Objections to relator's
Exhibit No. 8, which is a ballot voted for the respondent and rejected by the board of
inspectors, are overruled, and this ballot should be counted for the respondent. Objections to
relator's No. 9, another ballot rejected by the board of inspectors and voted for the respondent,
are overruled, and this ballot counted for the respondent. Objections to relator's Exhibit No. 8,
which is a ballot voted for the respondent and rejected by the board of inspectors, are
overruled, and this ballot counted for the respondent. By these rulings the respondent gains 3
votes in this precinct. In White River precinct of the same county, objections to relator's
Exhibit No. 1 are sustained.
In Elko county, Lamoille precinct, objections to relator's Exhibits Nos. 1, 6 and 11 are
sustained. In Ruby Valley precinct of the same county objections to respondent's Exhibit No.
3 are sustained. In North Fork precinct of the same county the count made by the court shows
a loss of 1 vote for the respondent. In Tuscarora precinct objections to relator's Exhibit No.
18, a ballot cast for the respondent and rejected by the board of inspectors, and overlooked by
the court in the former examination of the ballots, are overruled, and the ballot counted
for the respondent.
the court in the former examination of the ballots, are overruled, and the ballot counted for
the respondent. In the same precinct objections to respondent's Exhibits Nos. 21, 22 and 23,
which are ballots cast for the relator and rejected by the board of inspectors, objections to 2 of
which ballots were overlooked by the court in its former examination, are overruled, and
these ballots are counted for the relator. By these rulings the respondent gains 1 vote, and the
relator 3 votes, over the official count in this precinct. In North Ruby precinct of the same
county objections to relator's Exhibits Nos. 2 and 3 are sustained. In the same precinct
objections to respondent's Exhibit No. 5 are sustained. In Elko precinct respondent's
objections to Exhibit No. 17, a ballot cast for the relator and rejected by the board of
inspectors, are overruled, and the ballot counted for the relator. By this ruling the relator gains
1 vote over the official count in this precinct. In Halleck Station precinct of said county
objections to relators Exhibits Nos. 1, 4, 7, 9, 11, 12, 13, 14 and 15 are sustained. In the same
precinct the count by the court shows a gain of 1 vote in favor of the respondent over the
official returns. This difference may be accounted for from the fact that relator's No. 6 (a
Sadler ballot) was not counted by the board of inspectors, and is counted by the court. In
either event the respondent gains 1 vote in the count. In Wells precinct of said county
objections to respondent's Nos. 1 and 10 are sustained. In Toano precinct of said county
objections to respondents' Exhibits Nos. 1, 2, 3 and 5 are sustained. In Tecoma precinct of
said county objections to relator's Exhibits Nos. 1 to 4, inclusive, are sustained. In the same
precinct objections to respondent's Exhibits Nos. 1 to 6, inclusive, are sustained.
In Humboldt county, Lovelock precinct, objections to respondent's Exhibits Nos. 16 and
19 are sustained. In Kennedy precinct of the same county objections to relator's Exhibit No. 1
are sustained. Objections to relator's Exhibit No. 7, which is a ballot cast for the respondent
and rejected by the inspectors, are overruled, and this ballot counted for the respondent. By
this ruling the respondent gains 1 vote over the official count in this precinct. In Winnemucca
precinct of said county objections to relator's Exhibits Nos. 4 and 12 are sustained.
and 12 are sustained. In the same precinct objections to respondent's Exhibits Nos. 9, 12, and
16 are sustained. In Mill City precinct of said county objections to relator's Exhibit No. 1 are
sustained. In Unionville precinct of the same county objections to relator's Exhibit No. 1 are
sustained. In McDermitt precinct of the same county objections to relator's Exhibit No. 1, a
ballot cast for the respondent and rejected by the board of inspectors, are overruled, and this
ballot counted for the respondent. In Golconda precinct of the same county objections to
respondent's Exhibit No. 3 are sustained. In Sulphur Mine precinct of the same county
objections to respondent's Exhibit No. 1 are sustained.
In Churchill county, Stillwater precinct, objections to respondent's Exhibit No. 1 are
sustained. In New River precinct of the same county objections to respondent's Exhibit No. 2
are sustained.
In Esmeralda county, Hawthorne precinct, objections to relator's Exhibits Nos. 2 and 3 are
sustained. In the same precinct objections to respondent's Exhibit No. 3 are sustained. In Pine
Grove precinct of the same county objections to respondent's Exhibit No. 1 are sustained. In
Aurora precinct of the same county objections to respondent's Exhibit No. 1 are sustained. In
Douglas precinct of said county objections to relator's Exhibit No. 9 are sustained. In the
same precinct objections to respondent's Exhibit No. 1 are sustained. By sustaining the
objections to the last-named exhibit, the returns correspond with the official count, and it is
probable that this ballot was not counted by the inspectors for either candidate for governor.
In Candelaria precinct of the same county objections to relator's Exhibits Nos. 2 and 3 are
sustained.
In Douglas county, Genoa precinct, objections to relator's Exhibit No. 1 are sustained. In
the same precinct objections to respondent's Exhibits Nos. 1, 2, 3, 4, 5 and 6 are sustained. In
Mottsville precinct of the same county objections to relator's Exhibit No. 1 are sustained, and
objections to respondent's Exhibit No. 1 are sustained. In Cave Rock precinct of the same
county objections to respondent's Exhibit No. 2 are sustained. In East Fork or Gardnerville
precinct of the same county objections to relator's Exhibits Nos.
Nos. 3, 4, 5 and 6 are sustained, and in the same precinct objections to respondent's Exhibits
Nos. 1, 2 and 4 are sustained. In Jack's Valley precinct of the same county objections to
relator's Exhibit No. 1 are sustained, and the objections to respondent's Exhibit No. 1 are also
sustained.
In Ormsby county, First ward of Carson City, objections to relator's Exhibits Nos. 1, 2, 3,
6, 9 and 10 are sustained. In the same precinct objections to respondent's Exhibit No. 3 are
sustained. In the Second ward of Carson City objections to relators Exhibits Nos. 1, 3, 4, 5, 6,
7, 9, 11 and 12 are sustained. In the same ward objections to respondent's Exhibits Nos. 2, 3,
4, 5, 11 and 12 are sustained. In Empire precinct of the same county objections to relator's
Exhibits Nos. 1 and 2 are sustained.
In Washoe county, Wadsworth precinct, objections to respondent's Exhibits Nos. 2, 11, 12,
and 18 are sustained. In this precinct, also, the count made by the court shows a loss of 1 vote
by the respondent. In Huffaker's precinct of the same county, objections to respondent's
Exhibit No. 2 are sustained. In Verdi precinct of the same county, objections to relator's
Exhibit No. 2 are sustained. In the same precinct objections to respondent's Exhibit No. 1 are
sustained. In the First ward of Reno, of said county, objections to respondent's Exhibits Nos.
2 and 4 are sustained. In this ward the count made by the court shows a gain of 2 votes over
the official count for the relator. In the Third ward of Reno, same county, objections to
relator's Exhibits Nos. 2, 3, 4, and 6 are sustained. In the same ward objections to
respondent's Exhibits Nos. 8, 9, and 10 are sustained. In the Fourth ward of Reno objections
to respondent's Exhibits Nos. 5 and 9 are sustained. In the Fifth ward of Reno objections to
relator's Exhibit No. 2 are sustained. In the same ward objections to respondent's Exhibits
Nos. 3, 4, 5, and 9 are sustained. By the count made by the court the relator also loses 2 votes
in this ward.
In Storey county, First ward, Virginia City, objections to relator's Exhibits Nos. 1, 2, 3, 4,
5, 6, 10, 11, and 12 are sustained. In the same ward objections to respondent's Exhibits Nos.
1, 6, 10, 14, 15, 16, 18, and 19 are sustained. In the same ward relator's Exhibit No. 13, a
ballot voted for the respondent and rejected by the board of inspectors, should be counted
for the respondent.
respondent and rejected by the board of inspectors, should be counted for the respondent. In
the Second ward of Virginia City objections to relator's Exhibits Nos. 2, 3, 5, and 6 are
sustained. In the same ward objections to respondent's Exhibits Nos. 2, 3, 5, 7, 8, 9, and 10
are sustained. In this ward both the relator and the respondent gain 1 vote over the official
count. In the Third ward of Virginia City objections to the relator's Exhibit No. 6 are
sustained. In the same ward objections to respondent's Exhibits Nos. 1, 2, 7, 9, 10, 11, 12, 17,
19, and 23 are sustained. In the Fourth ward of Virginia City objections to relator's Exhibits
Nos. 1 and 2 are sustained. In the same ward objections to respondent's Exhibits Nos. 1, 4, 6,
7 and 8 are sustained. In Gold Hill precinct of the same county objections to relator's Exhibits
Nos. 1, 2, and 5 are sustained. In the same precinct objections to respondent's Exhibits Nos.
34, 55, 60, 63, and 64 are sustained.
The consideration of the objections made to the so-called red-line ballots cast in Gold Hill
precinct of this county presents in many respects a new questionone differing in important
points from any other question heretofore considered and determined by this court in any of
the cases arising under our Australian ballot or election law. The facts, briefly stated, are that
one H. J. Maguire was duly nominated by petition as an independent candidate for member of
the assembly from Storey county. The republican and silver parties had also nominated
candidates for the full representation of that county for the same office. The duly certified list
of candidates for office, including the name of Maguire, had been published in the newspaper
as required by law. The official ballots, printed upon the official ballot paper furnished by the
secretary of state, had been printed, upon which appeared the name of the said Maguire as an
independent candidate for member of the assembly. The sample ballots required by the act,
upon which also appeared the name of Maguire as an independent candidate for the assembly,
had also been duly printed and distributed as required by law. Every step required for the
information of the electors of Storey county had been properly taken by the officers
authorized to act.
After all these steps had been taken, and on the third or fourth day preceding the election,
the said Maguire presented the county clerk of that county with his resignation as a candidate
for the office to which he had been duly nominated, which resignation the clerk accepted. The
clerk then made requisition upon the secretary of state for additional ballot paper to print and
prepare the full allotment due that county as shown by the registration, without the name of
Maguire printed thereon. The secretary of state was not able to furnish him with a sufficient
quantity of such paper to print the full allotment of ballots for the county, but did supply him
with sufficient paper to print a number of ballots largely in excess of the number of votes cast
in the county. The clerk, acting in good faith, took a large number of the ballots already
printed, containing the name of Maguire, and drew red lines with ink through his name and,
together with the ballots last prepared without the name of Maguire printed thereon, and with
those with the name of Maguire through which the red lines had been drawn, supplied the
various election officers with the full allotment of ballots, but with instructions to the officers
not to give out to the electors any of the ballots bearing the red lines until after the others had
been exhausted.
In all precincts in Storey county, excepting Gold Hill, no ballots were cast bearing the red
lines. In Gold Hill precinct the greater number of the ballots cast were those last prepared,
without the name of Maguire, and without the red lines. The election officers of Gold Hill
precinct returned nearly 200 ballots of the last prepared as not having been voted, and still in
book form. About 55 of ballots bearing the red line through the name of the said Maguire
were cast and counted in Gold Hill precinct for the relator, to which respondent has made
objections.
The chief purpose and object of the enactment of our Australian ballot law were to prevent
fraud and corruption at the elections. As the most potent means for this purpose, it requires
that the ballots shall be printed upon the same kind of paper for the various counties and
precincts of the state, to be furnished by officers authorized in the matter by the law. Not only
is uniformity in paper required, but uniformity in printing is regarded as essential to secure
the secrecy of the ballot, through which fraud and corruption are to be prevented.
formity in printing is regarded as essential to secure the secrecy of the ballot, through which
fraud and corruption are to be prevented. In keeping with these requirements of the law, the
legislature required that the elector should use the cross, or a uniform system of marking his
ballot, as indicating his choice or preference of candidates, in a booth constructed so as to
shield him from the observance of persons other than the election officers.
In other words, the legislature sought, by a uniform system of voting, including a uniform
kind or character of ballots, and the printing of the same, and the markings made, to render
the ballots cast absolutely secret. Therefore uniformity in kind or character of paper used for
ballots throughout the state, uniformity in printing ballots for the various precincts throughout
the state, and uniformity in the character of markings, as nearly as practicable, by all electors,
are the very foundation and basis of our election law. No provision is made whatever, in
direct terms, for the resignation of a candidate nominated for a public office. If such right
exists, it arises solely by implication, under a strained construction of the latter clauses of
section 7 of the Australian ballot law, as found in Stats. 1893, p. 113. If the clause of that
provision by implication authorizes the resignation of a candidate for office, by the same rule
of construction must it be said that the resignation must be sent to the convention making the
nomination, or a committee appointed by such convention, with delegated authority to fill
vacancies, or the petitioners nominating such candidate.
Whatever view may be taken of this provision of the law, it is evident that the officer is
authorized to print or write only the name of the person substituted to fill the vacancy caused
by such resignation. In no event is he authorized, directly or indirectly, to make other changes
upon the face of the printed ballot. When we stop to consider itchanges necessary to be
made upon the tickets of the entire state, caused by a resignation of a candidate for a state
officethe impracticability of this provision of the law is clearly made apparent. But, be the
operation and effect of this provision of the law what it may, it is clear that any attempted
changes in the face of the ballot as printed, whereby more than one kind of official ballot is
prepared and distributed to a precinct of the county, is clearly in conflict with the spirit
and letter of the law requiring uniformity in the ballots.
kind of official ballot is prepared and distributed to a precinct of the county, is clearly in
conflict with the spirit and letter of the law requiring uniformity in the ballots. Any other
construction placed upon the law would, in case of numerous resignations made immediately
preceding the day of election, confer authority upon the officer to erase from a part of the
printed ballots of any precinct the names of different candidates for various offices, with
different colored inks or pencils, and thus render it possible to have cast in such precinct
different official ballots, distinguishable upon their faces, and only dependent as to number
upon the excess of the quantity of official ballot paper which may remain in the hands of the
secretary of state after making the proper allotment to the various counties.
If two kinds of ballots can be used in the same precinct, then, under like conditions, many
different kinds and forms can likewise be used, and the basis of the law thereby destroyed,
leaving its provisions a dead letter upon the books. That this uniformity in ballots might be
effectual, and the voter also protected in his constitutional right, and to meet the contingency
arising from the facts in this case, the legislature has made ample provision. It is provided by
section 16 of the act that: In case of prevention of an election in any precinct by reason of the
loss or destruction of the ballots intended for that precinct, or for any other cause, the
inspector or other election officer for the precinct shall make an affidavit setting forth the fact
and transmit it to the governor of the state. Upon receipt of such affidavit and upon the
application of any candidate for any office to be voted for by the voters of such precinct, the
governor shall order a new election in such precinct. (Laws, 1891, p. 43.)
It will be thus seen that had the secretary of state no ballot paper whatever, and had the
resignation of Maguire been proper, and had it been necessary to prepare and print ballots
upon official ballot paper, and in the form required for Gold Hill precinct, the voters of that
precinct, upon the showing required, could have had an opportunity of expressing their choice
for any and all candidates for office at a different time and in due form of law. We must
therefore conclude that, rather than destroy the spirit of the lawrather than destroy its
substancewhere ample provision is made for the protection of the elector in his rights
and for the protection of the candidates in their rights, these ballots bearing the red lines
must be excluded.
destroy its substancewhere ample provision is made for the protection of the elector in his
rights and for the protection of the candidates in their rights, these ballots bearing the red
lines must be excluded. It is claimed that this question has been practically settled the other
way by the decision of this court in Sweeney v. Hjul, supra, and in passing upon the demurrer
of the relator to that part of respondent's answer in this action involving the validity of the
ballots cast in Reno precinct.
This claim is not tenable. All the ballots in Eureka county passed upon in Sweeney v. Hjul,
and all the ballots voted in Reno precinct and passed upon by the court in this action, were
uniformhad printed thereon the names of all the candidates. In this action the ballots under
consideration have been cast in the same precinct, with the name of Maguire printed thereon,
with red lines drawn through the same, and other ballots have been cast in the same precinct,
as official, without the name of Maguire printed thereon, and without the red lines thereon. In
other language, the ballots cast in Eureka county and in Reno precinct were uniform, and in
strict accordance with the spirit and letter of the law.
In Bullion precinct, in Lander county (overlooked in its proper place in the preparation of
the opinion), the relator gains 1 vote over the official count. In East Fork or Gardnerville
precinct of Douglas county the relator gains 1 vote over the official count
We believe it proper to suggest that certain amendments to the law as it exists will obviate
many, if not all, of the objections made to the validity of the ballots. It is impossible, under
the present system of marking with a pencil, to obtain uniformity in form of markings. This
difficulty can be overcome by requiring, as in other states, that the markings shall be made
with a rubber stamp. Many objections were also made to ballots because of writing thereon
made by election officials. This should be strictly prohibited by the law, except in case of
rejected ballots, and in those cases the inspectors should be required to certify over their
names, upon the back of the ballot, that it was rejected by them in the count, briefly stating
their reasons therefor. We also suggest that the law be so amended as to require, in direct and
specific terms, the place or position where the elector shall make his cross as indicating
his choice of candidates.
and specific terms, the place or position where the elector shall make his cross as indicating
his choice of candidates. With these amendments, the law which has been so beneficial in its
results, and accomplished so much for the purification of our elections, would be nearly
perfect, and nearly if not quite all vexatious litigation which has grown up by reason of these
defects avoided.
It is gratifying to be able to state that in this protracted proceeding, in which the respective
counsel spared neither time nor energy in their efforts to present to the court such facts, if
existing, as would impeach the integrity of the votes cast for the opposing candidate in the
several counties, no evidence was found to cast a suspicion upon the good faith or integrity of
any candidate, officer, or elector. It clearly appears that said election was entirely free from
bribery, intimidation, and coercion, which it is said prevail at elections in other states. The
illegal markings found upon ballots which necessitated their rejection in this case resulted
from the carelessness of voters, and the lack of paying attention to the simple mandatory
provisions of the statute.
Finally, the court finds from the evidence that Reinhold Sadler, the respondent, received at
said election for the office of governor of the State of Nevada 3,446 legal votes, and no more;
that William McMillan, the relator, received at said election for the said office 3,383 legal
votes, and no more; and, as conclusions of law, the court finds that said Reinhold Sadler was
duly elected to said office for the term of four years from the first Monday in January, A. D.
1899, and is now entitled thereto, and that he is entitled to a judgment to that effect, and
judgment against said William McMillan, the relator, for his costs expended in this
preceding.
Judgment is ordered to be entered accordingly.
on motion to strike out and retax costs.
Per Curiam:
The relator asks the court to strike out of the judgment rendered and entered in this cause
on September 20, 1899, the item of $744.25 costs, upon the ground that no memorandum or
bill of costs was filed or served within the time required by law or by the rules of the court,
also, to strike from the so-called cost bill certain items for typewriting briefs, testimony,
and transcribing same, for the reason that there was no law, agreement, or stipulation
authorizing the taxing of said items as costs or disbursements.
strike from the so-called cost bill certain items for typewriting briefs, testimony, and
transcribing same, for the reason that there was no law, agreement, or stipulation authorizing
the taxing of said items as costs or disbursements.
The cause was argued and submitted to the court on the 25th day of July, 1899. Both the
relator and respondent filed their respective cost bills on that day. It is provided by rule 6 of
this court that the expense of printing or typewriting pleadings, affidavits, briefs, or other
papers constituting the record in original proceedings upon which the case is heard in this
court, required by the rules to be printed or typewritten, shall be allowed as costs, and taxed
in bills of costs in the usual mode; provided, that no greater amount than 25 cents per folio of
100 words shall be taxed as costs for printing, and no greater amount than 12 1/2 cents per
folio for one copy only shall be taxed as costs for typewriting; all other costs to be taxed by
the clerk in accordance with the fee bill.
By the succeeding clause of the same rule it is required that either party desiring to recover
as costs his expenses for printing or typewriting in any cause in this court shall, before said
cause is submitted, file with the clerk, and serve upon the opposite party, a verified cost bill,
setting forth the actual cost of such printing or typewriting, and no greater amount than such
actual cost shall be taxed. By the third provision of the same rule it is required that, if either
party desires to object to the costs claimed by the other party, he shall, within ten days after
the service upon him of a copy of the cost bill, file with the clerk, and serve, his objections.
Said objections shall be heard and settled, and the costs taxed, by the clerk. An appeal may be
taken from the decision of the clerk, either by written notice of five days, or orally and
instanter, to the justices of this court, and the decision of such justices shall be final. If there
be no objection to the costs claimed by the party entitled thereto, they shall be taxed as
claimed in his cost bill.
The above are the only rules of this court regulating the matter raised by the relator's
motion. There is nowhere, within the rules or within the statutes, provision requiring
pleadings, affidavits, briefs, or other papers constituting the record in original
proceedings in this court to be printed or typewritten.
within the rules or within the statutes, provision requiring pleadings, affidavits, briefs, or
other papers constituting the record in original proceedings in this court to be printed or
typewritten. Such being the case, the expense of typewriting or printing such papers is not
necessary costs or expenses, within the meaning of subdivision 1 of rule 6, above cited.
Therefore all costs for typewriting charged in respondent's cost bill, and made a part of his
judgment, will be stricken out, and the judgment to that extent modified.
As to that part of the relator's motion asking that the entire cost bill and costs as carried
into the judgment be stricken out, it is sufficient to say that the objection comes too late,
under the last clause of subdivision 3 of rule 6, above cited. It is clearly apparent from the last
clause of subdivision 3 that objections, to be available, against costs claimed by a party, must
be made within ten days after the filing and service of the cost bill. The opinion in this court
was filed on the 20th day of September, 1899. The objections of the relator to the cost bill
and the judgment for costs were not filed and served until the 5th day of October, 1899.
Objection is also made by relator to the items of expressage paid on account of the
transportation of the ballots from the various counties, to be used as evidence upon the trial of
said cause.
We are of the opinion that it was a physical impossibility for the clerks of the respective
counties to have safely, and, in some instances, in any manner, produced their ballots in court,
in answer to the process of the court, otherwise than by expressing them. Such costs were
actually necessary in obedience to the process of the court, and were necessarily incurred by
the party.
The objection, therefore, not having been made within the time prescribed by the rules,
such costs must be taxed as claimed.
For the same reason the other items to which objections are made must be allowed to
stand.
It is therefore ordered that the judgment of the court heretofore entered in this action for
costs be modified by reducing the same $90.
on petition for rehearing on motion to strike out and
retax costs.
Per Curiam:
We have carefully reconsidered the question presented on the motion to retax costs, as
suggested in the order reopening the matter, but have been unable to reach a different
conclusion. Concede that the cost bills were filed prematurely; it does not necessarily follow,
under the facts of the record, that, after the costs have entered into and become a part of the
judgment, the judgment should be modified by striking the same therefrom.
Rule 6 of this court is, we believe, broader in its scope than claimed by the counsel for the
relator. The language used is broader. It not only covers matters of procedure relating to costs
of printing and typewriting transcripts on appeal, and papers in original proceedings, but also
the taxation of all other costs.
In subdivision 3, general language is used, requiring objections to costs claimed to be
made within a specified time.
A similar requirement has been incorporated into the rules of the district court, upon the
theory, no doubt, to supply what seems to be an omission in the statute. We do not believe
that we are required by the rules or the statute, under the facts, to modify the judgment
because of irregularity of proceeding, claiming costs which were properly taxable within the
meaning of the word, where the party asking the modification is proceeding in an irregular
manner. As to those items which could not have been taxed in a regular proceeding, our
opinion remains the same. They should be stricken out.
Therefore the items for typewriting, amounting in the aggregate to $131.50, will be
stricken out, and the judgment to that extent modified.
____________
25 Nev. 197, 197 (1899)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
OCTOBER TERM, 1899
____________
25 Nev. 197, 197 (1899) Sweeney v. Karsky
[No. 1563.]
W. H. SWEENEY, Respondent, v. M. KARSKY, et al.,
Appellants.
Civil PracticeElection Contests. New trial and appeals in contested election cases, are regulated by the civil
practice act.
IdemIdemUndertaking. The stay of execution of judgment in contested election cases, not being
specifically provided for, comes under Gen. Stats. 3367, the last clause of which provides that in all cases
not mentioned the amount of the undertaking on appeal to stay execution of the judgment or order shall
be fixed by the court; and an undertaking in an election contest reciting that, in so far as it relates to
possession of said office, the sureties named therein undertake and acknowledge themselves bound unto
the contestor a certain sum (being the amount fixed by the judge), conditioned that, if said judgment be
affirmed or the appeal dismissed, said contestee will pay the value of the use of said office from the time
of the appeal until the delivery of possession to the contestor, not exceeding the said sum, and that the
judgment was rendered in January, 1897, declaring that the contestor was duly elected to office on
November 3, 1897, is sufficient.
UndertakingClerical Error. The recital of said undertaking to the effect that the judgment of the district court
was rendered in January, 1897, adjudging that contestor was duly elected to office on November 3, 1897,
does not render it void, as the law fixing the time for holding the election, the recitals in the record, and
the undertaking conclusively show that the date of the election stated was a mere clerical error.
Construction of Obvious Errors. It is a general rule of construction that certain obvious forms of mistaken
expression, such as clerical, verbal or grammatical errors, can be set right without any special remedies, by
ordinary rules of construction.
Appeal from the Third Judicial District Court, Eureka County; A. L. Fitzgerald, Judge.
Action by W. H. Sweeney against M. Karsky and others on an undertaking on appeal to
stay execution of a judgment rendered in an election contest. From a judgment for plaintiff
and an order denying a motion for new trial, defendants appeal. Affirmed.
Wren & Julien, for Appellants:
I. This is an action on an undertaking on appeal. The sureties can only be held to be liable
for what they have undertaken to be liable for, if they are liable at all; in the third subdivision
of the undertaking the sureties undertake to pay the value of the use and possession of said
office from the time of the appeal until the delivery of the possession, should delivery be
finally adjudged. The inquiry, therefore, in an action against the sureties must be limited to
the ascertainment of the value and use of the occupation of the office for the time specified,
provided the bond is not invalid either in whole or in part. The third subdivision of the
undertaking is without authority of law and is therefore invalid. (Gen. Stats. 1567,
3364-3369; Central Lumber & M. Co. v. Center, 107 Cal. 193, and authorities therein cited.)
II. The complaint alleges that a judgment was rendered in favor of Sweeney v. Hjul,
adjudging that Sweeney was elected sheriff of Eureka county at the election held on the 3d
day of November, 1896. The undertaking recites that a judgment was rendered in 1897,
adjudging that Sweeney was elected sheriff of Eureka county on the 3d day of November,
1897. For this reason the entire bond is invalid. Counsel for respondent has cited a long list of
authorities really having no bearing on this case. The authorities are upon points not
contested. If this suit was against Hjul instead of against the sureties upon the undertaking
one of the authorities cited by the gentleman is directly in point against his contention, viz.:
contention, viz.: 5 Am. & Eng. Ency. of Law, p. 111, text and foot-notes to that page. It will
be seen by a reference to foot-note 1, that there is a great array of authorities cited in support
of the test, but, as the action is against the sureties of Hjul upon the appeal bond, we must
look to the bond itself to ascertain their liability.
R. M. Clarke and Peter Breen, for Respondent:
I. The undertaking upon which this action was brought was given, among other things, for
the purpose of staying the execution of a judgment, and so operated. It excluded the plaintiff
from the exercise of the functions of the office of sheriff and deprived him of the salary, fees
and emoluments of the office pending the appeal, from the 15th day of February to and
including the 26th day of June, 1897. During this appeal, Hjul, against whom this judgment
was rendered, continued to act as sheriff and received and appropriated to his own use the
salary, fees and emoluments of the office; and the plaintiff, who was sheriff by the judgment
of the court, was excluded from the office, and did not have the salary, fees and emoluments
belonging thereto. The bond sued upon is in the penal sum of $1,000, and plaintiff's demand
was for the sum of $741.70. He received judgment for the sum of $____. It will not be
questioned that Hjul was simply an officer de facto during all of the time embraced in the
action, and as such was entitled to no salary or compensation for his services; such has been
the settled rule in this state from an early period. (Meagher v. County of Storey, 5 Nev. 244,
251.)
II. The salary and emoluments annexed to a public office in a municipality are incident to
the title to the office and not to its exercise or occupation. A party entitled to the office is
therefore held to be entitled to such salary and emoluments, although he has never actually
discharged the duties of the office. (5 Am. & Eng. Ency. Law, 109; People v. Tierman, 8
Abb. Pr. (N. Y.) 359; People v. Hopson, 1 Denis, 578; Dolan v. Mayor, 80 N. Y. 192;
Memphis v. Woodward, 12 Heisk. (Tenn.) 499; People v. Smith, 28 Cal. 21; Carroll v.
Liebenthaler, 37 Cal. 195; Glascock v. Lyons, 20 Ind. 3; Comstock v. Grand Rapids, 40
Mich. 399; Stadler v. Detroit, 13 Mich.
13 Mich. 347; Philadelphia v. Given, 60 Pa. St. 136; Beard v. City of Decatur (Tex.), 7 Am.
7 Eng. Corp. Cas. 145).
III. And when an officer duly elected is kept out of office by one to whom the returning
board has given a certificate of election, he is not at fault for not qualifying before he has
obtained judgment of ouster, as such an attempt might be nugatory. He is therefore entitled to
recover damages for the whole official term, from the beginning until he obtains possession
of the office. He is entitled to recover for that period the entire official salary, without any
deduction for the services of the incumbent or for what he may have earned himself while
ousted. (People v. Miller, 24 Mich. 458; Burk v. Eagar, 67 Cal. 182-184.)
IV. The undertaking in question subserved all of the purposes for which it was given. It
was admitted that the plaintiff had been finally adjudged by the district and supreme courts to
be the sheriff of said Eureka county, and that the undertaking on appeal to the supreme court
had been given by the defendants Karsky and McCormack on appeal from the district court
awarding the office to plaintiff and ousting said Hjul therefrom, and that under the
undertaking on appeal the said Hjul had continued to hold the said office of sheriff of Eureka
county pending the appeal, and to receive, have and keep the salary and emoluments thereof
from the 15th day of February, 1897, until and including the 28th day of June, 1897.
V. The mistake of the date on the bond was a mere clerical error. The bond was given to
stay the execution of the judgment. It kept the plaintiff out and it kept Hjul in. It enabled Hjul
to get the salary and deprived Sweeney of it.
The respondent instituted a proceeding to contest the election of one P. J. Hjul to the office
of sheriff of Eureka county. The trial of this proceeding resulted in a judgment in favor of the
said Sweeney. Hjul appealed therefrom to the supreme court, and, for the purpose of securing
a stay of execution of the judgment, procured the appellants herein to execute an undertaking
on appeal. The third recital in the undertaking was to the effect that, as the said Hjul was
desirous of staying the execution of the judgment in so far as it relates to the possession
of said office and his incumbency therein, the appellants undertook and acknowledged
themselves jointly and severally bound unto the respondent in the sum of $1,000 {being
the amount for that purpose fixed by the district judge), conditioned that if the said
judgment appealed from be affirmed, or the appeal dismissed, that the said Hjul would
pay the value of the use and possession of said office from the time of the appeal until the
delivery of the possession of the same to the respondent, not exceeding the said sum of
$1,000.
desirous of staying the execution of the judgment in so far as it relates to the possession of
said office and his incumbency therein, the appellants undertook and acknowledged
themselves jointly and severally bound unto the respondent in the sum of $1,000 (being the
amount for that purpose fixed by the district judge), conditioned that if the said judgment
appealed from be affirmed, or the appeal dismissed, that the said Hjul would pay the value of
the use and possession of said office from the time of the appeal until the delivery of the
possession of the same to the respondent, not exceeding the said sum of $1,000.
It was also recited in the undertaking that the judgment of the district court was rendered
on the ____ day of January, 1897, declaring and adjudging that the respondent was duly
elected sheriff of Eureka county on the 3d day of November, 1897. The judgment of the
district court having been affirmed by the supreme court, this action was commenced upon
the undertaking to recover the fees and emoluments according to the conditions thereof. From
a judgment in favor of the respondent, and the order denying appellants' motion for a new
trial, this appeal has been taken.
Only two questions are argued by the counsel for appellants:
1. It is claimed that the undertaking is not authorized by law, and is therefore void. It has
been held by this court that new trials and appeals in contested election cases are regulated by
the civil practice act. (Lynip v. Buckner, 22 Nev. 426, 41 Pac. 762.) This act makes provision
for the stay of execution of judgments on appeal, and the manner of giving and the form of
the undertaking on appeal for such purpose are in many instances specifically set out. (Gen.
Stats. 3364-3369.) It is provided in the last clause of section 3367 that, in all cases not
mentioned, the amount of the undertaking to stay the execution of the judgment or order shall
be fixed by court or the judge thereof. The stay of execution of judgment in contested election
cases, not being specifically provided for, comes under this clause, and the recitals of the
undertaking sufficiently show that all required steps were taken to render it a valid contract
under the law.
2. It is further claimed that the recital of the undertaking to the effect that the judgment
was rendered in January, 1897, adjudging that the respondent was duly elected sheriff of
Eureka county on the 3d day of November, 1897, renders it void. The law fixing the time for
holding the election, the recitals in the record, and the recitals of the undertaking conclusively
show that the date of the election named is a mere clerical error. It is a general rule of
construction that certain obvious forms of mistaken expression, such as clerical, verbal, or
grammatical errors, can be set right without any special remedies, by ordinary rules of
construction.
It has been well said, in discussing a question similar to the one at bar, involving the
validity of a recognizance: It is a patent clerical error, which consisted in writing 1882'
instead of 1883.' The whole record by which the matter is to be tried shows this. We know
judicially that the next regular term of the Newton circuit court, after the recognizance was
taken, was required by law to be held on the second Monday in February, 1883. The record
shows that it was in fact so held. The parties entering into this recognizance cannot be
supposed to have meant an absurdity. They meant to do what the law permitted them to do in
such a caseto enter into an obligation of record conditioned that the accused should appear
at the next regular court of the county. * * * All modern courts appear to have united upon a
rule, in cases at law as well as in cases in equity, that obvious clerical mistakes on the face of
a written contract may be corrected with reference to the manifest intent of the parties as
gathered from the whole instrument. (State v. McElhaney, 20 Mo. App. 587; Wald's Pol.
Cont. 453.)
For these reasons the judgment and order appealed from will be affirmed.
____________
25 Nev. 203, 203 (1899) Price v. Ward
[No. 1561.]
ALBERT F. PRICE, as Administrator of the Estate of WM. E. PRICE, Deceased, Appellant,
v. M. E. WARD, Respondent.
Waste. Waste is permanent or lasting injury, done, or permitted to be done, by the holder of a particular estate
to the inheritance, to the prejudice of any one who has an interest in the inheritance.
Trespass. Trespass is an injury to the estate, or the use thereof, by one who is a stranger to the title.
Estates of Deceased PersonsAdministratorsJurisdictionWasteTrespassLand in Foreign State. An
administrator who takes land as assets by express provisions of law has no such right, title or interest in
and to the lands of his intestate in another state as will authorize him to sue to redeem from a mortgage
thereon by setting off against the mortgage debt waste committed by the mortgagee in possession after the
death of the intestate, or to recover damages for waste or trespass on such lands. (Bonnifield, C. J.,
dissents.)
Appeal from the second Judicial District Court, Washoe County; B. F. Curler, Judge.
Action by Albert F. Price, as Administrator of the Estate of William E. Price, Deceased,
against M. E. Ward. From an order sustaining a demurrer to the complaint, and the judgment
rendered thereon, plaintiff appeals. Affirmed.
Torreyson & Summerfield and F. H. Norcross, for Appellant:
Defendant is a mortgagee in possession, and being a mortgagee in possession he must
account for all waste or destruction committed by him while in possession. (Givens v.
McCalmont, 4 Watts, 460; Daniel v. Coker, 70 Ala. 260; Guthrie v. Kahle, 46 Pa. 333;
Onderdonk v. Gray, 19 N. J. Eq. 65.)
The mortgagor cannot maintain ejectment against a mortgagee in possession. (Wilson v.
Ring, 40 Me. 116; Conner v. Whitmore, 52 Me. 185; Wells v. Rice, 34 Ark. 346; Pace v.
Chadderdon, 4 Minn. 499, Gil. 390; Sahler v. Signer, 44 Barb. 614; Hennesy v. Farrell, 20
Wis. 42.)
A mortgagee has no right or authority to take possession of the mortgaged premises, and
hold the same for the satisfaction of his debt, without the consent of the mortgagor. (Witherell
v. Wiberg, 4 Sawy. 232, Fed. Cas. No. 17, 917; Brinkham v. Jones, 44 Wis. 512.) Legal
estates in land cannot be transferred by the mere act of taking possession.
25 Nev. 203, 204 (1899) Price v. Ward
cannot be transferred by the mere act of taking possession. (Trimm v. Marsh, 54 N. Y. 599,
13 Am. Rep. 623.)
No matter what the form of the deed or conveyance, if it be given and intended as a
security for a debt due, or for money loaned, it shall be a mortgage, with all its attributes, and
nothing more. (Brinkham v. Jones, 44 Wis. 512, 2 Jones, Mortg. 114, 1120-1123; Cookes v.
Culbertson, 9 Nev. 199.)
A judgment or decree may indirectly affect the title to lands situate in another state. (2
Freeman, Judgm., sec. 564, p. 975, notes 1, 2, sec. 572, p. 988, notes 4, 5; Newton v.
Bronson, 13 N. Y. 587, 67 Am. Dec. 89, and note; Watkins v. Holman, 16 Pet. 25, 10 L. ed.
873.)
While courts of one state have no jurisdiction to determine a naked question of title to
lands in another state, they probably are competent to enforce a trust, irrespective of the
location of the land, and to decree a conveyance, though in so doing they may be compelled
to determine the question of title. (2 Freeman on Judgm., sec. 572, p. 988, note 5; MacGregor
v. MacGregor, 9 Iowa, 65; Massie v. Watts, 6 Cranch, 148, 3 L. ed. 181; Burnley, v.
Stevenson, 24 Ohio St. 474, 15 Am. Rep. 621; Watkins v. Holman, 16 Pet. 26, 10 L. ed. 874.)
A court having jurisdiction of the person of the defendant will, by its process of injunction
and attachment, compel him to do justice by the execution of such conveyances and
assurances as will affect the title of the property in the jurisdiction within which it is situated.
(Newton v. Bronson, 13 N. Y. 587, 67 Am. Dec. 91; Muller v. Dows, 94 U. S. 444, 24 L. ed.
207; Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192; Morris v. Hand, 70 Tex. 483, 8 S.
W. 210; Watts v. Waddle, 6 Pet. 400, 8 L. ed. 442; Watkins v. Holman, 16 Pet. 25, 10 L. ed.
873; Penn v. Lord Baltimore, 1 Ves. Sr. 444; Davis v. Headley, 22 N. J. Eq. 120; Snook v.
Snetzer, 25 Ohio St. 520.)
Without regard to the situation of the subject matter, courts consider the equities between
the parties, and decree in personam according to those equities, and enforce obedience to
their decrees by process in personam. (Phelps v. McDonald, 99 U. S. 298-308, 25 L. ed.
473-476; McGee v. Sweeney, 84 Cal. 100, 23 Pac. 1117; Wood v. Warner, 15 N. J. Eq. 81;
Bailey v. Ryder, 10 N. Y. 363; Mitchell v. Bunch, 2 Paige, 606, 22 Am. Dec. 669.)
25 Nev. 203, 205 (1899) Price v. Ward
The fact that the land is situated in the State of California is immaterial to the jurisdiction.
(Newton v. Bronson, 13 N. Y. 587, 67 Am. Dec. 90; Gardner v. Ogden, 22 N. Y. 327, 78
Am. Dec. 192.)
A bill to redeem is the proper proceeding. (Seaver v. Durant, 39 Vt. 103; Dailey v. Abbott,
40 Ark. 275; Spect v. Spect, 88 Cal. 442, 13 L. R. A. 137, 26 Pac. 203; Freeman v. Campbell,
109 Cal. 360, 42 Pac. 35; Malone v. Roy, 107 Cal. 518, 40 Pac. 1040; Ahern v. McCarthy,
107 Cal. 384, 40 Pac. 482; Pom. Eq. Jur., 2d ed., sec. 1196; De Cazara v. Orena, 80 Cal. 132,
22 Pac. 74; Posten v. Miller, 60 Wis. 494, 19 N. W. 540; Hubbell v. Moulson, 53 N. Y. 225,
13 Am. Rep. 519; Farris v. Houston, 78 Ala. 250.)
If it is intended to claim for waste of the mortgagee in possession, it must be charged in the
bill; otherwise there can be no issue in regard to it. (Gordon v. Hobart, 2 Story, 260, Fed.
Cas. No. 5, 608; 3 Daniel, Ch. Pl. & Pr. pp. 1919-1921.)
The administrator, being entitled under the statute to the possession of the lands of his
intestate, has such an interest as entitles him to redeem or to compel a release of a satisfied
mortgage. (In re Smith, 4 Nev. 254, 97 Am. Dec. 531; Stats. 1897, pp. 144-145, secs.
164-167; 2 Jones, Mortg. 1099; Enos v. Sutherland, 11 Mich. 541; Merriam v. Barton, 14 Vt.
501.)
It is the duty of the administrator to pay off the debts out of the personal estate, if
sufficient for that purpose, and prepare the estate for distribution among the heirs. To
discharge this duty he must of necessity be permitted to maintain a bill of this description, as
the only means of ascertaining what may be due, if anything, on the mortgage. (Cunningham
v. Ashley, 45 Cal. 493; Jordan v. Pollock, 14 Ga. 145; Meeks v. Vassault, 3 Sawy. 206, Fed.
Cas. No. 9393; Curtis v. Herrick, 14 Cal. 119, 73 Am. Dec. 632; Story Eq. Pl. 163, and note;
Telfair v. Stead, 2 Cranch, 407, 418, 2 L. ed. 320, 324; In re Smith, 4 Nev. 254, 97 Am. Dec.
531.)
Certainly, Price in his lifetime would have had the right to bring the action, and under
section 165, Stats. 1897, administrators have the right to maintain all actions which might
have been maintained by or against their respective testators or intestates in their lifetime.
25 Nev. 203, 206 (1899) Price v. Ward
testators or intestates in their lifetime. (Page v. Tucker, 54 Cal. 121; Miller v. Hoberg, 22
Minn. 249.)
A mortgagee in possession is bound to account for all rents, issues and profits received by
him, and for all waste and destruction of the premises, and he must deduct the allowance for
these matters from the amount due on his mortgage. But such allowance can only be claimed
either on bill to foreclose or bill to redeem against a mortgagee in possession, and in
possession as mortgagee. (Onderdonk v. Gray, 19 N. J. Eq. 65; McCormick v. Digby, 8
Blackf. 99; Youle v. Richards, 1 N. J. Eq. 538, 23 Am. Dec. 722.)
A. E. Cheney and E. D. Vanderlieth, for Respondent:
The entry of respondent upon these premises was both willfully and knowingly made, and
without the consent of any one.
The trespass and waste being willful and without the consent of Price, the defendant stands
in the same relation thereto as a stranger. An action at law where the trespass was committed
will afford ample relief for the real parties in interest.
There is no legal reason in those jurisdictions where a mortgage is considered as a mere
security, and not a conveyance, why the mortgagor may not maintain an action at law to
recover the damages for injury to the freehold. (Cline v. Robbins, 112 Cal. 585, 44 Pac.
1023.)
Not being entitled to administer upon this property, having no right by virtue of his
appointment in this state to hold the possession or distribute this estate, the appellant is a
stranger to the title to this California property, and has no right to redeem it, and, having no
right to redeem, he is without any basis for claiming an equitable accounting.
As each administrator represents a different sovereignty, and has jurisdiction of different
estates, and is not a party to actions brought against the representative of his intestate in
another state, there is no privity between them, and a judgment for or against the defendant in
this state will not be a bar to a like action by any administrator who may be appointed of this
estate in California. There is no mutuality, which is a requisite of all estoppels. (1 Woerner,
American Law of Administration, 15S; S Am.
25 Nev. 203, 207 (1899) Price v. Ward
Law of Administration, 158; 8 Am. & Eng. Ency. Law, 1st ed., p. 427; Stacy v. Thrasher, 6
How. 44, 12 L. ed. 337; Taylor v. Barron, 35 N. H. 496; Creswell v. Slack, 68 Iowa, 113, 26
N. W. 42; Deery v. Cray, 5 Wall. 803, 18 L. ed. 655; 2 Pom. Eq. Jur. 813; 2 Black, Judgm.
563; 1 Freeman, Judgm. 163; State v. Fulton (Tenn. Ch. App.) 49 S. W. 297; Johnson v.
Powers, 139 U. S. 156, 35 L. ed. 112, 11 Sup. Ct. Rep. 525; Braithwaite v. Harvey, 14 Mont.
208, 27 L. R. A. and exhaustive note, 101, 36 Pac. 39; McGarvey v. Darnell, 134 Ill. 367, 10
L. R. A. 861, 25 N. E. 1005.)
Each state controls the terms and conditions upon which land within its domain may be
held, alienated, and inherited, and its tribunal alone has power to adjudicate its devolution. (1
Woerner, American Law of Administration, 157, 158, 168; United States v. Crosby, 7
Cranch, 115, 3 L. ed. 287; McCormick v. Sullivant, 10 Wheat. 202, 6 L. ed. 303; Sneed v.
Ewing, 5 J. J. Marsh, 460, 22 Am. Dec. 47; Cal. Code Civ. Proc. 1913; 1 Story, Confl. L.
426-428.)
There is no presumption that the statutory law of another state is the same as it is in this
state. (Murphy v. Collins, 121 Mass. 6; Ellis v. Maxson, 19 Mich. 186, 2 Am. Rep. 81;
McDonald v. Mallory, 77 N. Y. 550, 33 Am. Rep. 664; Hull v. Augustine, 23 Wis. 383;
Johnson v. Chambers, 12 Ind. 102; McPike v. McPike, 111 Mo. 216, 20 S. W. 12; Lawson,
Presumptive Evidence, rule 82, p. 370; 1 Greenl. Ev., 15th ed., sec. 43, note c.)
The authority of the appellant as administrator of the estate of Wm. Price is confined to the
state of his appointment, and he has no right to collect the rents or profits of land located in
California. (Cal. Code Civ. Proc. 1913; 1 Woerner, American Law of Administration, 157,
158, 160, 168; McPike v. McPike, 111 Mo. 216, 20 S. W. 12; Fairchild v. Hagel, 54 Ark. 61,
14 S. W. 1102; Smith v. Wiley, 22 Ala. 396, 58 Am. Dec. 262; Rutherford v. Clark, 4 Bush,
27; Low v. Burrows, 12 Cal. 188; Taylor v. Barron, 35 N. H. 496.)
The policy of the law of both Nevada and California requires that all actions for injury to
land, or which affect the title thereto, must be prosecuted where the lands are situated. (Gen.
Stats. 3040; Cal. Code Civ. Proc. 392.)
An action in any form to determine a right or interest in real property must be tried
where the property is situated.
25 Nev. 203, 208 (1899) Price v. Ward
real property must be tried where the property is situated. (Drinkhouse v. Spring Valley Water
Works, 80 Cal. 308, 22 Pac. 252; Sloss v. De Toro, 77 Cal. 132, 19 Pac. 233; Baker v.
Fireman's Fund Ins. Co., 73 Cal. 182, 14 Pac. 686; Marysville v. North Bloomfield Gravel M.
Co., 66 Cal. 343, 5 Pac. 507.)
The administrator can recover only for waste committed during the lifetime of Wm. Price.
(Stats. 1897, p. 145, sec. 166.)
Rents and profits issuing out of real estate after the death of the owner are a part of the
realty, and therefore pass to the heir or devisee, and not to the personal representative of the
deceased owner. (11 Am. & Eng. Ency. Law, 2d ed., pp. 841, 1209, note 833, 1208; Shepard
v. Manhattan R. Co., 117 N. Y. 446, 24 N. E. 30; Griswold v. Metropolitan Elev. R. Co., 122
N. Y. 102, 25 N. E. 331; 1 Washb. Real Prop. 152-154.)
No one has a right to redeem land from a mortgagee, unless he has an interest in the
property itself. (11 Am. & Eng. Ency. Law, 2d ed., p. 215, note 1.)
The administrator's possession of the real estate in Nevada is for the protection of
creditors, and unless there are creditors the heirs may recover possession, and there is no
necessity for administration. (Gossage v. Crown Point M. Co., 14 Nev. 153; Wright v. Smith,
19 Nev. 143, 7 Pac. 365; Beckett v. Selover, 7 Cal. 238, 68 Am. Dec. 237; Chapman v.
Hollister, 42 Cal. 463.)
The complaint in this action consists of two counts.
By the first count the appellant, as administrator of the estate of William Price, deceased
(appointed as such by a probate court of this state), seeks by a decree in equity to have a deed
absolute on its face to lands in the State of California declared a mortgage, to redeem said
lands from the same by setting off against the debt secured thereby damages in waste
committed by the respondent in possession thereof as mortgagee after the death of the
intestate, the mortgagor, and for a judgment over for the balance of the damages after the
satisfaction and discharge of the mortgage debt.
By the second count the said appellant seeks a judgment against the respondent for
damages for waste or trespass committed by the respondent, after the death of the
intestate, to the same lands in his possession under the deed absolute on its face, but
alleged to have been given as a mortgage.
25 Nev. 203, 209 (1899) Price v. Ward
committed by the respondent, after the death of the intestate, to the same lands in his
possession under the deed absolute on its face, but alleged to have been given as a mortgage.
The specific acts complained of are cutting and selling the timber growing upon said lands. A
demurrer to the complaint was interposed and sustained. The appeal is from the order
sustaining the demurrer, and the judgment rendered thereon.
Waste, as understood in law, is permanent or lasting injury done or permitted to be done
by the holder of a particular estate to the inheritance, or the prejudice of any one who has an
interest in the inheritance. (Duvall v. Waters, 18 Am. Dec. 350; Dooley v. Stringham, 4 Utah,
107, 7 Pac. 405; Davenport v. Magoon, 13 Or. 3, 4 Pac. 299; Cooley, Torts, p. 302; 28 Am.
& Eng. Enc. Law, 1st ed., 862.)
Waste and trespass are easily distinguished. Briefly stated, waste is the permanent or
lasting injury to the estate by one who has not an absolute or unqualified title thereto.
Trespass is an injury to the estate, or the use thereof, by one who is a stranger to the title.
(Duvall v. Waters, supra; Lander v. Hall, 69 Wis. 326, 34 N. W. 80; High, Inj., 3d ed., sec.
650.)
Our statutes have in no manner changed the definition of waste as above given. We have
also been unable to find any provision of the statutes that in any manner changes the
distinction made by the authorities above cited. The only change made by the statute in action
for waste, if it can be called a change, is found in that provision giving a right of action, to
any person aggrieved, for waste committed by a guardian, tenant for life or years, joint
tenant, or tenant in common of real property. (Gen. Stats. 3274.)
It will be observed that this section in no manner changes the rights of a mortgagor or
mortgagee in such action as they existed at common law.
At common law no person could maintain an action for waste but he who had the
immediate estate of inheritance, without any interposing vested freehold. (28 Am. & Eng.
Enc. Law, 1st ed., 904.) Also, at common law a mortgagee in possession as such might
commit waste, unless he had expressly covenanted against it; but he would be required to
apply the timber cut to the interest and principal of the mortgage debt, in an action to
foreclose or redeem.
25 Nev. 203, 210 (1899) Price v. Ward
apply the timber cut to the interest and principal of the mortgage debt, in an action to
foreclose or redeem. (2 Greenl. Cruise on Real Property, p. 111; Hill. Mortg., 4th ed., 1123;
28 Am. & Eng. Enc. Law, 1st ed., p. 897; Hanson v. Derby, 2 Vern. 392; McCormick v.
Digby, 8 Blackf. 99; Onderdonk v. Gray, 19 N. J. Eq. 65.)
Although a mortgagee in fee in possession has a right at law to commit any kind of waste,
because he is considered as the absolute owner of the inheritance, yet he will be restrained in
equity; and the court of chancery will also decree an account to be taken of the trees cut
down, and direct the produce to be applied first in the payment of interest due on the
mortgage, and then in reducing the principal. (2 Greenl. Cruise on Real Property, supra.)
In Onderdonk v. Gray, supra, it is said: A mortgagee in possession is bound to account
for all rents, issues and profits received by him, and for all waste and destruction of the
premises, and must deduct the allowance for these matters from the amount due on his
mortgage; and Gray has adopted the proper course to entitle him to such allowancefiling a
cross bill, and praying for such account, and to be allowed to redeem on paying the balance.
But such allowances can only be claimed either on a bill to foreclose or a bill to redeem
against a mortgagee in possession, and in possession as a mortgagee. He cannot be called to
account in such suits for trespass committed by him; nor if he is in possession as a tenant of a
mortgagor under a lease from him, which a mortgagee may take as well as a stranger, can the
mortgagee claim an allowance for rent due on the lease or waste committed as a tenant. (See,
also, Guthrie v. Kahle, 46 Pa. St. 331.)
Keeping these general principles in mind, we come to the main question presented by the
averments in the first count of the complaintthe right of the administrator to maintain an
action to redeem. Generally such action can be maintained by those who have an interest in
the mortgaged premises, and would be losers by foreclosure.
Any person who holds a legal estate in the mortgaged premises, or any part thereof,
derived through, under, or in privity with the mortgagor, and any person holding either a legal
or equitable lien on the premises, or any part thereof, under or in privity with the
mortgagor's estate, may also in like manner redeem from a prior mortgage."
25 Nev. 203, 211 (1899) Price v. Ward
legal or equitable lien on the premises, or any part thereof, under or in privity with the
mortgagor's estate, may also in like manner redeem from a prior mortgage. (Pom. Eq. Jur.
280.)
No person can come into a court of equity for a redemption of a mortgage but he who is
entitled to the legal estate of the mortgagor, or claims a subsisting interest under him. * * * If
the respondents have shown no interest in themselves, or a right to redeem the mortgage on
their own account, or on account of others with whom some connection is shown, and whose
interest they have a right to represent, their claims cannot be supported, notwithstanding some
other person might have a right to enforce the same claim. (Grant v. Duane, 9 Johns. 611.)
At common law the real property of a decedent could not be subjected to the payment of
simple-contract debts, and was not subject to administration; but in this, as in nearly all of the
states, this rule has been changed by statute, and the real property, while descending to the
heirs, is made subject to the payment of debts in the course of administration, and becomes
assets in the hands of the administrator for that purpose. Hence it has been held that the
administrator may have such an interest in the lands of the decedent as would entitle him to
redeem, and therefore entitle him to maintain such an action.
In one case it is said: It is also claimed that the suit is improperly brought by the
administrator, and that the heirs should have been made parties. Whether in such cases the
heirs are ever necessary parties, under our system, where the bill is filed for redemption, or to
remove an alleged cloud in the shape of an undischarged mortgage, it is not now important to
examine. * * * The administrator, being entitled under the statute to the possession of the
lands of his intestate, has such an interest as entitles him to redeem or to compel a release of a
satisfied mortgage; and, if the heirs would have been proper parties, the decree is nevertheless
valid, inasmuch as it does complete justice as it stands, provided it is sustained by the
proofs. (Enos v. Sutherland, 11 Mich. 541.)
Discussing the same question in another case, the court says: "It is said that this bill
cannot be maintained by the administrator of Leach.
25 Nev. 203, 212 (1899) Price v. Ward
says: It is said that this bill cannot be maintained by the administrator of Leach. In England,
where the real estate upon the death of the intestate passes directly to the heir, and is not
assets in the hands of the administrator for the payment of debts, the bill should be brought by
the heirs. But with us the law is different. The action of ejectment is given to the
administrator, and the heirs cannot have the action until there has been a division of the estate
under a decree of the probate court in cases where a division is necessary. It is the duty of the
administrator to pay off the debts out of the personal estate, if sufficient for that purpose, and
prepare the estate for distribution among the heirs. To discharge this duty he must, of
necessity, be permitted to maintain a bill of this description, as the only means of ascertaining
what may be due, if anything, on the mortgage. (Merriam v. Barton, 14 Vt. 513.)
It will be noted that the right of the administrator to maintain an action to redeem the
intestate's lands from a mortgage is based upon the express provisions of the law making the
lands assets in his hands to be administered upon, and giving to him the right of possession
thereof for the purposes of administration. Notwithstanding our statute gives the
administrator appointed thereunder the right of possession of the lands of the intestate not
exempted, and the right to the rents, issues, and profits thereof for the purpose of
administration, and the same became assets in his hands for the payment of debts, it cannot be
claimed or maintained that he is entitled to the possession of lands in another state, and under
another jurisdiction, or that such lands become assets in his hands for the purposes of
administration.
Discussing the power of administrators, the Supreme Court of Iowa uses the following
language: The administrator appointed in this state derives his powers from the statutes of
this state. He succeeds to none of the powers or rights of the Pennsylvania administrator. His
appointment empowers him to collect such assets of the estate as may be found in this state,
and he may make such disposition of them as is directed by the laws of this state; and he is
not answerable for his conduct either to the foreign administrator or to the power from which
his authority is derived, but is independent of both.
25 Nev. 203, 213 (1899) Price v. Ward
the power from which his authority is derived, but is independent of both. There is privity
neither in law nor estate between them, and there is no general principle of law under which it
can be held that a judgment against the one is binding upon the others. (Creswell v. Slack,
68 Iowa, 113, 26 N. W. 42.)
The Supreme Court of the United States, in Johnson v. Powers (139 U. S. 160, 11 Sup. Ct.
526), discussing the same question, quotes with approval from the opinion of Mr. Justice
Grier in Stacy v. Thrasher (6 How. 58), in which he uses the following language: The
administrator receives his authority from the ordinary or other officer of the government
where the goods of the intestate are situate, but coming into such possession by succession to
the intestate, and incumbered with the duty to pay his debts, he is considered in law as in
privity with him, and therefore bound or estopped by a judgment against him. Yet his
representation of his intestate is a qualified one, and extends not beyond the assets of which
the ordinary had jurisdiction. (Johnson v. Powers, 139 U. S. 160, 11 Sup. Ct. 526.)
The following authorities hold to the same effect: 1 Woerner, Admn. 158; 8 Am. & Eng.
Enc. Law, 1st ed., 427; Taylor v. Barron, 35 N. H. 496; Deery v. Cray, 5 Wall. 803;
Braithwaite v. Harvey (Mont.), 36 Pac. 39; State v. Fulton (Tenn. Ch. App.), 49 S. W. 297.
If, then, an action to redeem lands from a mortgage by setting off and applying damages in
waste committed by the mortgagee in possession as such can only be maintained in an action
to foreclose or redeem, and if the administrator can only maintain an action to redeem as to
such lands as are assets in his hands for the purpose of administration, or to which he is
entitled to the possession, then it cannot be claimed that he has any power or right to maintain
such action as to lands which are not assets in his hands, and the possession of which he is
not entitled to.
Considering now the right of an administrator appointed under the law of this state to
maintain an action for damages in the nature of waste committed after the death of the
intestate by a mortgagee upon the mortgaged premises situated in another state, it is clearly
apparent that, if the rule laid down in the authorities above cited prevails here, no such
authority, power, or right exists.
25 Nev. 203, 214 (1899) Price v. Ward
laid down in the authorities above cited prevails here, no such authority, power, or right
exists.
If such claim for allowance for damages by waste can be made only in actions to foreclose
or redeem under the reason given, then the administrator cannot maintain an action for waste
committed by a mortgagee upon the mortgaged premises in an independent action. It may
with a show of reason be claimed that the rights of the mortgagee and a mortgagor with
reference to the possession of the mortgaged premises have been changed by our statute,
which declares that a mortgage of real property shall not be deemed a conveyance, whatever
its terms, so as to enable the owner of a mortgage to recover the possession of the real
property without foreclosure and sale. (Gen. Stats. 3284.)
The mortgagee, under the above provision, not having the right to recover the possession
of the mortgaged premises before foreclosure and sale, has no right to the possession.
Therefore his entry upon the mortgaged premises and cutting the timber thereon were without
authority of lawa trespass for which he should be held liable in damages to the proper
parties in a court of competent jurisdiction. If this be the correct view of the law, then he must
be held liable for such damages under that section of our statute which gives a right of action
to the owner of such land against any person who shall cut down or carry away any of the
trees or timber thereon without lawful authority. (Gen. Stats. 3275.)
Can it be claimed under these provisions of the law that the administrator appointed by the
district court of this state is in any sense such an owner of the lands situated in California,
upon which the respondent, after the death of the intestate, committed the alleged trespass, as
would entitle him, as such administrator, to maintain an action therefor? The title of the
intestate to these lands upon his death vested, under our statute, in his heirs. It certainly
cannot be pretended that the title to real estate in California upon the death of the intestate
vested in the administrator in this state for any purpose whatever. Neither would the law of
this state, under the authorities cited, vest in the administrator the right of possession, or the
right to recover the possession, of said lands. If the administrator can have no title to the
lands in California by virtue of his appointment as administrator in this stateif he is not
entitled to the possession of the same under his appointmenthe can have no right, title
or interest whatever in them, and therefore cannot be called the "owner" thereof, in any
sense or meaning of that word.
25 Nev. 203, 215 (1899) Price v. Ward
to the lands in California by virtue of his appointment as administrator in this stateif he is
not entitled to the possession of the same under his appointmenthe can have no right, title
or interest whatever in them, and therefore cannot be called the owner thereof, in any sense
or meaning of that word.
This court in giving an interpretation to the word owner as used in our statutes, has been
very liberal; holding that one who had the right of possession to be the owner thereof. (For a
full and exhaustive discussion of the question, see State v. Wheeler, 23 Nev. 143, 44 Pac.
430.)
If, then, the administrator cannot, under these statutes, maintain the action, we must look
to other provisions of the law to ascertain whether such authority is given. By sections 165,
166, pp. 144, 145, Stats. 1897, the legislature has conferred authority upon administrators to
maintain certain actions. In the last-named section is found authority to maintain actions for
trespass committed upon the real estate of the deceased while living. The facts shown here do
not make a case within this provision, and the right of the administrator to maintain an action
for trespass committed upon the lands of the deceased situated in this state can only arise by
implication from his right to the possession, and the rents, issues, and profits, as conferred by
preceding sections of the same act (sections 94 and 164), or by giving to the words owner of
such lands, of section 3275, above cited, an interpretation that would allow the party entitled
to the possession of such lands a right of action.
We must therefore conclude that an administrator appointed under the laws of this state
holds no such right, title, or interest in and to the lands of his intestate situated in another state
as would authorize him to maintain an action to redeem from a mortgage thereon by setting
off against the mortgaged debt waste committed thereon by the mortgagee in possession
thereof as mortgagee after the death of the intestate; nor has such administrator such right,
title or interest in said lands as would authorize him to recover for such damage committed as
aforesaid; nor has he such power or authority conferred by our statutes to maintain an action
for damages in trespass committed by the respondent upon said lands after the death of the
intestate.
25 Nev. 203, 216 (1899) Price v. Ward
upon said lands after the death of the intestate. The admitted wrong is not without its proper
remedy, and right of action can be maintained by the proper parties.
The judgment and order will be affirmed.
Belknap, J.: I concur.
Bonnifield, C. J., dissenting:
A demurrer to the plaintiff's complaint was sustained by the district court on the grounds
that said complaint does not state facts sufficient to constitute a cause of action in favor of
the plaintiff and against the defendant. Judgment was given to the effect that the plaintiff
recover nothing from the defendant, and that the defendant recover his costs of the plaintiff,
taxed at the sum of three dollars. This appeal is taken from the judgment and from the order
sustaining the demurrer.
It appears from the complaint that said William Price died intestate in October, 1897, at
Washoe county, State of Nevada, the place of his residence; that said Albert F. Price was duly
appointed administrator of the estate of said deceased by the district court of said county, and
that he duly qualified and entered upon his duties as such administrator; that in the year 1894
said William Price borrowed $1,000 of defendant, a resident of said county, and then and
there executed to defendant his promissory note therefor, and thereupon, to secure the
payment of said note, executed to the defendant a mortgage on a certain section of timber
land belonging to said Price containing 640 acres, and situated in Nevada county, State of
California; that in January, 1897, default having been made in the payment of said note, Price,
at the request of the defendant, executed and delivered to him, at said Washoe county, a deed
of conveyance for said land and premises; that said deed was absolute in form, but executed
by Price and received by the defendant only as security to secure the payment of said
promissory note, and other sums advanced by the defendant on account of said land; that said
deed was duly recorded in the office of the county recorder of said Nevada county, State of
California, on the 9th day of January, 1897; that at the time of the execution of said deed and
at the date of the death of William Price said land was heavily timbered with trees suitable
for the manufacture of lumber, sawed timbers, and firewood; that said land, with the
timber standing thereon, was worth at said dates $12,000; that the defendant, since the
death of said Price, and without the permission of any one representing said estate, and
without authority from any source, willfully entered upon said land, erected thereon a
sawmill, cut down a large number of the trees standing on said land, manufactured the
same into lumber and sawed timbers, removed and carried said lumber and sawed
timbers away from said land, and converted the same to his own use; that said lumber
and timbers manufactured, removed, carried, and converted as aforesaid by the
defendant were and are of the net value of $6,000; that there is due the defendant on
said promissory note, and for certain payments made by the defendant on account of said
land, the sum only of $1,700 in the aggregate.
25 Nev. 203, 217 (1899) Price v. Ward
said land was heavily timbered with trees suitable for the manufacture of lumber, sawed
timbers, and firewood; that said land, with the timber standing thereon, was worth at said
dates $12,000; that the defendant, since the death of said Price, and without the permission of
any one representing said estate, and without authority from any source, willfully entered
upon said land, erected thereon a sawmill, cut down a large number of the trees standing on
said land, manufactured the same into lumber and sawed timbers, removed and carried said
lumber and sawed timbers away from said land, and converted the same to his own use; that
said lumber and timbers manufactured, removed, carried, and converted as aforesaid by the
defendant were and are of the net value of $6,000; that there is due the defendant on said
promissory note, and for certain payments made by the defendant on account of said land, the
sum only of $1,700 in the aggregate. The plaintiff prays for judgment for treble the said sum
of $6,000, less the said sum of $1,700, and for costs of suit, for a decree requiring the
defendant to surrender to plaintiff said promissory note, and to execute, acknowledge, and
deliver to him, as such administrator, a conveyance of said land, and for general relief.
It is said in the decision on demurrer: This is an action on the part of Albert F. Price, as
administrator of the estate of William E. Price, deceased, appointed in the district court of the
Second judicial district of the State of Nevada, in and for Washoe county, against M. E.
Ward, a resident of this jurisdiction, to obtain a decree of this court declaring a deed executed
in this jurisdiction by William E. Price, in his lifetime, of property situated in Sierra [Nevada]
county, State of California, a mortgage; to compel a conveyance of said property to said
Albert F. Price, as administrator; and for triple damages for waste committed on said property
by said defendant.
It is further said: Taking all of the allegations of the complaint as true, it simply amounts
to a declaration that this property is the property of the estate of William Price, deceased, in
the State of California, subject to administration in that state, and gives a right of action, not
to the administrator appointed in the State of Nevada, but to the administrator appointed, or
that should be appointed, in the State of California.
25 Nev. 203, 218 (1899) Price v. Ward
administrator appointed, or that should be appointed, in the State of California. The claim for
damages for waste rests upon the same basis.
That said deed, in effect, is simply a mortgage, under the allegations of the complaint, is
not controverted, and needs no citation of authorities. That some one is entitled to a decree
declaring it to be a mortgage seems clear. It seems clear that the defendant is liable to account
to some one, in some court, for the net value of said lumber and sawed timber that he
removed from the mortgaged premises and converted to his own use, alleged to be the sum of
$6,000. It likewise appears that some one is entitled to a personal judgment against the
defendant for the difference between said net value of $6,000 and said $1,700 due from said
estate to defendant, and to a conveyance of said land from the defendant, so as to put the title
in the true owner, the estate of William Price, and to have said promissory note given up. To
recover the net value of said property so converted, or a judgment for the difference between
said value and the $1,700 due the defendant, the action would have to be prosecuted in a
court having jurisdiction of the person of the defendant.
No court in the State of California can acquire jurisdiction of the person of the defendant
in the State of Nevada, the place of his residence, by the service in this state of any process or
notice that it may issue. We cannot presume that the defendant would voluntarily appear in
such action and submit his person to the jurisdiction of such court. An administrator
appointed in California could not maintain such an action in a court in the State of Nevada. If
such action cannot be maintained in a Nevada court, then the defendant may retain said
lumber and timber, or the proceeds of the sale thereof, to his own use, although, as shown by
the complaint, and admitted by the defendant, as the case now stands, the same is not his
property.
In Edwards v. Ballard, 14 La. Ann. 362, it is held that, although no real action would lie in
Louisiana for lands sold in Mississippi, yet a suit brought to recover the proceeds of those
lands from a defendant domiciled in Louisiana would fall within the jurisdiction of the
Louisiana courts. In most of the states, under the common law and the statutes, the real
estate of the deceased person descends directly to the heir or devisee, without passing
through the custody of the executor or administrator.
25 Nev. 203, 219 (1899) Price v. Ward
real estate of the deceased person descends directly to the heir or devisee, without passing
through the custody of the executor or administrator. Upon this rule counsel seems to base his
contention that the plaintiff could not maintain an action against the defendant on any cause
accruing with respect to real estate after the death of the intestate, even though the property
was situated in this state; that the right of action would belong solely to the heir or devisee.
But in several of the states, including Nevada, California, Alabama, and Minnesota, the
personal representative is entitled to the possession and control, for the purpose and during
the term of the administration, of the real as well as the personal property of the decedent.
(Woerner, Admn. 337; Stats. 1897, p. 119.)
For particular purposes the letters of administration relate back to the time of the death of
the intestate, and vest the property in the administrator from that time. On this principle an
administrator may maintain trespass for injuries to the goods of the intestate committed after
such death, and before his appointment. (Woerner, Admn. 173.)
And where the administrator, under the statute, is put into possession of the real estate as
well as the personal estate, any action necessary to protect the same against wrongdoers, or to
recover damages for injuries thereto, including ejectment for possession, must lie in favor of
the administrator. (Woerner, Admn. 293, and cases cited in note 2.)
When he has properly asserted his right to the possession, he may maintain possessory
action in his own name, even against the heirs or devisees, or recover the rents, incomes, or
profits, or for injury to the land or anything severed from it, or for injuries committed before
he took possession, and after the death of the decedent. (Woerner, Admn. 337.)
An executor or administrator may maintain an action to recover timber logs cut and
removed by a trespasser from the lands of the estate, although the heir or devisee may also
maintain an action on failure of the personal representative to assert his statutory rights.
(Leatherwood v. Sullivan, 81 Ala. 458, 1 South. 718.)
A personal representative who has taken possession of the real estate of the decedent can
maintain an action for injuries to such realty committed post mortem decedentis.
25 Nev. 203, 220 (1899) Price v. Ward
to such realty committed post mortem decedentis. This is so even if the injuries were
committed before he took possession, and before his letters of administration were granted.
(Noon v. Finnegan, 32 Minn. 81, 19 N. W. 391.)
If the premises are vacant and unoccupied, the bringing of such action would be
equivalent to taking possession. (Noon v. Finnegan, 29 Minn. 418, 13 N. W. 197.)
The whole estate, real and personal, under our system, is assets, and may be, if required,
applied to the payment of the debts of the estate. (Washington v. Black, 83 Cal. 295, 23 Pac.
300.)
I think said contention of counsel, and the inference sought to be drawn therefrom against
the rights of the administrator in this case, are without merit.
It is argued by the trial court and by counsel that a decree declaring said deed to be a
mortgage, and requiring the defendant to execute a deed to the plaintiff by the district court of
Washoe county, would be meddling or interfering with the devolution of the property of the
estate in the state where it is located, and that the courts of that state would disregard such
decree and deed, and that the defendant would be still liable to an action for waste by an
administrator appointed in California. The answer to this contention is:
FirstThat such deed would in no manner meddle with the devolution of the property of
the estate situated in California, or interfere with the administration of the estate there. A deed
from the defendant to the plaintiff as administrator would simply take the title out of the
defendant and place it in the plaintiff as administrator, showing that the property belonged to
the estate of the deceased, whereas it now appears of record in the recorder's office of Nevada
county, Cal., to belong to the defendant. It would form the basis for, and facilitate, the
administration of the estate of William Price in that state.
SecondThere would be no occasion for the administrator, when appointed in California,
to bring a suit to have said deed to the defendant decreed to be a mortgage, and thus
determine the true ownership of said land.
ThirdSuch administrator could not recover judgment against the defendant for waste, or
for the value of said lumber and timbers converted as aforesaid, unless the defendant
voluntarily placed himself within the jurisdiction of a California court.
25 Nev. 203, 221 (1899) Price v. Ward
ber and timbers converted as aforesaid, unless the defendant voluntarily placed himself within
the jurisdiction of a California court.
The contention that the courts of California would pay no attention whatever to any such
deed from the defendant is simply an assumption of counsel. It seems well established by the
authorities cited by appellant's counsel that, when the court has acquired jurisdiction of the
parties in a matter of proper equitable cognizance, it may, by acting in personam, compel the
conveyance of interests in real property, and administer other relief in the furtherance of
justice, notwithstanding the property or interest involved may be situated without the state.
From the allegations of the complaint, it appears that the defendant has unlawfully
appropriated a portion of said property of said estate. The deed prayed for would be a means
to prevent further unlawful appropriation, and preserve the remainder of said property to said
estate, which equity and good conscience demand.
That the complaint shows that some one is entitled at least to recover a personal judgment
against the defendant for said value of said lumber and timbers, less the said sum due the
defendant and a decree declaring that said deed to defendant is a mortgage, and requiring him
to execute a deed to said land, and to give up said promissory note, I think cannot be
reasonably disputed. The vital question in the case is, is the plaintiff entitled to such a
judgment and decree? If so, he can prosecute this action therefor. The moneys collected on
such judgment by the plaintiff would properly be assets of said estate, and subject to the
payment of resident and non-resident creditors of the intestate who have presented, or who
may present, their claims in pursuance of the provisions of the statute.
The policy of the law in every state is to subject all the property of the decedent, real and
personal, to the payment of the creditors of the decedent, except certain reasonable
exemptions for the benefit of his family. If the plaintiff cannot maintain this action to recover
such judgment, then the heirs alone may sue the defendant, and recover the value of said
lumber and timber for their own use, and deprive all of said creditors thereof, in
contravention of said policy; for, if the administrator could compel the heirs to account for
the moneys collected of the defendant for the value of said property, I see no reason why
he may not maintain the action against the defendant for said value.
25 Nev. 203, 222 (1899) Price v. Ward
of said creditors thereof, in contravention of said policy; for, if the administrator could
compel the heirs to account for the moneys collected of the defendant for the value of said
property, I see no reason why he may not maintain the action against the defendant for said
value. Such judgment in favor of the plaintiff would inure to the benefit of all creditors of the
deceased, and to all his heirs, in manner contemplated by the law, and would be no injury to
any one. And the deed prayed for would benefit all parties who have any interest in the estate
situated in California, by placing the title beyond dispute in the estate there, and thus aid in
the prompt administration thereof, while, as I think I have shown above, the defendant can be
in no manner injured in any of his rights, or subjected to a second recovery for the value of
said property so converted by him.
The plaintiff is liable for the payment of said promissory note so far as anything appears to
the contrary, and if he has not the legal capacity to maintain this action he has no defense
against said note. He could not properly set up as a defense in an action on the note by the
respondent any of the matters contained in the complaint herein. The respondent may then
retain said lumber and timber to his own use without accounting to the plaintiff therefor and
compel the plaintiff to pay said note if there be sufficient assets in his hands.
I am of opinion that Albert F. Price, as the legal representative of the intestate, has the
right to maintain this action for the recovery of a judgment and decree above indicated and
that it is his duty to do so in the interest of the creditors of the decedent and all persons
having an interest in said estate.
I am of opinion that the order of the district court sustaining said demurrer should be
overruled and the judgment reversed.
____________
25 Nev. 223, 223 (1899) Thomas v. Blaisdell
[No. 1569.]
Mrs. C. THOMAS, Respondent, v. Mrs. J. A.
BLAISDELL, Appellant.
Practice on AppealFindingsStatementRecord. Findings found or refused, not embodied in the statement
on motion for new trial, are not part of the record on appeal.
Easement. It is the right of both parties to insist that an easement remain substantially as it was at the time of its
acquisition.
IdemIrrigationDuty of Dominant Owner. An irrigating ditch belonging to one person for many years ran
over the land of another, and the former had from time to time widened and deepened it, against the
protest of the latter, until the increased volume of water endangered the latter's house, and obstructed the
free use of her premises. To remedy the obstruction, boxes were built by the land owner, with the
knowledge and without objection of the owner of the ditch, and they remained for twelve years, when the
latter removed them because they had decayed and obstructed the flow of water, claiming that it was the
land owner's duty to keep the ditch boxes for her own protection: Held, that it was the ditch owner's duty
to replace the boxes in the ditch and keep them in repair.
Appeal from the Second Judicial District Court, Washoe County; C. E. Mack, Judge,
presiding.
Suit by Mrs. C. Thomas against Mrs. J. A. Blaisdell for an injunction. There was a decree
for plaintiff, and defendant appeals. Affirmed.
Benjamin Curler, for Appellant:
I. The court should have rendered its decision in favor of appellant, for the reason that the
injury complained of in the complaint would never have existed but for the misconduct and
culpable neglect of the plaintiff in placing boxes in said ditch and allowing them to decay, fall
in, and obstruct the flow of water therein. (2 Greenl. Ev., Redfield's ed., secs. 473-476; Smith
v. Smith, 2 Pick. 621; Flower v. Adams, 2 Taunt. 314; Steel v. Inland W. L. Nav. Co., 2 Johns.
283; Lebanon v. Walcott, 1 N. H. 339.)
II. The appellant conducted water in the open ditch in question for the purpose of
irrigating her said lands from 1864 to about 1885, and thereby had acquired a right so to do;
and in the year 1885 the respondent, without the knowledge or consent of appellant, entered
upon said ditch and placed boxes therein on the north side of her {respondent's) house.
edge or consent of appellant, entered upon said ditch and placed boxes therein on the north
side of her (respondent's) house. Said boxes remained in said ditch on the north side of
respondent's house for a period of about thirteen years, and, after rotting and caving in so as
to obstruct the flow of water in said ditch, she, the said respondent, refused to repair them.
The appellant, therefore, had the right to remove the boxes, even though such act were to the
annoyance of respondent. (Mahan v. Brown, 13 Wend. (N. Y.) 261; Smith, Leading Cas. 472,
and notes; Radcliff v. Mayor of Brooklyn, 4 N. Y. 195; Pickard v. Collins, 23 Barb. 444; Ellis
v. Duncan, 21 Barb. 230; Vandenburgh v. Truax, 47 Am. Dec. 268; Guille v. Swan, 19 Johns.
(N. Y.) 381; Bonnell v. Smith, 53 Iowa, 281; Omstead v. Rick, 6 N. Y. Supp. 826; 16 Am. &
Eng. Enc. Law, 930.)
III. The appellant had not, by acquiescence in the placing of a box in her open ditch, lost
her right to have such open ditch maintained over respondent's lands, and the court could not,
without her consent, compel her to accept any covered box whatever in lieu of the original
open ditch. (Johnston v. Hyde, 32 N. Y. 446; Hulme v. Shreve, 3 Green, Ch. N. Y. 460;
Merritt v. Parker, Coxe, N. Y. 460; Tillotson v. Smith, 32 N. H. 90; Dewey v. Bellows, 9 N.
H. 282; Jewett v. Whitney, 43 Me. 242; 6 Am. & Eng. Enc. Law, note 150.)
Torreyson & Summerfield, for Respondent:
I. Appellant's error lies in his failure to distinguish between the ownership and the
operation of an easement and the same character of property situated upon the dominant
owner's estate. It is certainly plain that appellant would have had the right to maintain and
operate the ditch as she pleased had it been situated upon her own lands and such
maintenance and operation would have injured or damaged no one else. But it is submitted
that in law and equity she had no right to so maintain or operate it upon the lands of the
servient estate so as to either endanger or damage the estate upon which it rested as a
servitude.
II. Appellant is in error in repeatedly stating that the boxes were originally placed in the
ditch by respondent. The evidence of both respondent and Mr. Martin was to the effect that
Mr.
effect that Mr. Martin placed the boxes in the ditch without any authority whatsoever so to do
and for the purpose of preventing trouble between appellant and respondent at the time. It had
become appellant's legal duty at that time to so box her ditch that it should not become a
nuisance to and endanger the premises and dwelling house of respondent. Mr. Martin's kind,
but unauthorized, act in boxing the ditch in no sense relieved appellant from performing her
duty when the conditions again occurred making it necessary so to do in order to prevent
recurring danger and damage.
III. The owner of the dominant estate must not so enlarge the use of an easement as to
increase the burden resting upon the servient estate. (North Fork Water Co. v. Edwards, 121
Cal. 662; Boynton v. Longley, 19 Nev. 69; Joseph v. Alger, 108 Cal. 517; 6 Rights, Remedies
and Practice, 2778; 6 Am. & Eng. Enc. Law, 149.)
IV. Sic utere tuo ut alienum non laedas. So use your own as not to injure another's. The
above is one of the great fundamental maxims of the common law controlling the use of
property and has been universally recognized by both the English and the American courts as
a landmark of the law necessary for the proper enjoyment of the rights of property. (Boynton
v. Longley, 19 Nev. 69; Shane v. K. C. R. Co., 71 Me. 245; Joseph v. Alger, 108 Cal. 108.)
The maxim is peculiarly applicable to the use and operation of easements. (Jacobs v. Day,
111 Cal. 579.) The owner of an easement must not use the same so as to render it a nuisance
to the servient estate. (Jacobs v. Day, 111 Cal. 571; 6 Am. & Eng. Enc. Law, notes, 149, 152;
Washb. Easem. 654, et seq.)
V. Ditch owners are required and bound to keep their ditches in such repair that the water
will not overflow or break through its banks, or destroy or damage the lands or premises of
other parties. (Shields v. Orr Ditch Co., 23 Nev. 349; Richardson v. Kier, 34 Cal. 63;
McCarty v. Boise City Co., 10 Pac. 623; Parker v. Larsen, 86 Cal. 236; Pixley v. Clark, 35 N.
Y. 520; Black, Pom. Water Rights, 197; Angell on Watercourses, 330.)
This is an appeal from a judgment and decree given against defendant, and in favor of
the plaintiff, and from an order denying defendant's motion for a new trial.
against defendant, and in favor of the plaintiff, and from an order denying defendant's motion
for a new trial. The judgment is for costs of suit.
By the decree, the defendant, her agents, etc., are perpetually enjoined and restrained
from allowing any water to flow in her ditch, designated in the pleadings and evidence in said
cause as the Blaisdell Ditch,' until said defendant, Mrs. J. A. Blaisdell, first restores the box
in the said ditch at the same place it occupied when removed by the said defendant, and from
allowing more water to flow in said ditch than it will safely carry.
It is specified in the statement, on motion for new trial, that the court erred in making
certain findings of fact for the plaintiff, and in refusing to make certain findings asked for by
the defendant, and counsel for appellant makes a lengthy written argument thereon. But
neither the said findings so made nor the proposed findings so refused are embodied in the
statement on motion for new trial, and are therefore no part of the record on appeal. This rule
is so well settled that it is not worth while to cite authorities.
Appellant's counsel contends that the only issue in the case is as to whether it was the
duty of respondent or the appellant to place the boxes in said ditch and keep them in repair.
To this issue we direct our attention.
It appears that at one time the appellant was the owner of a certain eighty-acre tract of
land, now owned and occupied by the respondent, and also of another tract adjoining said
eighty-acre tract, which latter tract the appellant still owns and occupies.
It appears that in 1872, by a conveyance from the appellant, the respondent became the
owner of the said eighty-acre tract, and on the 1st day of January, 1873, respondent moved
thereon, and ever since has been the owner and occupant thereof.
It appears that some time prior to said conveyance the appellant constructed an irrigating
ditch, now called the Blaisdell Ditch, which ran through said land conveyed to respondent,
and on down to the land that appellant still owns and occupies, for the purpose of irrigating
the latter land.
owns and occupies, for the purpose of irrigating the latter land.
It appears that the course of said ditch ran by and along the front side of the dwelling
house, then and ever since situated upon the land now owned and occupied by the respondent,
and distant therefrom two to six feet; that the said course of said ditch has not been changed;
and that said house is and has been respondent's dwelling house ever since she moved on her
said land in 1873.
As to the dimensions of said ditch when first constructed by appellant, which it seems was
in 1863 or thereabouts, the testimony is conflicting. There is evidence on the part of the
respondent tending to show that at the time it was but from fifteen or sixteen inches wide, and
seven or eight inches deep, and so remained for a number of years after the respondent
became the owner and occupant of her said land and premises, and up to the year 1881 or
1882; that the appellant in said year 1881 or 1882, and from time to time thereafter, and
against the consent and express protest of the respondent, widened and deepened said ditch,
and increased the volume of water therein, until the safety of said house was endangered, and
the free use and comfortable enjoyment by the respondent of said premises were obstructed
thereby.
It appears that, before said enlargement of the ditch and increase of the volume of water,
the respondent was not injured or inconvenienced by said ditch nor by the appellant's use
thereof.
It appears that W. A. Martin, respondent's son-in-law, placed a wooden box, or three boxes
joined together, in said ditch, over fifty feet in length, along and by said house, in 1886, for
the purpose of remedying said obstruction. There is evidence tending to show that said boxes
were so placed with the full knowledge of the appellant at the time and without objection
from her. It appears that Martin placed said boxes as aforesaid on his own motion and at his
own expense; the respondent objecting thereto on the ground that it was the duty of appellant,
as she claimed, to box up said ditch.
It appears that said boxing of said ditch was necessary to remedy said obstruction, and did
so up to the year 1898, when, the lower section of said boxes having become decayed so as to
partially obstruct the flow of water through said ditch to appellant's ranch, the appellant
entered and removed all three sections of the boxes from said ditch, left the ditch open, and
flowed water in large quantities through it to her ranch, and thereby again obstructed and
interfered with respondent's free use and comfortable enjoyment of her said property, and so
continued to do; claiming that it was the duty of the respondent in the first instance to box
said ditch, as aforesaid, for her own protection, and that it was not, and is not now, the duty of
the appellant to box the same.
It appears that, at the time said boxes were placed in said ditch, the ditch, and the
appellant's said use thereof, had become a nuisance to the respondent by reason of the same
being an obstruction and interference with her said use and enjoyment of said premises, and
that said use of said ditch in its open condition since the removal of said boxes was, and a like
future use will be, such nuisance, under section 3273, Gen. Stats.
Where the easement is of such a character that a want of repair injuriously affects the
owner of the servient land, it becomes not only the right, but the duty, of the owner of the
easement to cause all necessary repairs to be made. As, for instance, if one has an aqueduct by
pipes or a gutter across the land of another, he is bound to keep these in repair, so that the
owner of the land shall not be damaged by want of such repair. (Washb. Easem., 3d ed., p.
686, and note 3.)
The burden of the dominant tenement cannot be enlarged to the manifest injury of the
servient estate by any alteration in the mode of enjoying the former. (North Fork Water Co.
v. Edwards, 121 Cal. 662, 54 Pac. 69.)
It is the right of both parties to insist that the easement remain substantially as it was at the
time of its acquisition. (6 Am. & Eng. Enc. Law, 149, and note 1.)
In this case the appellant did not acquire a right to increase the width and depth of said
ditch, or to increase the volume of the water therein, to the extent of obstructing the
respondent's free use and enjoyment of her property as aforesaid.
the respondent's free use and enjoyment of her property as aforesaid.
We are of opinion that it was the duty of appellant to place the boxes in said ditch and
keep them in repair.
The judgment and order appealed from are affirmed.
____________
25 Nev. 229, 229 (1899) Pacific States Savings, Loan and Building Co. v. Fox
[No. 1570.]
PACIFIC STATES SAVINGS, LOAN AND BUILDING COMPANY, Respondent, v.
SARAH J. FOX, as Administratrix of the Estate of John G. Fox, Deceased, Appellant.
Estates of Deceased PersonsClaimsLimitationsWant of Notice. A claim against an estate of a decedent
may be filed after the expiration of the statutory time for the publication of the notice to creditors barring
unpresented claims, where, as provided by Stats. 1899, pp. 110, 111, sec. 108, it appears by affidavit of
the claimant that he had no notice, as the publication of such notice is not summons.
Appeal from the First Judicial District Court, Ormsby County; C. E. Mack, Judge.
Petition by the Pacific States Savings, Loan and Building Company for leave to file its
claim against the estate of John G. Fox, deceased, after the expiration of the statutory time
barring unpresented claims. From an order allowing the claim to be filed, Sarah J. Fox, as
administratrix, appeals. Affirmed.
Alfred Chartz, for Appellant:
I. Section 108, Stats. 1899, p. 111, says: * * * Provided, that when it shall be made to
appear by the affidavit of the claimant, or by other proof, that he had no notice as provided in
this act, to the satisfaction of the court or judge, it may be filed at any time before the filing of
the final account. It is submitted that the words no notice mean any notice. And it is
further submitted that the words when it shall be made to appear are subject to revision by
the supreme court, to the end that we may all know whether it was made to appear or not.
II. Did respondent have actual statutory notice? Statutes of 1S99, p.
utes of 1899, p. 47, provide that all foreign corporations shall appoint an agent upon whom all
legal process may be served. Section 2 provides that any and all legal process may be served
upon such company, by delivering to such agent personally, a copy of such process, which
shall be legal and valid. Section 3 provides that if such company fails to appoint such agent,
then such service may be made upon the secretary of state; provided, that in all cases of
service under this act the defendant shall have forty days in which to answer or plead. The
several terms of the statute are to be construed under the ordinary rules. Foreign corporations
shall appoint an agent upon whom all legal process may be served. Section 107 of the
probate act of 1897 provides for the manner of the service of summons by publication, and
the same was amended in 1899, at page 110. It provides that all creditors must file their
claims within three months. The notice published as per provision is and constitutes the
character and extent of the summons or call upon the creditors to come in within the time
given and file their claims. It is the character and quantity and quality of service in such case
made and provided. All other service in all other actions must be personal, but in actions
authorizing a default against creditors of an estate, a service by publication and posting has
been substituted, and it is submitted that foreign corporations, against whom the energy of the
law and of philosophy is now being directed in order to subject them to legal control, are not
exempt, and the legislature of Nevada did not intend to exempt them from their control, and
from the manner of service imposed. In other words, foreign corporations do not occupy any
better position with reference to the manner of the service of summons or notice upon them
than do citizens of the state, when the law of Nevada says that such corporations shall appoint
an agent within this state upon whom all legal process may be served. It is further submitted
that the publication and posting of a notice to creditors is a summons upon creditors to come
within a certain time and file their claims or be shut out. It is a legal process in business and
legal affairs, to wind up and settle differences and accounts between parties. The object of the
appointment of an agent upon whom all legal process may be served could not have been to
exempt public service of summons as against personal service.
be served could not have been to exempt public service of summons as against personal
service. It was a sweeping enactment, and could not have intended to say that executors must
make personal service of notice to creditors upon foreign corporations. This particular foreign
corporation, in the particular instance, is attempting to take advantage of its own wrong, and
its own disobedience of our law, in attempting to show that they had no notice of the notice
given to creditors in Nevada. If corporations are to be credited with a big white mark, whether
they do right or wrong, may the devil save the hindmost. It is respectfully submitted that after
July 6, 1899, the creditors of the estate of John G. Fox, deceased, were in default, if they had
failed within that time to file their claims, whether such default was taken or not, and that,
without opening such default, no claim could be filed. The petition as revealed by the record
is not a petition to open a default, but is simply a petition for leave to file a claim, and the
record shows that such leave to file said claim given irrespective of the fact that petitioner had
defaulted.
III. Did respondent have implied notice that Mrs. Sarah J. Fox was acting administratrix
of the estate of John G. Fox, deceased, besides having statutory notice? The evidence shows
that shortly prior to her said appointment as administratrix she informed respondent of the
death of John G. Fox, and the evidence shows that within one month thereafter she made
payments upon the claim ordered to be filed, and continued said payments monthly to the
date of said petition. Section 107, as amended in 1899, at page 110, provides that Every
executor or administrator shall, immediately after his appointment, cause to be published,
etc. So, immediately after the appointment of Mrs. Fox as administratrix, respondent was
charged by the law with knowing that she must give notice of her said appointment, and as
they were receiving $127.50 every month from her upon their said claim, they were further
charged by the law with knowledge that their said claim was being paid by a person having
authority to pay, and they were further charged by the law with the knowledge that no one had
any authority to pay said claim, except an executor or administrator, and in this argument
particular stress is laid upon the words in section 10S "that he had no notice," the same
being claimed to mean any kind of notice, or any notice, and it is submitted that
respondent did have expressed statutory notice, and implied statutory notice, and general
notice by necessary implication.
in this argument particular stress is laid upon the words in section 108 that he had no
notice, the same being claimed to mean any kind of notice, or any notice, and it is submitted
that respondent did have expressed statutory notice, and implied statutory notice, and general
notice by necessary implication.
Samuel Platt, for Respondent:
I. The respondent herein respectfully invites attention to Statutes of Nevada, 1899, sec.
108, p. 111, providing a remedy for the creditors of the estate of a deceased person who, by
their absence from the state, have received no notice as under the statute provided. There is
strictly a remedial statute enacted by way of exception to the mandatory provisions forever
barring claims not presented within the period required by law. It is an elementary principle
of law that a remedial statute, especially when the meaning is doubtful, must be construed
liberally so as to extend the remedy.
II. The provisions of section 130 of the statute to regulate the estates of deceased
persons, that it must appear to the satisfaction of the administratrix and the probate judge'
that the claimant had no notice, gives to those officers no power or right to arbitrarily say they
are not satisfied, and to therefore reject a claim. An affidavit of the claimant, showing to the
satisfaction of a reasonable, fair, and impartial mind that he had no notice, is all that is
required. (Cullerton v. Mead, 22 Cal. 96.)
III. Upon an appeal from an order which may have been a matter of discretion the
appellant must show that it was made upon a ground that did not authorize the court to
exercise any discretion, otherwise the appeal will be dismissed. (Cushman v. Brundrett, 50 N.
Y. 296, cited in McKenna v. Bolger, 94 N. Y. 641; Enc. Pl. & Pr., vol. 2, 2d ed., p. 410, and
authorities cited.)
IV. Counsel for appellant contends that the words when it shall be made to appear are
subject to revision by the supreme court. It is respectfully submitted that if the statute
contemplated a review by a higher tribunal, its limitations would not confine the
satisfaction to the district court or judge alone. The position of counsel seems to be that
the reflection of the supreme court's views must shine a priori upon the mind of the
district judge that the opinions of both tribunals might radiate with a combined warmth.
that the reflection of the supreme court's views must shine a priori upon the mind of the
district judge that the opinions of both tribunals might radiate with a combined warmth. It
may be possible to satisfy one court or judge when another would fail to be satisfied.
However, the legislature has empowered the district courts and judges of this state with a
discretionary power in the matter at issue and has relied upon their judicial insight as a
sufficient precaution against unreasonable and tyrannical ruling.
V. It was not established in testimony taken before the district judge that the company
had, at the time of the publication of notice to creditors, a general agent upon whom all
processes could have been served. Counsel for appellant admits this in his brief; and advances
the argument that because no such agent, as required by law, had been appointed by the
respondent corporation, that therefore it could not take advantage of its own wrong by
pleading lack of notice herein. A notice of publication to creditors is not a legal process
strictly so called; neither is it a summons. Whatever may be the analogy, the affidavits of the
respondent show conclusively that no notice of the appointment of administratrix or of the
publication to creditors had come to its knowledge. The testimony of Mrs. Fox only
establishes the fact that the respondent had notice of the death of the deceased. Her testimony
corroborates the facts verified in the affidavits with reference to the appointment of
administratrix and of publication to creditors.
Respondent, a corporation created by the laws of the State of California, petitioned the
district court to file its claim against the estate of decedent after the expiration of the statutory
time for the publication of the notice to creditors barring unpresented claims, upon the ground
that it had no notice of the appointment of appellant as administratrix, and that the final
account had not been filed. Affidavits in support of the motion were also filed, and upon the
showing made an order was entered allowing respondent to file its claim. The administratrix
appeals from the order, claiming that the publication of the statutory notice to creditors of her
appointment, and giving them three months in which to present their claims, was
summons, and, as the petitioner is a California corporation with no agent in this state
upon whom process could be served, the secretary of state, under the statute of 1SS9
{Stats.
of her appointment, and giving them three months in which to present their claims, was
summons, and, as the petitioner is a California corporation with no agent in this state upon
whom process could be served, the secretary of state, under the statute of 1889 (Stats. 1889,
p. 47), was its agent for that purpose, and that the publication of the summons was service
upon him, and is conclusive upon the question of notice.
The act to regulate the settlement of estates of deceased persons, as amended at the session
of 1899, and under which the court acted, provides:
Sec. 107. Every executor or administrator shall immediately after his appointment cause
to be published in some newspaper published in the county, if there be one, if not, then in
such newspaper as may be designated by the court or judge, and post copies thereof in three
public places of the county, a notice of his appointment as such executor or administrator.
Such notice shall be properly entitled of court and cause, specifying the date of appointment,
the name of deceased, and shall be dated and officially signed by the executor or
administrator, and shall direct that all persons having claims against the estate are required to
file the same, with the proper vouchers and statutory affidavits attached, with the clerk of the
court within three months from the date of the first publication of the notice. Such notice
shall be published for at least once a week for four weeks. After the notice shall have been
given as above required, a copy thereof, with the affidavit of publication and posting shall be
filed.
Sec. 108. All persons having claims against the deceased must, within three months after
the first publication of the notice specified in the preceding section, file the same with the
necessary vouchers with the clerk of the court, who shall file and register each claim. If a
claim be not filed with the clerk within three months after the first publication of said notice,
it shall be forever barred; provided, that when it shall be made to appear by the affidavit of
the claimant, or by other proof, that he had no notice, as provided in this act, to the
satisfaction of the court or judge, it may be filed at any time before the filing of the final
account. (Stats. 1899, pp. 110, 111.)
In considering the question whether the notice mentioned in the above sections is
summons or not, we must not overlook the provisions of section 108, to the effect that, when
it shall be made to appear by the affidavit of the claimant, or other proof that he had no
notice, the court may order his claim filed. This provision violates no constitutional
requirement, and requires no judicial construction. We are not at liberty to evade plainly
expressed language, and must enforce the provision according to its terms. If the contentions
of appellant are to prevail, no relief could be given under section 108, for the publication of
the notice itself would give the claimant notice, and estop him from asserting the contrary.
This would result in nullifying a beneficial provision, and creating contradictions not
contemplated by the legislature.
Upon the merits, the order is fully supported by the proofs, and is affirmed.
____________

25 Nev. 235, 235 (1899) Inda v. McInnis
[No. 1564.]
ARNAUD INDA, Appellant, v. W. H. McINNIS, as
Sheriff of Washoe County, Respondent.
PleadingSufficiency of Complaint. In a complaint of a receipt for a deposit of money, to be returned when
settled that plaintiff is not liable for a license on sheep, the necessity of an allegation of settlement of
plaintiff's liability as mentioned in the receipt is not avoided by the averments of ownership in the
plaintiff of 5,396 acres of land in the state, and that the license tax is illegal.
IdemIdemJurisdiction of Justice Court. In an action on a receipt for $300, to be returned when it is settled
that plaintiff is not liable for a license on sheep, where it does not appear that the claim has been settled,
the averment that the tax is illegal will not deprive the justice of the peace of jurisdiction.
Appeal from the Second Judicial District Court, Washoe County; B. F. Curler, Judge.
Action by Arnaud Inda against W. H. McInnis, as sheriff. From an order sustaining a
demurrer to the complaint and judgment entered thereon, plaintiff appeals. Affirmed.
Torreyson & Summerfield, and F. H. Norcross, for Appellant:
I. The court has jurisdiction of the cause independent of the amount in controversy
where the legality of a tax is involved.
the amount in controversy where the legality of a tax is involved. (Commissioners v.
Griswold, 23 Nev. 186; State Constitution, sec. 6, art. VI.) That the legality of a tax is
involved from the allegations of the amended complaint, to us, seems too manifest to require
any extended argument. Indeed, it appears from the statement that defendant's counsel had
never seriously questioned the jurisdiction of the district court to try this action and finally
had to amend his demurrer to meet the exigency of the occasion.
II. Under the allegations of the complaint the real and only question in controversy is
whether appellant was liable for a tax of $300 on his sheep in Washoe county. After setting
forth a state of facts which, if true (and for the purpose of the demurrer they are admitted to
be true), entitled appellant to run his sheep in Washoe county without license, the complaint
alleges: That ever since the said 11th day of April, 1899, the defendant has held and
retained, and now holds and retains, said sum of three hundred dollars, and claims the right to
so hold and retain the same from plaintiff for a license upon the said sheep of plaintiff, and
wrongfully and unlawfully refuses to return to plaintiff the said three hundred dollars, or any
part thereof, though plaintiff has made demand upon him so to do. That a license tax upon
plaintiff of three hundred dollars, or any other sum whatever, on account of herding, grazing,
pasturing or owning said sheep in Washoe county as aforesaid, is without authority of law,
illegal and void.
III. The only decisions to which the lower court has called our attention as having a
bearing upon the question in controversy are the cases of Robinson v. Longley, 18 Nev. 71,
which we are pleased to cite to this court as an authority supporting our contention that the
district court has jurisdiction of this action, and the case of Brown v. Rice, 52 Cal. 489, which
is clearly distinguished from the case at bar. The court say, in the Brown-Rice case, p. 491: It
is not pretended that the rates of toll as fixed by the board of supervisors were illegal in any
respect. In the case at bar it is alleged that the tax claimed is illegal in every respect.
IV. Counsel for respondent cite many authorities in support of the well-settled principle of
law that where money is to be paid, or some other act performed, upon the happening of a
certain condition, that the condition precedent must be shown to have been performed in
every particular before the contract or obligation can be enforced.
to be paid, or some other act performed, upon the happening of a certain condition, that the
condition precedent must be shown to have been performed in every particular before the
contract or obligation can be enforced. But while we admit this to be a correct proposition of
law, we contend that it is not a rule applicable to this case, for the reason that if the court
should consider that this money is only to be returned upon the happening of a condition, then
we contend that the complaint alleges the happening of such condition. The language of the
receipt is as follows: Received of A. Inda three hundred dollars on deposit until it is settled
that said A. Inda is not liable for a license on sheep, and, in case he is entitled to run his sheep
in Washoe county, the money is to be returned to him. Now, the only condition attached to
the return of this money is that it be settled that he is not liable for a license upon sheep and
that he is entitled to run his sheep in Washoe county. The receipt does not say how it is to be
settled that Inda is not liable for a license upon sheep, and counsel for respondent do not
intimate what sort of a settlement they would deem sufficient. But the complaint alleges a
state of facts, which respondent by his demurrer admits to be true, which settles the question
that Inda is not liable for a license upon his sheep. The complaint alleges: That at all the
times and dates herein mentioned, and prior to the time of owning, herding, grazing or
pasturing said sheep in Washoe county, plaintiff was the lessee, owner and holder of five
thousand three hundred and ninety-six (5,396) acres of land in the State of Nevada. From
this state of facts the conclusion of law must necessarily be drawn that appellant was not at
the time of bringing this action liable for a license upon his sheep. The ownership of this land
settled the question that said A. Inda is not liable for a license on sheep. (State v.
Wheeler, 23 Nev. 143.)
V. The complaint further alleges: That a license tax upon plaintiff of three hundred dollars,
or any other sum whatever, on account of herding, grazing, pasturing or owning said sheep in
Washoe county as aforesaid, is without authority of law, illegal and void. We are somewhat
at a loss to understand how respondent can admit that allegation to be true and at the same
time contend that it does not appear from the complaint that it is "settled" that appellant
is not liable for the tax.
to be true and at the same time contend that it does not appear from the complaint that it is
settled that appellant is not liable for the tax. Furthermore, it appears from the terms of the
receipt, that in case he is entitled to run his sheep in Washoe county, the money is to be
returned to him. The owning, herding, grazing or running of sheep is, we believe, a
legitimate occupation in the State of Nevada and, indeed, one of the state's principal
industries, and as long as the owner or person in charge of the sheep does not interfere with
the rights of others he is entitled to run his sheep in Washoe county or any other county.
Whether respondent's counsel take the position that the plaintiff should first bring some sort
of an action to have it settled that he is not liable for a tax upon his sheep before he can
bring an action to recover the money upon the receipt is not entirely clear, but if such is their
contention, we submit that there is nothing in the receipt itself that would warrant such a
construction as would require the appellant to resort to two actions when one would
accomplish every purpose.
VI. We admit that if this was an action on the receipt to recover three hundred dollars and
no question was raised as to the legality of the license tax, then the district court would have
had no jurisdiction, for in such an event the legality of a tax would not have been involved.
But that is not this case. The complaint affirmatively sets forth what the controversy is
between the plaintiff and the sheriff, and it affirmatively appears that the sole and only
question between them is as to the plaintiff's liability for the tax. Whether this action is upon
contract or not the legality of a tax is involved and must be determined, and with that
character of a question the justice court has nothing to do.
A. E. Cheney and E. D. Vanderlieth, for Respondent:
I. Just what the appellant claims this action is, we have never been able to definitely
ascertain. The only fair construction of the whole complaint is that it is an action to recover
$300, which was paid by the plaintiff to the defendant upon an unlawful demand for a tax or
license. It was the collection of the license which moved the defendant and caused the
difference between the parties. There was no other consideration for the payment of the
money than to satisfy the demand of defendant for the license, and prevent the
commencement of an action for it, and the attachment of the sheep as security.
other consideration for the payment of the money than to satisfy the demand of defendant for
the license, and prevent the commencement of an action for it, and the attachment of the
sheep as security. The payment was plainly made to avoid that result, and the action is to
recover what was then paid, upon the ground that the sum so claimed was an illegal tax. This
action must be one of two things, either an action ex delicto, based upon the wrongful
collection by the defendant of a sheep license tax of $300, or an action ex contractu, founded
upon the written receipt set forth in the complaint; but, whether in tort, or upon contract, the
result is the same.
II. If it is an action upon the written receipt, the complaint is insufficient. If the receipt
contains a promise to pay, it is upon a condition precedent, viz.: when it is settled that Inda is
not liable for a license on his said sheep, and that he is entitled to run his sheep in Washoe
county. Then, and not until then, the $300 is to be returned to the plaintiff. No action lies
upon this promise until the condition is fulfilled, and the complaint is fatally defective in not
stating that the condition has arisen upon which the liability is predicated. (V. & T. R. R. Co.
v. Lyon Co., 6 Nev. 68; Soderberg v. Crockett, 17 Nev. 409; Waterman v. Banks, 144 U. S.
394; Moore v. Campbell, 12 N. E. (Ind.) 495; Persinger v. Bevill (Fla.), 12 So. 366; De Wein
v. Osburn (Colo.), 21 Pac. 189, Hanly v. Walker (Mich.), 45 N. W. 59; Baker v. Tillman, 84
Ga. 401; Johnson v. Reed, 9 Mass. 78; Combe v. Green, 11 M. & W. 480; 2 Parsons on
Contracts, 7th ed., p. 661; Husenetter v. Gullikson (Neb.), 75 N. W. 41; Wilson v. Wright, 74
N. W. (Mich.), 722; Am. Nat. Bk. v. Dancy (Tex.), 40 S. W. 551; Blodgett v. Hall, 32 N. Y. S.
788; Clarke v. Ross (Ia.), 60 N. W. 627; In re Becker's Estate (Penn.), 31 Atl. Rep. 95;
Atlantic Ave. R. Co. v. Johnson, 134 N. Y. 375; Hecht v. Taubel (N. J.), 26 Atl. Rep. 902; N.
Y. & N. H. Automatic Sprinkler Co. v. Andrews, 23 N. Y. S. 998; 7 Am. & Eng. Enc., 2d ed.,
pp. 118-120.)
III. If the action is upon a contract with or without a condition, the demurrer was properly
sustained, because the demand does not exceed three hundred dollars. Commrs. of Washoe
Co. v. Griswold, 23 Nev. 183, upon which appellant relies to support his contention that the
district court had jurisdiction, proves quite the contrary.
jurisdiction, proves quite the contrary. That action was very properly commenced in the
justice's court, and certified to the district court. If the district court had original jurisdiction,
then the justice's court did not have, and if the justice's court had no jurisdiction, then no
jurisdiction was conferred upon the district court by the case being certified; and, if the
district court renders judgment upon an issue exclusively within the jurisdiction of the
justice's court, this court has no jurisdiction of an appeal from that judgment. (Union Ditch
Co. v. Leete, 24 Nev. 345, 54 Pac. 724.)
Appeal from an order sustaining a demurrer and from the judgment entered thereupon.
The complaint, in substance, alleged: That defendant, during the times mentioned, was the
sheriff of Washoe county. That plaintiff, during the same period, was the owner of 6,000 head
of sheep pasturing in Washoe county. That defendant demanded the sum of $300 of plaintiff,
as a license tax, as such owner. That plaintiff notified defendant that he was the owner of
5,396 acres of land in the State of Nevada, notwithstanding which defendant threatened to
enforce his demand by process of law, unless plaintiff paid the license demanded; whereupon
plaintiff, in order to avoid the detention of his sheep, agreed to and did deposit with defendant
the sum of $300, to be retained by him according to the terms of the following receipt: Reno,
Nevada, April 11, 1899. Received of A. Inda three hundred dollars ($300) on deposit, until it
is settled that said A. Inda is not liable for a license on sheep, and, in case he is entitled to run
his sheep in Washoe county, the money is to be returned to him. W. H. McInnis, Sheriff of
Washoe County. That defendant retains the money for a license upon the sheep mentioned,
and refuses to return any portion of it to plaintiff. That a license tax upon plaintiff on account
of herding, grazing, pasturing, or owning sheep is without authority of law and void.
Defendant demurred to the complaint, on the grounds that it did not state facts sufficient to
constitute a cause of action, and that the court had no jurisdiction thereof.
Plaintiff should have averred in his complaint that the contingency mentioned in the
receipt from the defendant had occurred. This is in the nature of a condition precedent, and
must be averred in an action upon the contract. Counsel for appellant admit that this is the
general rule, but claim that it is not applicable in this case because of the averments of
ownership in plaintiff of 5,396 acres of land in the state, and that the license tax on sheep is
illegal. But the obligation of defendant is to return the money when it is settled that plaintiff
is not liable for a license tax on sheep. Defendant is liable only upon the terms of his
contract, and, if the contingency has not transpired, the action cannot be maintained. To hold
otherwise would be to substitute an obligation for the defendant different from that which he
has himself made.
The demand, exclusive of interest, does not exceed $300, and prima facie the justice court
had jurisdiction; but it is claimed the legality of a tax is involved, and for this reason that the
case was properly brought in the district court. The receipt upon which the action was brought
states that the money was deposited until it is settled that said Inda is not liable for a license
on sheep, and, in case he is entitled to run his sheep in Washoe county, the money is to be
returned to him.
We are not advised by the complaint whether or not proceedings have been instituted for
the purpose of settling these differences, but they should be settled in that action, and not in
this one. The complaint in this case attempts to state a cause of action for money had and
received for plaintiff's use, and is not aided by immaterial averments as to the illegality of a
tax.
The order and judgment are affirmed.
____________
25 Nev. 242, 242 (1899) Lewis v. Hyams
[No. 1573.]
HARRIS LEWIS, Respondent, v. EDWARD HYAMS, and WILLIAM HYAMS, Defendants;
WILLIAM HYAMS, Petitioner.
PracticeExceptionsTime of Taking. Under General Statutes, 3784, providing that, during the progress of a
cause, a party may take his bill of exceptions to the rulings of the judge on points of law, an exception to
a ruling granting a motion to strike out portions of the answer, taken three months after the trial, is not in
time, and should be disallowed.
IdemStatementSettlement Of. A refusal to allow a petitioner his exceptions taken on the trial, in the
settlement of his statement on motion for new trial, is proper, where the exceptions in the statement differ
from those in the transcript of the proceedings made by the reporter, which petitioner refers to in his
statement, makes a part of his petition to prove the exceptions, and introduces in evidence.
IdemIdemIdem. On an application to prove exceptions, a claim that the reporter's transcript of the
proceedings does not give correctly petitioner's exceptions taken at the trial is unsupported, where the
transcript is accompanied by affidavits of the reporter and others present at the trial as to its correctness.
IdemIdemIdemReasons for Refusing Instructions. On application to prove exceptions to the refusal of
instructions it is immaterial that the trial court struck out its reasons given for refusing the instructions in
settling the statement on motion for new trial, where the statement shows that the instructions were
refused and exceptions taken to the refusal.
IdemIdemIdem. A contention that the court, in settling petitioner's statement on motion for new trial,
refused to allow an exception to the refusal to give an instruction, cannot be sustained, where the court
only changed the statement to conform it to the facts with respect to the instruction when it was refused.
IdemIdemIdem. Where the petitioner has failed to comply with the provisions of section 3213 of the
General Statutes, relative to the manner of taking exceptions, this court will not allow exceptions alleged
to have been taken and refused where there is a conflict in the statement of witnesses based upon their
memory of what occurred.
Original proceeding. Application by William Hyams to prove certain exceptions alleged to
have been taken by him in the trial of the case of Harris Lewis against Edward Hyams and
petitioner. Dismissed.
25 Nev. 242, 243 (1899) Lewis v. Hyams
Milton S. Eisner, Trenmor Coffin and F. M. Huffaker, for Petitioner:
I. This is a petition under section 3213 of the General Statutes of Nevada for leave to
prove certain exceptions which the trial court refused to allow in the settlement of petitioner's
statement on motion for a new trial. This is the first instance, so far as we know, in which a
petition of this character has been filed in this court, and this is the first occasion upon which
this court has been called upon to act under the section referred to. Section 3213 of the
General Statutes of Nevada, which is section 191 of the practice act, is the same as section
189 of the old California practice act of 1851, as amended in statutes of California, 1863, p.
360, and is very much similar to section 652 of the present code of civil procedure of the
State of California. Both sections 189 of the California practice act and section 652 of the
California code of civil procedure have been passed upon on several occasions by the
supreme court of that state, and the decisions upon the subject are all to the effect that a
petition for leave to prove exceptions may be made at any time before the submission of the
motion for a new trial, and some of them are even to the effect that such petition may be filed
after the hearing of the motion and before the hearing of the appeal. And those decisions are
also uniform in holding that not only the exceptions themselves may be proven but so much
of the facts and circumstances surrounding the taking of such exceptions as may be necessary
to explain them may also be proven. In this action the statement on motion for a new trial has
been settled and certified to by the judge of the lower court, and at the request of this
defendant and upon the order of this court the hearing of defendant's motion for a new trial
has been continued pending the decision upon this petition. There is no question therefore
under the decisions to which we have referred that this petition is filed in ample time.
II. The subject of application to prove exceptions is very clearly discussed in subdivision
2 of section 155 of Hayne on New Trial and Appeal, and it is there said: The provision
(section 189 of the California practice act, which is identical in terms with the provision of
section 3213 of General Statutes of Nevada) was not precise as to the time in which the
application was to be made.
25 Nev. 242, 244 (1899) Lewis v. Hyams
identical in terms with the provision of section 3213 of General Statutes of Nevada) was not
precise as to the time in which the application was to be made. Possibly it could be made as
soon as the judge had refused to allow the exceptions as desired, and before the
authentication of the statement. But against this it might have been plausibly argued that the
refusal would not be final and irrevocable until the statement was certified, and that until then
the judge should have the privilege of changing his mind. As soon as the certificate was
signed, however, the application could be made; but within what time afterwards is not
expressed. But it had to be made at least before the submission of the case in the supreme
court. (Citing Wormouth v. Gardner, 35 Cal. 228.) We submit that, under the provisions of
the statute above referred to and the decisions about to be cited, this petitioner has filed his
petition in proper time, has followed the course required by the statute and designated by this
court, and has made a sufficient showing and offered sufficient proof to entitle him to the
allowance of his exceptions as prayed for in his petition. And especially is this the fact with
regard to the offer and rejection of the statute of limitations of the State of New York where
both parties agree as to what the actual offer, objection, ruling and exception were, and that
the statement was not settled in accordance with the facts, the one point of difference being as
to whether or not that which was left in the statement would be sufficient to answer the
purposes of petitioner and upon which point the petitioner is not satisfied with the judgment
and conclusion of the district judge or of the counsel for his adversary.
III. With regard to the refusal of certain instructions by the district judge and the
endorsement of his reasons for such refusal on the said instructions, it may be said that a
judge in refusing an instruction is not required to give his reasons therefor; but if he does give
a reason, or file a written opinion, it seems to be required to be taken up on appeal (Gen.
Stats. 3662), and no better nor more convenient method has been suggested that that of
embodying it in the statement on appeal. No good reason has been suggested why defendant
is not entitled to his exceptions to the refusal to give his instructions Nos.
25 Nev. 242, 245 (1899) Lewis v. Hyams
give his instructions Nos. 11 and 12 in accordance with all of the facts including the facts of
the reasons endorsed thereon. If these reasons could have been shown to the judge not to be
good or sufficient reasons, the presumption must be that he would have given the
instructions. If these reasons had been disclosed to counsel, they might have been able to
produce before the judge an array of authorities sufficient to convince him that his reasons
were not well founded. The instructions having been refused for specified written reasons
endorsed thereon, we submit that the defendant and petitioner is entitled to his exceptions in
accordance with the facts. And the same remarks apply to all of the other exceptions
mentioned in the petition.
IV. The court will note in connection with the authorities about to be cited that this
petition is a petition for leave to prove certain exceptions which the court refused to allow
upon the settlement of the statement. In some of the cases in which the Supreme Court of the
State of California was called upon to apply section 189 of the practice act and section 652 of
the code of civil procedure, the petitions were not petitions to prove exceptions that had not
been allowed, but were in fact petitions to have the statement or bill of exceptions corrected
in some particular not touching the allowance or refusal of exceptions. (Wormouth v.
Gardner, 35 Cal. 227-8; Landers v. Landers, 82 Cal. 480; Frankel v. Deidesheimer, 83 Cal.
44; Hyde v. Boyle, 86 Cal. 352; Vance v. Superior Court, 87 Cal. 390; Cox v. Delmas, 92
Cal. 652; Estate of Hill, 62 Cal. 186-7; Baird v. Gleckler, 52 N. W. 1097.)
V. We respectfully submit that the petition of the defendant William Hyams in this case
meets every requirement of the decisions above referred to; that it is a petition for leave to
prove certain disallowed exceptions; that in connection with the proof of these exceptions he
is entitled to prove the surrounding facts, circumstances and evidence necessary to explain the
exceptions which he claims the right to prove; that a petition of this character is in ample time
when presented after the settlement of the statement and before the hearing of the motion for
a new trial, and that, indeed, if it had been filed prior to the settlement it would have been
premature, for the reason that the judge of the trial court might at any time before the
final settlement of the statement by him conclude to insert in the statement the
exceptions which he had previously refused.
25 Nev. 242, 246 (1899) Lewis v. Hyams
premature, for the reason that the judge of the trial court might at any time before the final
settlement of the statement by him conclude to insert in the statement the exceptions which he
had previously refused.
VI. And upon the question of proving the facts, circumstances and evidence surrounding
the taking of the exceptions we respectfully submit that if the trial judge in considering the
statement allows the facts and disallows the exceptions, or if he allows the exceptions and
disallows the facts, in either case he has refused to allow the exception in accordance with the
fact. For example, it is admitted by both parties that certain instructions were given and
refused, but petitioner alleges that his exceptions were not allowed as taken, and, on the other
hand, in the matter of the offer of the statute of limitations of the State of New York, that,
although the exception was allowed to stand, the portion of the offer upon which the
objection and exception were based was disallowed. We respectfully submit that in the proof
of defendant's exceptions he is entitled to establish all of the surrounding facts and
circumstances attending the taking of his exceptions in order that he may meet the
requirements of the statute providing that the point of his exceptions shall be stated.
VII. Under our statute (Gen. Stats. 3212-3215), a complete exception seems to be made
up of four parts or elements: (1) An offer of evidence or a request for an instruction or ruling.
(2) An objection, generally coming from the opposite party, but sometimes from the court. (3)
A ruling or decision by the court. (4) The final noting of the exception, and generally the
order of the court that it be noted. It would seem, therefore, that it requires two lawyers and a
judge to make an exception, and that no one of them has complete control over more than two
parts of a complete exception; and it necessarily follows that unless the parts performed by
each of the three actors are correctly set out and certified the exception cannot be complete in
accordance with the facts. Gen. Stats. 3214, provides: No particular form of exception shall
be required; the objection shall be stated with so much of the evidence, or other matter, as is
necessary to explain it, but no more, and the whole as briefly as possible."
25 Nev. 242, 247 (1899) Lewis v. Hyams
as possible. What are the facts in relation to the exceptions which this defendant desires to
prove? In one instance the defendant has offered in evidence a provision of the statute of
limitations of the State of New York, to which offer the plaintiff objected. The court then
ruled in favor of the plaintiff, and the defendant excepted. In another instance the defendant
has requested certain instructions, to which the plaintiff has presented certain written
objections specifically setting forth the grounds of objections, and the court has ruled in
plaintiff's favor by refusing to allow defendant's requested instructions or in modifying them.
In still another instance the plaintiff has requested certain instructions to which the defendant
has presented written objections specifically setting forth the grounds of objection, and the
court has ruled against defendant by giving the instructions over such objections, to which
ruling the defendant has excepted.
VIII. Now, in all of these instances, although no particular form of exception is required
under the express provision of the statute to that effect, yet, in order that the point of the
exception may sufficiently appear, it is, we submit, necessary that each of these steps which
together constitute the full exception should be set forth in the statement. When this is done
certainly there is no necessity of setting forth in the statement the precise point of the
exception, for it already sufficiently appears when the various steps that have led up to the
taking of the exception have been enumerated. For instance, when a question has been asked
of a witness by one counsel, and an objection, stating the grounds of such objection has been
taken, and the court has either sustained or overruled the objection, and the party against
whom the ruling has been made has noted an exception, and the court has ordered the
exception to be allowed and notedwhen all of these steps are set forth in the statement, they
constitute the statement of the exception and the point of such exception appears upon the
face of the statement. This, we submit, is fully in accordance with the requirements of the
statute, and is precisely what this defendant is seeking permission to do in presenting this
petition for leave to prove his exceptions.
IX. With regard to the instructions requested by the plaintiff and given by this court, it
may be said that defendant filed written objections to these instructions, in which he
stated the grounds of his objections thereto; that these objections were argued before the
court; that the court overruled such objections by giving the instructions, and that the
defendant excepted to such ruling when he excepted to the giving of these instructions.
25 Nev. 242, 248 (1899) Lewis v. Hyams
plaintiff and given by this court, it may be said that defendant filed written objections to these
instructions, in which he stated the grounds of his objections thereto; that these objections
were argued before the court; that the court overruled such objections by giving the
instructions, and that the defendant excepted to such ruling when he excepted to the giving of
these instructions. Likewise, with regard to defendant's requested instructions refused by the
court, it may be said that defendant requested certain instructions; that plaintiff filed written
objections to these instructions, in which he stated the grounds of such objections; that these
objections were argued before the court; that the court sustained such objections when it
refused to give the instructions as requested, and that the defendant excepted to such ruling
when he excepted to the refusal to give these instructions.
X. We respectfully submit that the defendant is entitled not only to prove the fact that he
took such exceptions but also the facts surrounding the taking of such exceptions, for
otherwise it cannot be truthfully said that the statement sets forth the exceptions in
accordance with the facts. And in this connection we again respectfully direct the attention of
the court to the language used in the case of Vance v. Superior Court, 87 Cal., at p. 392,
where the court says: In such a case, the party may prove, if he is able, in this court, that he
did take such exception, and may prove, no doubt, in that connection, sufficient surrounding
facts to show what the point of the exception is. Section 648 of the code of civil procedure
of the State of California is practically identical with section 3214 of the General Statutes of
this state, and under that section it is held that the point of the exception is sufficiently stated
when the fact of the exception itself is stated together with so much of the evidence or other
matter as is necessary to explain it. In order that the exceptions of this defendant to the
instructions, both given and refused, may be made sufficiently to appear upon the face of the
statement we submit that the defendant is entitled to have that statement show the fact that
such instructions were requested and that they were objected to, that the objections stated the
grounds thereof, that the court made its ruling either sustaining or overruling the objections
by giving or refusing to give the instructions, and that the defendant excepted to such
ruling.
25 Nev. 242, 249 (1899) Lewis v. Hyams
either sustaining or overruling the objections by giving or refusing to give the instructions,
and that the defendant excepted to such ruling. And we submit that, when these facts do
appear (and they do appear from the face of the statement as originally presented and before it
was modified by striking from it the portions referred to in defendant's petition), the point of
defendant's exceptions will appear and the exceptions will be stated in accordance with the
requirements of the statute and in accordance with the fact.
W. E. F. Deal and Edmund Tausky, for Respondent:
I. A petition for leave to prove an exception, filed after the statement has been settled by
the judge of the district court, comes too late. Section 191 of the act to regulate proceedings
in civil cases, approved March 8, 1869, is a literal copy of section 189 of the civil practice act
of California, as amended April 20, 1863 (See Stats. Cal. 1863, p. 360), with the addition of
the words, and such exceptions as are allowed by said supreme court shall become a part of
the record of the cause. The provisions of section 189 of the civil practice act of California
have been incorporated in section 652 of the California code of civil procedure. In Landers v.
Landers, 82 Cal. 480, the Supreme Court of California said (p. 482) that Section 189 of the
old practice act was (on this subject) the same as section 652 of the code. Wormouth v.
Gardner, 35 Cal. 227, arose while the practice act was in force. All that was decided in that
case was that a motion to correct a statement or exceptions is an original proceeding in the
supreme court, and must be instituted by petition. (Section 189 of the practice act.) In
Landers v. Landers, 82 Cal. 480, the distinction is pointed out between a proceeding under
section 652 of the code and an application for a writ of mandamus, and it is held that where a
judge refuses to settle any bill of exceptions or statement at allthat is, where he refuses to
actthe remedy for such refusal, if wrongful, is mandamus to compel him to act; but that
section 652 applies to cases where the trial judge in settling a bill refuses to allow an
exception which ought to be allowed. The court further said (p. 481) that the law does not
impose upon the appellate court the general duty of settling a bill of exceptions."
25 Nev. 242, 250 (1899) Lewis v. Hyams
settling a bill of exceptions. In Frankel v. Deidesheimer, 83 Cal. 44, the Supreme Court of
California said that the petitioner was charged with notice that the judge might strike out the
matter which was in fact stricken out, and that it did not appear that any request was made of
the judge below to delay the settlement of the bill or a ruling on the motion for a new trial
until an application could be made to the supreme court to prove the exception desired, and
that under the facts of the case the application was made too late. Hyde v. Boyle, 86 Cal. 352,
89 Cal. 590, is equally in point. See, also, Vance v. Superior Court, 87 Cal. 390. A case
determinative of the question here raised is Cox v. Delmas, 92 Cal. 652.
II. If not too late, nothing but exceptions can be proven. The statute says that if the judge
shall in any case refuse to allow an exception in accordance with the facts, any party
aggrieved thereby may petition the supreme court for leave to prove the same, etc. It is
therefore only an exception taken at the proper time and in the proper manner which may be
proven. This was emphasized by the Supreme Court of California in Vance v. Superior Court,
87 Cal. 390. The court there held that under the statute only exceptions may be proven. It was
argued by counsel for petitioner that no narrow construction should be given to the statute.
In response to this contention, the court said (p. 392): No interpretation can be justly called
narrow' which follows statutory language, which is itself ex industria narrow. When section
652 was enacted the statutory general lawin accordance with the inherent distinction
between trial and appellate courtswas that the judge of the trial court alone should make
that record, which otherwise would not be record, by settling statements and bills of
exceptions, and that the appellate court should act upon records as they came to it. If the
legislature had intended to entirely overturn that ancient rule, and to send the appellate down
into the trial court to construct for the latter an entire history of a trial there, it certainly would
not have confined itself to the narrow' language which it employs. But it evidently
approached the subject with the greatest caution. It said nothing about statements on motion
for new trial, or about what evidence, or what history of proceedings generally, should go
into statements or general bills of exceptions, nor did it undertake to give this court
general power to reconstruct such statements or bills, or determine what evidence should
go into or be stricken out of them.
25 Nev. 242, 251 (1899) Lewis v. Hyams
what evidence, or what history of proceedings generally, should go into statements or general
bills of exceptions, nor did it undertake to give this court general power to reconstruct such
statements or bills, or determine what evidence should go into or be stricken out of them. If
refers solely to a case where the judge is charged with having refused to allow an exception;
that is, where a party claims that he made an objection upon a matter of law to a decision
made' by the court, and took an exception to the decision, and the court refuses to certify, in a
bill or statement, that such an exception was taken, or that such an occurrence took place.
Petitioner, in the case at bar, practically seeks to have this court revise the work of the trial
judge in settling the statement and seeks to prove many matters besides alleged exceptions.
III. Orderly practice requires that there shall be but one statement, complete in itself, on
motion for a new trial or on appeal, and not that the statement shall be contradicted by some
other record, as would be the case if this court, after the statement has been certified by the
trial judge, were to allow an exception which he had refused to allow. The statute (Gen. Stats.
3212) declares that an exception is an objection taken at the trial to a decision upon a matter
of law.
IV. It is an objection to a decision upon a matter of law. It is taken by the party against
whom the decision is made. Of course, an offer, objection and ruling, generally precede an
exception, but none of these are a part of an element of the exception. Until the ruling is
made, it is not known against whom it will be, or who will be entitled to the exception.
V. Counsel for petitioner prepared the statement, and seems to blame the district judge for
his own work. Petitioner's counsel took the reporter's transcript and inserted it as part of the
statement without revision or correction. He was not obliged to do this. If anything was
incorrectly or insufficiently stated in the reporter's transcript, petitioner had the right, when
preparing his statement, to make such statement accord with the facts. Counsel for petitioner
himself made pages 95 and 96 of the reporter's transcript, a part of the statement, and then,
on page 20S of the statement, sought to repeat the matters appearing on pages 123-4,
and to add thereto.
25 Nev. 242, 252 (1899) Lewis v. Hyams
of the statement, and then, on page 208 of the statement, sought to repeat the matters
appearing on pages 123-4, and to add thereto. The district judge accepted the matter taken
from the reporter's transcript and discarded the other. Petitioner has himself to blame,
therefore, if he did not state the matter fully enough in its proper place. But, be that as it may,
we do not concede that the matter on pages 123-124 is not sufficiently full for all practical
purposes.
VI. The reasons for refusing an instruction are not properly a part of the statement. The
statute provides that appeals may be taken from certain judgments and orders. (Gen. Stats.
3352, as amended February 28, 1887, Stats. 1887, p. 92.) It further provides what the
transcript on appeal shall contain. (Gen. Stats. 3362.) Amongst other things, this section
provides that if any written opinion be placed on file in rendering judgment or making the
order in the court below, a copy shall be furnished. The judgment or order referred to is the
judgment or order from which the appeal is takenthe final judgment of the district court or
an appealable order, such as an order denying a motion for a new trial.
VII. This case was tried by a jury. The court therefore did not render judgment, but
judgment was entered upon the verdict. Rulings in the course of the trial upon offers of
evidence or requests for instructions and the like are not appealable orders, and the statute
does not contemplate that every remark of the judge in making a ruling shall be incorporated
in the transcript.
Per Curiam:
The petitioner, William Hyams, filed his verified petition in this court, in which it is
alleged that on the 17th day of May, 1899, a verdict was rendered in said action in the First
Judicial District Court in favor of the plaintiff, and against the petitioner, for the sum of
$14,475, and costs.
It is alleged that petitioner in due time filed his notice of motion for new trial in said
action, and his statement on motion for new trial and on appeal; that said statement has been
finally certified and settled by Hon. C. E. Mack, judge of said district court; that upon the
settlement of said statement said judge of said district court refused to allow several
certain exceptions taken by the petitioner, by and through his counsel, in accordance with
the facts existing at the time said exceptions were taken.
25 Nev. 242, 253 (1899) Lewis v. Hyams
ment said judge of said district court refused to allow several certain exceptions taken by the
petitioner, by and through his counsel, in accordance with the facts existing at the time said
exceptions were taken.
And it is specified in the petition that the plaintiff filed a demurrer to the defendant's
answer, and a motion to strike out all that portion of the answer referred to in subdivision 5 of
the demurrer; that said demurrer and motion were argued and submitted together; that on the
22d day of December, 1898, the court sustained said demurrer as to subdivision 5 thereof, and
granted said motion to strike out said portion of said answer; that petitioner duly excepted,
and now excepts, to the sustaining of said subdivision 5 of said demurrer, and the granting of
said motion to strike out said portions of said answer, and has assigned the same as error in
his said statement; that the said judge, in settling said statement, struck out said exception
and assignment of error, and inserted the following, to wit: Said order sustaining plaintiff's
motion to strike out portions of the answer of defendants was not excepted to by either of
defendants or their counsel, and no bill of exceptions thereto was ever served, filed, or
settled.
It is reiterated in the petition that the petitioner has duly excepted to the sustaining of said
subdivision 5 of said demurrer, and to the granting of said motion to strike out said portion of
said answer.
It is alleged that on the 25th day of August, 1899, the petitioner filed a bill of exceptions to
the granting of said motion to strike out; that said bill was settled by said judge; that, in the
settlement of the said bill of exceptions, said judge struck out therefrom all reference to said
ruling and to defendants' exception thereto.
And it is alleged that, by reason of the facts aforesaid, the said judge has refused to allow
plaintiff's said exception to the order sustaining subdivision 5 of said demurrer, and to
granting said motion to strike out said portions of said answer in accordance with the facts.
It is further alleged that, upon the trial of said action, the petitioner made, through his
counsel, a certain offer; that an objection was made thereto by plaintiff's counsel; that said
objection was sustained, and defendant took an exception thereto, to wit: "The full offer
of the statute of limitations of New York, referred to on pages 95 and 96 of the
stenographer's report, and the objections and exceptions to the rulings, are as follows."
25 Nev. 242, 254 (1899) Lewis v. Hyams
objection was sustained, and defendant took an exception thereto, to wit: The full offer of
the statute of limitations of New York, referred to on pages 95 and 96 of the stenographer's
report, and the objections and exceptions to the rulings, are as follows. The alleged offer is
stated, and the objections of the plaintiff thereto given, and then is added: Objections
sustained. Defendant excepts.
It is then alleged that said offer, objections, rulings, and exceptions were set out in full in
said statement on motion for new trial and on appeal, and that the judge, upon settlement of
said statement, refused to allow defendant's exception, in accordance with the facts, but
struck the same from the statement.
It is further alleged that, at the trial of said cause, Mrs. Anna M. Warren, a competent and
trustworthy shorthand reporter, was, by agreement of the respective parties and by order of
the court, appointed and authorized, and duly sworn, to take the testimony in the case, and
report the proceedings therein, and to transcribe the same, and file one copy with the clerk for
the use of the court, and to deliver one copy to counsel on each side of the case; that said
testimony and proceedings were so taken and written out by said shorthand reporter so
authorized to make the same, and a copy thereof filed with the clerk of said district court in
said case.
It is alleged that the court gave certain instructions to the jury at the request of the plaintiff;
that defendant filed certain objections to said instructions in writing; that, before the
retirement of the jury in said cause, petitioner's counsel arose, and excepted to the giving of
each and all of said instructions, upon the grounds and for the reasons stated in said
objections on pages 225 and 227, both inclusive, of said statement; that, upon the settlement
of said statement, said judge refused to allow the petitioner's said exceptions in accordance
with the facts, but struck the same out.
It is alleged that the petitioner requested certain instructions to be given to the jury, which
instructions the court modified and gave; that the petitioner's counsel at the trial, and before
the retirement of the jury, arose and excepted to the modifications of each of said instructions;
that said exceptions were set out and stated on page 228 of said statement; that upon the
settlement of said statement, said judge refused to allow said exceptions in accordance
with the facts as set out in said statement, but struck the same therefrom.
25 Nev. 242, 255 (1899) Lewis v. Hyams
ment; that upon the settlement of said statement, said judge refused to allow said exceptions
in accordance with the facts as set out in said statement, but struck the same therefrom.
It is alleged that the court refused to give certain instructions asked for by the petitioner for
certain reasons indorsed thereon, and that in the settlement of said statement the judge struck
out said indorsed reasons.
It is alleged that instruction No. 14 of the defendants was refused by the court; that the last
word in said instruction, as it was in fact presented to the court, read plaintiff; that said last
word should have been, and was intended by petitioner's counsel to be, defendant, but that
by some clerical or typographical error or mistake it was written plaintiff; that petitioner
inserted said instruction in his statement with said word reading defendant; that, upon the
settlement of said statement, said judge struck from the instruction said last word
defendant, and inserted in lieu thereof the word plaintiff; and that by so doing said judge
refused to allow defendant's exception to the refusal to give said instructions according to the
facts as in fact existing and as understood at the time of said request and refusal.
The petitioner refers to said statement on motion for new trial and on appeal, and to the
testimony, records, and proceedings, etc., in the court below, and asks that they be taken to be
a part of his petition, with the same force and effect as if herein fully set forth.
The petitioner prays that a time may be set for the hearing of the petition, and that
petitioner be allowed to prove said exceptions, and that thereupon said exceptions, each and
all of them, be allowed, and made a part of the record in said action.
The court gave the petitioner time to file affidavits, and to produce any of the records
made in the trial court he wished, in support of said petition, and gave the respondent time to
file counter affidavits, and any of said records he might choose, in opposition. The petitioner
filed several affidavits, and presented to this court his statement on motion for new trial, the
transcript of the testimony, and of the proceedings made by the reporter. The respondent filed
several counter affidavits. The affidavits on each side set forth a great many alleged facts
which are entirely immaterial and wholly foreign to any matter properly involved in this
proceeding.
25 Nev. 242, 256 (1899) Lewis v. Hyams
many alleged facts which are entirely immaterial and wholly foreign to any matter properly
involved in this proceeding.
With respect to the alleged exceptions taken to the ruling of the court sustaining said
demurrer, and granting said motion to strike out said portions of the answer, it appears that
the court granted said motion on the 22d day of December, 1898, and that no ruling was made
on said demurrer. It appears that no exception was taken to the order granting said motion
until the 25th day of August, 1899, over three months after the trial of the case, and over eight
months after said order and ruling were made. On that day petitioner filed his bill of
exceptions to the said order, and to an order made overruling his demurrer to the complaint,
and therein it is stated that defendant William Hyams hereby excepts to the making and
entry of each of said orders.
Section 3784, Gen. Stats., provides: During the progress of a cause a party may take his
bill of exceptions to the admission or exclusion of testimony, or to the rulings of the judge on
points of law. * * * The alleged exception was properly disallowed, it not having been taken
in proper time.
In reference to the alleged offer of counsel concerning the statutes of New York, it appears
that in the said statement, on motion for new trial, the said offer was enlarged from the offer
shown to have been made at the trial by said transcript made by the reporter, and that said
statement contained alleged facts, with respect to the exceptions of the petitioner to the
giving, the refusal to give, and to the modification of certain instructions, different from what
are contained in said transcript; yet the petitioner refers to his said statement on motion for
new trial, asks that it be considered a part of his petition, and he introduced it in evidence
herein, and in his said statement, after stating that Mrs. Warren, by agreement of the parties
and by order of the court, was appointed and authorized and duly sworn to take the testimony
in the case and report the proceedings and that she did so report the testimony and
proceedings and transcribe the same, the petitioner says that such testimony was given in
evidence and rejected, and that objections were made, and rulings made and had and
exceptions taken, as are therein set forth.
25 Nev. 242, 257 (1899) Lewis v. Hyams
Said report and transcript of the testimony, proceedings, objections, rulings, and exceptions
are as follows. Then immediately following is inserted in said statement a copy of said
transcript. We have examined said transcript and said statement several times carefully, and,
if the court refused to allow any exception which is shown by said transcript to have been
taken by petitioner as therein set forth, we have been unable to find it.
Petitioner now claims that said transcript does not set forth correctly his objections and
exceptions taken at the trial in regard to the said instructions. The said reporter, by her
affidavit, avers that, after the instructions asked and given to the jury in said action were
read to the jury by the Honorable C. E. Mack, judge of said district court, affiant took down
correctly in shorthand, and afterwards typewrote, the proceedings in the case, and exceptions
taken by the attorneys for the respective parties in said action in excepting to the instructions,
and that the following is a correct copy of her notes in shorthand taken at the time, and
typewritten by affiant, which is hereto annexed, and marked Exhibit A,' etc.
Then follows a copy of a part of said transcript containing the exceptions taken as to the
instructions. She further testifies: Affiant further says that no particular point of any
exception was taken by defendant's attorneys, or either of them, or was stated during said trial
or afterwards, and that the failure to state the ground or particular point of exceptions was the
subject of comment by W. E. F. Deal, one of plaintiff's attorneys, to affiant immediately after
said jury retired to consider their verdict. The above affidavit of the reporter is corroborated
by the affidavits of several other affiants. That the court struck out its reasons given for
refusing certain instructions in settling said statement we regard as being wholly immaterial,
and a matter we have nothing to do with in this proceeding. The said statement shows that
said instructions were refused, and that petitioner excepted to such refusal.
As to the allegations of the petition concerning defendant's instruction No. 14, it appears
that the court restored the word plaintiff, as it was in the instruction when presented to the
court and refused to be given, in place of the word "defendant," as it appeared in said
statement.
25 Nev. 242, 258 (1899) Lewis v. Hyams
court and refused to be given, in place of the word defendant, as it appeared in said
statement. This was making the statement conform to the facts with respect to said instruction
when it was refused to be given, and in so doing the court did not certainly refuse to allow the
petitioner the exception he took at the trial. The exception, as taken, was allowed.
Section 3213 of the General Statutes, on which petitioner bases this proceeding, provides:
The point of the exception shall be particularly stated, and may be delivered in writing to the
judge, or, if the party require it, shall be written down by the clerk. When delivered in writing
or written down by the clerk, it shall be made conformable to the truth, or be at the time
corrected until it is so made conformable. When not delivered in writing or written down by
the clerk as above, it may be entered in the judge's minutes and afterwards settled in a
statement of the case as provided in this act; provided, that if the judge shall in any case
refuse to allow any exception in accordance with the facts, any party aggrieved thereby may
petition the supreme court for leave to prove the same, and shall have the right so to do, in
such mode and manner and according to such regulations as the supreme court may by rules
impose, and such exceptions as are allowed by said supreme court, shall become a part of the
record of the cause.
If the petitioner had complied with the above provisions of the statute in taking his
exceptions, there could have been made at the proper time and in the manner prescribed by
statute a record of the exceptions taken, such as would have obviated any question as to what
the exceptions were and how taken.
This court would not be justified in allowing exceptions alleged to have been taken and
refused simply on the conflicting statements of witnesses based upon their memory of what
occurred, but in such case the action of the court in reference to such exceptions, in its
settlement of the statement of the case, either on motion for new trial or on appeal, or in
settling a bill of exceptions, must be regarded as being correct.
It not appearing that the court refused any exception of the petitioner as is set forth in
said transcript of the testimony and proceedings by the said reporter, and said transcript
being a record kept of said testimony and proceedings by agreement of the parties and
authority of the court, and the only record kept thereof, the petition herein must be
dismissed.
25 Nev. 242, 259 (1899) Lewis v. Hyams
the petitioner as is set forth in said transcript of the testimony and proceedings by the said
reporter, and said transcript being a record kept of said testimony and proceedings by
agreement of the parties and authority of the court, and the only record kept thereof, the
petition herein must be dismissed.
It is so ordered.
____________
25 Nev. 261, 261 (1900)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JANUARY TERM, 1900.
____________
25 Nev. 261, 261 (1900) Robinson v. Kind
[No. 1568.]
IRENE M. ROBINSON, Respondent, v. HENRY KIND
and EUGENE HOWELL, Appellants.
Practice on AppealRules of CourtMotion to Dismiss. A motion to dismiss an appeal under subdivision 1 of
rule III of the supreme court, providing that an appeal may be dismissed on motion if the transcript of the
record is not filed within the prescribed time, will be denied where the motion to dismiss is not
accompanied by the certificate of the clerk below, required by subdivision 2 of the same rule, showing
the character, date and amount of the judgment, notice of appeal, etc.
IdemIdemRight of Appellant to Have Proper Record. Any litigant has a right to have his record on appeal
furnished him for filing properly indexed as required by the rule of this court and properly certified as
required by statute, before he is required to file or offer the same for filing.
IdemTime of FilingNotice of Motion for New Trial. When an oral decision had been rendered on all of the
issues, a notice of motion for a new trial was not premature because served and filed before the findings
of fact had been made.
IdemExceptions. A paper found in the record, endorsed as appellants' exceptions to the findings, and filed
sixty days after the findings were filed, and containing exceptions which were not made or allowed as
required by statute, should be stricken out on motion.
IdemUndertaking. One undertaking is sufficient for an appeal taken both from the judgment and from an
order denying a new trial.
Res AdjudicataParties. That appellant had succeeded to the interest of other parties in the case does not make
a previous appeal binding as the law of the case as to his rights, where the parties to whose interests he
succeeded were not parties to the action at the time of the previous appeal and the decision of such appeal
was based on the refusal of the court below to make them parties.
Tenants in CommonRights in PropertyInjunction. Where a plaintiff in an action to set aside a trust deed,
executed by her jointly with others, claimed sole ownership of the property conveyed, and there was no
evidence that she was sole owner, but it appeared that those with whom she executed the deed owned a half
interest in the property, which they afterwards conveyed to the beneficiary under the deed, thereby making
him a part owner, it was error to enjoin him from claiming or asserting any title to the property, or
exercising any power or authority over it.
IdemIdemPartnersRight to Dispose of Interest. It is elementary that partners are equally entitled to the
possession, use and enjoyment of the partnership property, and that tenants in common are each entitled to
the possession, use and enjoyment of the common property, and that one tenant in common has the right to
sell and dispose of his interest in the common property as he may deem fit and proper.
Trust DeedWant of ConsiderationFraud. In an action to set aside a trust deed for want of consideration and
for the fraudulent character of the claim upon which the expressed consideration was based, where the
testimony of the claimant, that the expressed consideration was an amount due for services rendered at an
agreed salary, is uncontradicted; and where it is admitted in plaintiff's brief that the amount of $1,865 was
due the claimant; and where it appeared that the debt which the deed was given to secure was for services
which were faithfully performed under a contract signed by plaintiff, and there was no averment that the
consideration proved was inadequate, a decree for plaintiff should be reversed.
On Petition for Rehearing.
DeedsCapacity to ConveyPersons Non Compos Mentis. A conveyance by a person non compos mentis,
who has not been placed under guardianship, is voidable, and not void.
IdemIdemIdemEquity. A conveyance executed by a person non compos mentis cannot be set aside as a
nullity without protection of the equities of other parties thereto.
Appeal from the Third Judicial District Court, Eureka County; A. L. Fitzgerald, Judge.
Action by Irene M. Robinson against Henry Kind and Eugene Howell. From a judgment
for plaintiff, and an order denying a motion for a new trial, defendants appeal. Reversed.
Thomas Wren, for Appellants:
I. On the ___ day of July, 1899, and before the transcript on appeal had been filed,
counsel for respondent moved the court to dismiss the appeal upon several grounds, viz:
Because the transcript was not filed in time. Counsel did not offer in support of this ground
the certificate of the clerk required by rule III of this court. Counsel assumed on the oral
argument that the transcript had been filed when the notice of motion had been given. This
was not the fact. Soon after the appeal had been perfected the appellant requested the clerk of
the court below to furnish a transcript, but instead of doing so the clerk sent him the statement
on motion for a new trial and the other papers in the case tied up with a string. Many of the
exhibits had not been identified by the judge, although a stipulation of counsel for the
respective parties had been filed on the 19th day of January, 1899, forty days before the notice
of appeal was filed and served authorizing their identification. Efforts were made from the
time the papers first came to appellants to have the exhibits identified and a properly certified
record sent up.
II. On appeal from a judgment and an order overruling a motion for a new trial it has been
the uniform practice to give only one undertaking on an appeal of this character. The practice
should not now be disturbed. (Chester v. Bakersfield T. H. A., 64 Cal. 42; Sharon v. Sharon,
67 Cal. 185; cases distinguished in Corcoran v. Desmond, 71 Cal. 102.)
III. The notice of motion for a new trial was filed after the decision of the court. In the
engrossed statement on motion for a new trial it appears that the court rendered its decision
June 1, 1898. In the decree entered it is recited that the oral decision of the court was rendered
on the 1st day of June, 1898. The notice of motion for new trial was made after the decision
had been rendered. (Robinson v. Benson, 19 Nev. 331; Elder v. Frevert, 18 Nev. 283.)
IV. In the second finding the court finds that at the time the deed of trust was made, appellant
Howell was the agent and representative and acting for the respondent in the settlement of the
estate of the deceased husband of the said respondent. Now, there is not a scintilla of
evidence to support this finding; the only testimony in regard to the settlement of the estate
is that of Howell, and he testifies that the estate was settled in May, 1S92, more than two
months prior to the making of the trust deed.
settlement of the estate is that of Howell, and he testifies that the estate was settled in May,
1892, more than two months prior to the making of the trust deed. The court further finds that
Howell had a secret agreement and understanding with the Churches that he (Howell) should
become interested in the property and be an owner of the undivided interest therein; there is
not a particle of testimony to support this finding; on the contrary, Howell testified that the
Churches and Mrs. Robinson had agreed that, in addition to his wages, he should have an
interest in the property. There was nothing secret about it. The court further finds that at the
date of the execution and delivery of the trust deed Mrs. Robinson was not personally
indebted to Howell. There was no testimony upon this point except that of Howell, and his
testimony shows that she was indebted to him for considerable sums of money advanced to
pay creditors of the estate.
V. If fraudulent misrepresentations had been pleaded, the proof would have been
insufficient. What false or fraudulent representations did Howell make to Mrs. Robinson?
That she employed him at $200 a month is not denied; that he rendered services under that
employment is not denied; that his services amount in the aggregate to the sum charged is not
denied; that for a considerable time he charged less that she had agreed to pay him is not
denied; that he paid the money for her out of his own pocket to Dr. Williams and Harry West,
at her request, is not denied; that he gave her a receipt for $1,225, money she had not paid
him for services rendered, to enable her to make a fair record as executrix of her husband's
estate is not denied. The false and fraudulent representations were not in charging the amount
he did against this property. Was it in telling her not to go back to Seligman; that she owned
nothing there? Howell testified that, by direction of Mrs. Robinson, everything at Seligman at
a certain date had been sold at auction, and purchased and paid for by the Churches, and this
was not denied. It must be accepted, therefore, as true, but, if not true, it would be no reason
for setting the trust deed aside. (Royce v. Hampton, 16 Nev. 25; Banta v. Savage, 12 Nev.
151; Fishback v. Miller, 15 Nev. 428.)
VI. Counsel for plaintiff introduced in evidence Howell's release of the lien upon the
property under the trust deed for the amount due him.
release of the lien upon the property under the trust deed for the amount due him. Howell had
no power by his individual act to release either Mrs. Robinson or the Churches from their
obligations to each other under the trust deed, or in any way to cancel it or render it invalid.
Some time after he released his lien the Churches conveyed their interest in the property to
Howell and he now occupies precisely the position toward Mrs. Robinson and the property
that the Churches did before the conveyance to him.
R. M. Clarke, Peter Breen, and N. Soderberg, for Respondent:
I. On the first day of the July term, A. D. 1899, respondent moved the court to strike out
the transcript herein, then in the clerk's office, and to dismiss the appeals because of
appellant's failure to file transcript on the first day of the April term as required by rule II, or
at any time before June 29th; and because there is only one undertaking in support of both
appeals, and because the transcript was not indexed as required by rule IV, subdivision 3, of
this court, and did not contain the documentary evidence on which the motion for new trial
was decided; also, to strike out the statement on motion for new trial, for the reason, among
others, that the motion for new trial was interposed prematurely; also, to strike out appellant's
exceptions to the findings filed August 13, 1898, about sixty days after the findings were
filed; also, because the appeals are barred by the former decision of this court. (23 Nev. 330.)
II. After the motion was set for hearing, and without leave of the court, the record was
returned to the district court and materially altered. Thus: an index was supplied, the clerk's
certificate taken out and a new one added; the missing documentary evidence was identified
and authenticated by the district judge, and the altered record without leave of court marked
filed by appellants. Afterwards the motion was argued before the court. In answer to the
motion appellant has filed his affidavit in which he sets forth various alleged explanations for
his neglect and failure to comply with the law and the rules of this court. No showing is made
in the affidavit of accident, surprise or excusable neglect. The affidavit fails to show any
reason why the motion of respondent should not be granted.
of respondent should not be granted. It is, moreover, indefinite as to the times when the
various acts and matters therein enumerated transpired. It can, however, be ascertained
therefrom that the district judge identified the documentary evidence in July, 1899, after the
motion to dismiss was interposed.
III. There is no record on appeal which this court can consider. The one before the court
was filed without authority of law or leave of the court. The original record has been
destroyed as a record. (Supreme Court Rules II and III.) The rules of the supreme court have
the force of statute law. (Lightle v. Ivancovich, 10 Nev. 41; Haley v. Eureka Co. Bank, 20
Nev. 410.)
IV. Respondent was not required to offer, in support of her motion to dismiss, the certificate
of the clerk referred to in rule III of this court, because the transcript, though defective, was in
the supreme court at the time, and supplied all the evidence necessary for a decision of the
motion, and no attempt was made to contradict it.
V. The lack of an undertaking to support each appeal is fatal. The appeal from the order is
distinct from the appeal from the judgment. (Gen. Stats. 3363; Hayne, New Trial and Appeal,
2; Chamberlain v. Sage, 14 Wis. 193; White v. Appleton, 14 Wis. 190; People v. Center, 61
Cal. 192; Sweet v. Mitchell, 17 Wis. 125; Noble v. Strahan, 32 Wis. 317; Skidmore v. Davies,
10 Paige, 316; Centerville v. Bachtold, 109 Cal. 113, and cases cited.)
VI. The motion for a new trial was premature. After decision in our statutes means after
the filing of findings, not after the announcement of an oral opinion which may be
subsequently changed by the findings and conclusions of law. (Gen. Stats. 3204, 3216, 3217,
3219; Hayne, New Trial and Appeal, 18, 19, subd. 1; Mahoney v. Caperton, 15 Cal. 313;
Dominguez v. Mascotti, 74 Cal. 269.)
VII. The former decision of this court is a bar. Howell, for about six months before its
rendition, was the owner of the interest of the Churches. He represented the interests of the
Churches on the appeal, being their successor in interest. It was optional with him to be
substituted on the record in their place. Respondent could not compel his substitution.
substitution. Had he been so substituted the former decision must have disposed of this whole
controversy. (It is possible the costs might have been taxed against respondent.) Is Howell to
reap an advantage against respondent because he failed to disclose the fact on the former
appeal that he had bought the interest of the Churches? And how else can justice be meted out
between the parties except by holding the former decision a bar? (Gen. Stats. 2432; Supreme
Court Rule IX; Hayne, New Trial and Appeal, pp. 893, 896, 897; 21 Am. & Eng. Enc. Law,
p. 216, 220.)
VIII. The district judge had no authority to identify the documentary evidence in July, 1899,
after the transcript was lodged in the supreme court and after the motion to dismiss was filed
and served. (Gen. Stats. 3219; Bliss v. Grayson, 24 Nev. 422.)
Thos. Wren, for Appellants, in reply:
I. There is no law requiring a certificate of the clerk showing that the original statement on
motion for a new trial constitutes any part of the record on appeal. The statement on motion
for a new trial is made by law a part of the record on appeal. (Gregory v. Frothingham, 1 Nev.
253; O'Neal v. Cleveland, 3 Nev. 485; Carson v. Bryant Lumber Co., 3 Nev. 313; Johnson v.
Wells, 6 Nev. 224.)
II. The statement is pretty well authenticated as the statement on motion for a new trial. The
attorneys authenticate it and the judge authenticates it. The statute does not require the
endorsement of documentary evidence at the time they are either read or referred to on
motion for a new trial, and it is not the settled law of this court that unless exhibits and
documentary evidence are endorsed at the time as having been read or referred to they will
not be considered on appeal. The cases of Dean v. Pritchard and Albion v. Richmond Co.
only relate to affidavits. The statute provides that to identify the affidavits it shall be
sufficient for the judge or clerk to endorse them at the time as having been read or referred to
on the hearing. There is no such provision in relation to depositions, documentary evidence,
testimony taken by a reporter, or minutes of the court. (Stats. 1893, p. 89.)
III. From the evidence of Judge Fitzgerald it appears that, at the time the motion for new
trial was submitted, the exhibits were presented to the judge for identification; that some of
them, the letters especially, were in envelopes. Instead of the certificate of identification being
made upon the letters, it was made upon the envelopes containing the letters. When the
papers came to the appellant, tied up with a string, the mode of identification was noticed.
The statement was not in proper form, and it was sent back to the clerk of the district court, to
be put into proper shape, and returned. At the same time the attorney acting for appellant at
Eureka was instructed to request the judge to identify the exhibits in the envelopes, by placing
the certificate upon the exhibits. When the judge was requested to do this, he refused to do it,
until appellants' exhibits were sent to him to be reidentified in the same way. Probably the
identification in the first instance was sufficient, but certainly, under the circumstances, it
having been found necessary to send the papers back, in order to have the record put in legal
form, it was well enough to have the exhibits identified as requested, as a precaution against
the loss of envelopes, and a question in regard to the legality of the mode first adopted. The
judge finally identified the exhibits. As soon as the statement and exhibits were received by
appellant in proper shape, they were filed by the clerk, and the case was placed upon the
calendar and set down for hearing. Nobody has been injured. The argument of the case has
been delayed a short timethat is all. It would be a hard rule that would deprive a litigant of
his day in court, on account of the failure of public officers to do their duty, when the failure
can be easily remedied.
IV. It appearing from the pleadings and evidence, that the Churches owned one-half of the
property and the respondent the other half, when the trust deed was executed and when the
suit was commenced, they were entitled, as tenants in common with the respondent, to the
joint possession and control of the property. Before the second trial appellant had succeeded
to the interest of the Churches in the property, and to the right to the joint possession and
control of the property, in the event that the trust deed was declared invalid or otherwise.
declared invalid or otherwise. The decree enjoins him from this undoubted legal right, as well
as other legal rights.
V. Finally, the decree is most inequitable. Appellant has devoted a large amount of time
and spent a great deal of money to preserve the property since the trust deed was executed.
The decree does not require the respondent to repay appellant either the amount originally due
appellant, four thousand one hundred dollars, nor provide for reimbursing him for the amount
he has paid out in preserving the property.
N. Soderberg and Alfred Chartz, for Respondent, on petition for rehearing:
I. The decision heretofore rendered leaves untouched and undecided the pivotal question
in the case, without a decision of which the district court would be unable to decide the case
correctly upon a retrial. The question in the case is: What is the effect of the insanity of the
grantor of a deed, where a direct attack is made upon the validity of the deed? Is such a deed
valid, voidable, or void? The action is to set aside a trust deed upon the ground, chiefly, that
the grantor, when she executed it, was non compos mentis. The complaint avers, in the
strongest possible terms, the grantor's insanity, as a ground for annulling the deed. The
answer specifically denies her insanity. The evidence, though somewhat conflicting, by an
overwhelming preponderance, established her insanity, and the court finds her insanity to be
so established.
II. It is an admitted fact in the case that Mrs. Robinson received nothing of value upon the
execution of the deed or in consideration thereof. Nothing was paid by appellants; nothing
was received by respondent for signing it. Hence, the question of placing the parties in statu
quo cannot arise in the case. It is not pretended appellants were misled by respondent, and it
is conceded that Mrs. Robinson never affirmed or ratified the instrument, but, on the contrary,
ever since its execution, has been diligently endeavoring to have it set aside. It is, however, a
conceded fact that appellants, or rather appellant Howell, has expended moneys and
performed services in taking care of and managing the property described in the deed.
property described in the deed. It is also an admitted fact that he has, in writing, renounced
and repudiated his trusteeship under the deed.
III. Now, upon this state of facts, we submit with deference that, unless the deed of an
insane person is held to be of the same validity as that of a sane person, the vital questions in
the case are: (1) Is the deed of an insane person void or voidable? (2) Upon whom rests the
burden of proof in a case like this to show how much, if anything, the grantor must pay to the
trustee, as a condition for the annulment of the deed? Does it rest upon the insane grantor, or
the sane grantee? (3) Must there be a general accounting between the parties grantor and
grantee, covering all their business relation concerning the subject matter of the deed previous
to its execution as well as subsequently?
IV. We submit that, if the court will decide these questions, all that is said, in the opinion
filed herein in January last, in reference to the consideration for the deed, and as to whether or
not its execution was induced by the fraud of Howell, becomes unimportant. As a general
rule, the contract of a lunatic is void per se. The concurring assent of two minds is wanting.
They who have no mind cannot concur in mind with one another; and as this is the essence of
a contract, they cannot enter into a contract. (1 Parsons on Contracts, 6th ed., 383.)
V. A lunatic or insane person, being of unsound mind, is incapable of executing a
contract, deed, power of attorney, or other instrument requiring volition and understanding.
The deed executed by an insane person, or one of unsound mind, is absolutely void.
Restoration of consideration paid, if any, will not be decreed as a condition to setting it aside.
(Dexter v. Hall, 15 Wall. U. S. 9; Estate of Sarah D. Silver, 6 Penn. St. 371; Gibson v. Soper,
6 Gray (Mass.), 279; Harris v. Harris, 64 Cal. 108.)
VI. The burden of proof in cases of accounting is upon defendant. (19 N. W. Rep. 946; 6
Wall. U. S. 315.) In cases of this description the amount taken should include such property
only as passed into the hands of the grantee under the transfer. (Crowther v. Rowlandson, 27
Cal. 376.)
VII. Under this rule, the question whether there was a consideration, consisting of past
indebtedness from Mrs. Robinson to Howell, can hardly be material. What right has the court
in this case to investigate the business relations existing between her and Howell, prior to the
execution of the deed. Why should the property be subjected to a lien for her past
indebtedness to Howell? To hold that it is subject to such lien, is to hold that the deed is
valid, which no American court or law writer affirms. If the property is not subject to a lien
for her indebtedness incurred prior to the deed, then surely it is not proper, in this case, for the
court to compel an accounting of such indebtedness. If Mrs. Robinson was indebted to
Howell when the deed was executed, and Howell has not received payment, is not his remedy
in an action at law to recover what is due him perfect?
This appeal is taken from a judgment made and entered by the district court on the 16th
day of June, 1898, and from an order denying appellant's motion for a new trial made on the
2d day of February, 1899.
The appellants served and filed their notice of appeal on the 7th day of February, 1899. On
the 3d day of July, 1899the same being the first of the July term of this courtthe
respondent interposed a motion to dismiss the appeal, and to strike out parts of the record, for
various alleged defects.
This motion was at a subsequent date argued orally in open court.
On the 28th day of September, 1899, the cause was argued upon its merits, at which time
permission was granted the Roco-Homestake Mining Company, a California corporation,
claiming an interest in some of the property in controversy, through the respondent, to appear,
argue orally, and file briefs in support of the judgment and order of the district court in behalf
of said company.
Subsequently, upon the application of the Roco-Homestake Company, leave was granted it
to withdraw the appearance and briefs filed in that behalf, upon the showing that it had ceased
to have any interest in the controversy. Because of certain objections made to the record by
said company at the time of the appearance, the appellants on the Sth day of November,
1S99, asked the court to vacate its order of submission before that time made, and grant
them permission to withdraw a part of the record for the correction of the defects claimed
by the Roco-Homestake Company to be sufficient to justify the court in dismissing their
appeal.
certain objections made to the record by said company at the time of the appearance, the
appellants on the 8th day of November, 1899, asked the court to vacate its order of
submission before that time made, and grant them permission to withdraw a part of the record
for the correction of the defects claimed by the Roco-Homestake Company to be sufficient to
justify the court in dismissing their appeal.
The action of the Roco-Homestake Company in withdrawing from the cause renders it
unnecessary for us to pass upon the appellants' motion to vacate the order of submission, and
for leave to withdraw a portion of the record. It will, therefore, at this time be necessary to
determine only those points made against the record by the respondent in her motion of July
3d.
1. It is claimed by the respondent that the appeal should be dismissed because of the
failure of the appellants to file the record on appeal on the first day of the April term, 1899, as
required by rule 2 of this court. It appears as an undisputed fact, upon the showing made by
the affidavit of Howell, one of the appellants, that immediately after the appeal had been
taken he requested the clerk of the district court to furnish a record on appeal in accordance
therewith. In compliance with said demand, the clerk furnished the appellant the papers in
said cause, tied up with a string and a rubber band, and without the certificate of the clerk of
the court attached thereto, and without the papers being identified in accordance with the
stipulation between the parties.
Some time was consumed in an effort by the appellant Howell in having the record
properly made up and indexed and certified. The record in its present form was not filed in
this court until the 15th day of July, 1899. It will be observed that at the time the respondent
interposed her motion to dismiss there was no record on appeal filed in this court.
It is provided by subdivision 1, rule 3, that if the transcript of the record be not filed within
the time prescribed by rule 2, the appeal may be dismissed during the first week of the term
(that is, the term commencing thirty days after the appeal has been perfected or the statement
settled, as prescribed in rule 2), without notice. The respondent, as to this point, relying upon
the provisions of this rule, having failed to interpose her motion at the time required or
the term indicated, and having permitted one term of the court to pass after her right
under the rule had matured, may have waived her right to make the objection at the time
she did.
this point, relying upon the provisions of this rule, having failed to interpose her motion at the
time required or the term indicated, and having permitted one term of the court to pass after
her right under the rule had matured, may have waived her right to make the objection at the
time she did.
Be that as it may, she has made no showing, or effort to show, the facts required by
subdivision 2, rule 3, to be shown on such motion.
It is required by that subdivision, in mandatory terms, that on such motion there shall be
presented the certificate of the clerk below, under the seal of the court, certifying the amount
and character of the judgment; the date of its rendition; the fact and date of the filing of the
notice of appeal, together with the facts and date of service thereof on the adverse party, and
the character of the evidence by which said service appears; the fact and date of the filing the
undertaking on appeal, and that the same is in due form; the fact and time of the settlement of
the statement, if there be one; and also that the appellant has received a duly certified
transcript of the record, or that he has not requested the clerk to certify to a correct transcript
of the record, or, if he has made such request, that he has not paid the fees therefor, if the
same had been demanded.
Manifestly, the intent of these rules, as gathered from the language used, is to prevent a
litigant from delaying proceedings by failing or refusing to file the record on appeal after he
has been furnished with the proper transcript, and to prevent delay, where all the steps have
been taken necessary to an appeal in the lower court, and the litigant fails or refuses to have
made the proper transcript or record on appeal.
The facts shown in this case do not bring it within the meaning or intention of the rule. No
one of these facts was shown or offered to be shown by the respondent in the manner required
by the rule; but, on the other hand, in the same motion respondent not only fails to show that
an undertaking on appeal in due form had been filed, but attacks the form of the undertaking,
and asks that the appeal be dismissed for defects appearing in the record and in the
undertaking.
The clerk of this court, who is one of the appellants in the action, is criticised for not filing
the record on appeal as originally furnished to him, and for returning the same to the clerk of
the district court after the undisputed showing that the same was not in the form required by
subdivision 3 of rule 4 of this court, and against the direct inhibition of subdivision 4 of the
same rule, to the effect that a record which fails to conform to the rule shall not be received or
filed by the clerk of the court.
It is also urged that after the respondent's motion was set for hearing the record was taken
without leave from this court, and materially changed and altered, by supplying an index and
certificate, etc. The record, and the showing made otherwise, is to the effect that the record
was not filed until the 15th day of July, 1899.
We do not know of any rule of law or of this court that forbids or prohibits any litigant, be
he officer of the court or not, from having his record on appeal furnished him for filing,
properly indexed as required by the rule, and properly certified as required by the statute,
before filing or offering the same for filing.
It does appear from the testimony of the judge before whom the cause was tried that, after
the filing of the record, certain letters introduced in evidencepart by the appellants, and part
by the respondentwere identified by him as having been used on the hearing of the motion
for a new trial. This was done pursuant to a stipulation between the parties submitting the
motion for a new trial to the district court.
It appears that at the time of the hearing of the motion for a new trial the judge endorsed
the envelopes in which the letters had been mailed in the proper form, but did not endorse the
letters. Afterwards, and before the filing of the record on appeal, the appellants, appearing by
George A. Bartlett, Esq., attorney, requested the district judge to endorse the letters
introduced in evidence by them. This request was objected to by Peter Breen, Esq., one of the
attorneys of the respondent, unless certain letters introduced in evidence by the respondent,
which were at the time not in the possession of the court or counsel, were also endorsed as
having been used on the hearing of the motion for a new trial.
having been used on the hearing of the motion for a new trial.
Upon this showing the district judge refused to endorse any of the letters, but at a
subsequent date did endorse these exhibits of both the respondent and appellants at their
request. The appellants have shown by the written stipulation filed in said cause between the
parties that it was expressly agreed that the motion for a new trial should be submitted to the
trial court upon the engrossed statement, pleadings, records, files, exhibits, and depositions in
the case, and that all such records, files, exhibits, and depositions should be considered and
referred to as having been used upon the hearing of said motion for a new trial, and should be
endorsed by the judge as having been so used.
It does not appear in any manner that any of the exhibits so endorsed by the district judge
were not of those expressly included in the stipulation; and it appears that the failure of the
judge to endorse the same was one of those excusable mistakes for which the appellants
should not be held, and that the subsequent endorsement was made with the consent of the
respondent, who also asked and received a like favor, in keeping with her stipulation. We are
not willing to dismiss the appeal, as asked by the respondent, for this reason.
2. It is claimed by the respondent that the appeal should be dismissed because the notice
of motion for a new trial was interposed prematurely. The notice of motion for a new trial
was served and filed on the 15th day of June, 1898. The respondent contends that as the
findings of fact were made and filed on the 16th day of June, 1898, under a line of decisions
of the Supreme Court of California the notice of motion for a new trial was given
prematurely, and the appeal from the order denying the new trial should therefore be
dismissed.
The rule relied upon under the statutes of California does not prevail in this state, and has
been so expressly decided. The judgment and decree made and entered in the action recite,
among other matters, that the court rendered its oral decision in favor of the respondent upon
all the issues on the 1st day of June, 1898. In effect, the same statement is recited in the
statement on motion for a new trial.
This court, in passing upon a question similar to the one at bar, uses the following
language with reference to the difference between the rules prevailing in this state, under our
statute, and the rule prevailing in California:
This case was decided under a statute of the State of California providing that a party
intending to move for a new trial should give notice thereof within ten days after receiving
written notice of the filing of the findings of the commissioner, referee, or court, when written
findings are filed by the court, or of the rendering of the decision of the court, when no
findings are filed, * * * and, when amendments are filed, to remedy defects in the findings
within ten days after receiving written notice of the filing of such amendments. * * * The
statute of the State of Nevada requires the party moving for a new trial to give notice of his
intention within ten days after receiving written notice of the rendering of the decision by the
judge.' * * * Unless the decision here spoken of is tantamount to the findings which the
court may be required to make, the contention cannot prevail. The finding of facts
contemplated by the statute is the written statement of each issuable fact established by the
evidence. From these determined facts the conclusion of law is deduced. The decision is the
announcement by the court of its judgment, and, although based upon the settled facts of the
case, such facts may never be reduced to writing, so as to constitute findings,' within the
meaning of that term as used in the civil practice act. It is a matter of frequent occurrence for
courts to announce judgment, and afterwards to prepare the findings. The decision may be
rendered after or before the filing of findings, or, as is frequently the case, no findings may be
made. The decision is therefore, distinct from the findings, and the time within which notice
of intention to move for a new trial must be given begins to run from the announcement of
the judgment. (Elder v. Frevert, 18 Nev. 283, 3 Pac. 238.)
The rule announced in the case above cited was followed and approved in Robinson v.
Benson, 19 Nev. 331, 10 Pac. 441. Even under the rule announced by the California court, it
becomes a question whether the respondent has not waived her right to interpose this
objection at this time, after having stipulated relative to the extension of time within which
the statement on motion for a new trial and amendments thereto should be served and
filed, and by her stipulation submitting the motion for a new trial.
having stipulated relative to the extension of time within which the statement on motion for a
new trial and amendments thereto should be served and filed, and by her stipulation
submitting the motion for a new trial.
3. The respondent also by her motion asks us to strike out that certain paper found in the
record, and endorsed as appellants' exceptions to the findings, filed the 13th day of August,
1898, or about sixty days after the findings were filed. This motion must be sustained. These
so-called exceptions were neither made nor allowed in the manner or at the time required by
the statute. Moreover, the statement on motion for a new trial, as settled and allowed by the
district judge, and agreed upon by the parties, contains the written findings, and exceptions
taken thereto.
Further, it is provided by section 193 of the civil practice act that when a cause has been
tried by the court or by referee, and the decision or report is not made immediately after the
closing of the testimony, the decision or report shall be deemed excepted to, on motion for a
new trial or on appeal, without any special notice that an exception is taken thereto. (Gen.
Stats. 3215.)
4. It is claimed that the undertaking on appeal is not sufficient to support the appeal from
the judgment and order; that, in effect, there are two appeals, and, in order that each be
effectual under the statute, each must be supported by the undertaking required by section 341
of the civil practice act. (Gen. Stats. 3363.)
Without entering into a discussion of what would be a strict compliance with the
requirements of this section, it is a sufficient answer to the contention of the respondent to say
that it has been, as we believe, the universal course of practice, in appeals taken from a
judgment and order denying a motion for a new trial at the same time, to give but one
undertaking in support of such appeals, under this section.
In this matter we have followed the rule which prevails in California, under a statute
similar to our own, and from which, it is said, our statute was copied. The supreme court of
that state, as early as 1883, in passing upon a question identical with the one raised by this
motion, uses the following forceful language: "The practice of filing but one undertaking,
when the appeals are taken, as in this case, both from the judgment and order denying a
new trial, is about as well settled as any question of that kind can be, and we do not think
that it should now be treated as an open one."
ing forceful language: The practice of filing but one undertaking, when the appeals are
taken, as in this case, both from the judgment and order denying a new trial, is about as well
settled as any question of that kind can be, and we do not think that it should now be treated
as an open one. (Chester v. Association, 64 Cal. 42, 27 Pac. 1104.)
The rule has since been approved by that court, and in one case, decided as late as 1895,
the following language in approval thereof is used: It is the settled rule of practice in this
court, when an appeal is taken from two or more orders, or from a judgment and order,
whether the notice of such appeal is given in separate notices or in one instrument, the
appellant must file the jurisdictional undertaking for three hundred dollars for the appeal from
the judgment and from each of the orders appealed from, except in the single instance of an
appeal from a judgment and an order denying a new trial. (Ditch Co. v. Bachtold, 109 Cal.
113, 41 Pac. 813. See, also, Corcoran v. Desmond, 71 Cal. 102, 11 Pac. 815.)
For these reasons, we deem it not proper to disturb the rule of practice that has been so
long and so universally accepted and acted upon by the courts of this state, and are of the
opinion that less harm will result in following the interpretation given to the statute by such
acquiescence of the courts in the rule and practice as declared in the opinion above cited upon
a statute similar to our own, and of which ours is a copy.
5. The respondent also contends that the decision of this court upon the former appeal of
this action is a bar to any further appeal, and therefore this appeal should be dismissed. The
opinion of the court upon the former appeal will be found in 23 Nev. 330, 47 Pac. 1, 977. As
the basis of this claim, respondent contends that as the record in this case shows that the
appellant Howell had after the first trial and judgment in the district court, and while such
appeal was pending, become the successor in interest of the Churches to the property in
controversy, all matters are res adjudicata, under rule 9 of this court and certain general rules
of equity.
The cause was reversed on the former appeal because of error in the refusal of the district
court to make the Churches parties to the action.
parties to the action. Rule 9 of this court in no wise supports this contention. In direct
language, it provides that, upon the death or other disability of a party pending an appeal, his
representatives shall be substituted in the suit by suggestions in writing to the court on the
part of such representatives, or any party to the record, upon which an order of substitution
shall be made, and the cause shall proceed as in other cases.
It was not suggested on the former appeal, nor was it a fact, that any one of the parties
thereto pending such appeal had either died, or become subject to any disability. In fact, the
Churches were not parties to the action, as above stated, and the cause was reversed because
of the refusal of the district court to make them parties.
We are not aware of any rule of law or of equity, or of this court, that would justify this
court in making new parties to an action on appeal, other than the one above indicated. Such
order of this court would necessarily imply that the court would have the power, after making
new parties, to hear and determine any matter affecting their interests; otherwise, the order
would be useless.
Neither are we able to understand by what course of reasoning the court would be justified
in sustaining the respondent's motion based upon the general rule of equity, applied to the
facts shown by the record on this and the former appeal, to the effect that in equitable
proceedings all equitable claims and defenses should be set forth, and, if anything which
might and should have been submitted is omitted for any cause, it will afterwards be too late
to hear it, and it will be regarded as having been adjudicated. At the time the record on appeal
was made at the first trial, the Churches were not parties to the action, and the appellant
Howell had not succeeded to their interests; and the trial court could not at that time have
rendered any judgment affecting their rights or interests in the property in controversy, nor
could it at that time have rendered any judgment affecting the rights and interests of Howell
as the successor to the Churches.
The motion to dismiss will therefore be overruled.
Having considered all the objections of the respondent to the record, presented in her
brief, we come now to a consideration of the cause on its merits.
the record, presented in her brief, we come now to a consideration of the cause on its merits.
The respondent sought by this action to set aside and annul a certain deed of trust, and to
perpetually enjoin the appellants from asserting or acting or claiming under the same, and
from leasing, operating, incumbering, or in any manner disposing of, conveying, using, or
selling, the property mentioned in said trust deed, or any part thereof.
The deed was executed on the 2d day of August, 1892, by the respondent and James A.
and E. D. Church, to the appellant Henry Kind, and conveyed to him and his heirs and assigns
certain real and personal property therein described, upon trust, nevertheless, and to and for
the uses, interests, and purposes hereinafter limited, described, and declared; that is to say,
upon the sale of any or all of said property, the proceeds thereof shall be applied first to the
payment of the running expenses incurred upon said property, the wages of watchmen, and
taxes, and on the claim of Eugene Howell against said parties of the first part for advances
and salary up to May 31, 1892, as the same appears charged upon the books of Robinson,
Church & Co., but the amount not to exceed four thousand one hundred dollars. Said Eugene
Howell to have possession and charge of the property as manager, as heretofore, and to work,
sell, or lease all or any of said property he may deem best, and for the best interest of the
respective parties, but to receive no compensation for his services. Said Eugene Howell to
keep a correct set of books of all receipts from said property, and all expenditures thereon,
and to furnish said party of the second part vouchers for all moneys expended upon said
property. Whenever said Eugene Howell shall be paid in full, and all other payments shall be
fully made as hereinbefore provided, said party of the second part shall reconvey unto the said
parties of the first part all or any of said property that may remain unsold to the said parties of
the first partone-half to the said Irene M. Robinson, and one-half to said James A. and E.
D. Church; said Irene M. Robinson hereby releasing any and all claims she may have against
said James A. and E. D. Church in consideration of the conveyance of one-half of said
property to her as aforesaid.
The respondent in her complaint alleges, in effect, that on the 1st day of August, 1892, she
was the owner of the property therein described, consisting of real and personal property; that
on said date she was sick in body and mind, and was in condition of both physical and mental
derangement, was not compos mentis, and had not the capacity to manage her said property or
transact business concerning the same, and was mentally incapacitated to make and execute,
or comprehend the meaning of, said trust deed; that the appellant, well knowing the premises,
and being fully advised concerning her physical and mental condition, and her inability to
care for said property, and well knowing that she did not understand or comprehend, and had
not the mental capacity to execute, the said instrument, falsely and fraudulently, and without
consideration, and with intent and for the purpose to cheat and defraud her out of said
property, and with a false and fraudulent intent and purpose to acquire the legal title thereto,
and the power to manage and dispose of the same, falsely and fraudulently did cause and
procure her to make, execute, and deliver said trust deed and conveyance for the purposes
mentioned, and upon the false and pretended claim of the appellant Howell, charged upon the
books of Robinson, Church & Co. for an amount not to exceed $4,000, and caused and
procured the respondent, by such deed, falsely, fraudulently, and knowingly, to appoint said
Howell to have charge of said property, and manage, work, sell, and lease the same, or any
part thereof, as he might deem best, and apply the proceeds arising from such property in
payment of expenses and the alleged indebtedness to Howell, and when said Howell should
be paid, and all other payments provided for in said instrument should be made, to convey the
said property, or the portion thereof remaining, one-half to the respondent, and one-half to
James A. and E. D. Church.
It is further alleged that the appellants are proceeding to execute the terms of said
fraudulent instrument; that they have taken possession, and are now in possession and
control, of said property, under said instrument, and have advertised it for sale at public
auction, etc. The deed of trust is annexed to the complaint, and made a part of the same.
same. After the reversal of the judgment on the former appeal, the respondent filed what is
called a supplemental complaint, in which she alleges: The said James A. Church and E.
D. Church mentioned in the complaint in said action, to wit, on the 13th day of January,
1896, conveyed all their, and each of their, right, title, and interest of, in, and to the property
described in the trust deed set forth in said complaint to the said defendant Eugene Howell,
and by reason of said conveyance the said James A. and E. D. Church have no longer any
interest in this action.
It is further alleged therein that the appellant Howell commenced an action against the
Churches on the 2d day of May, 1895, in the district court of this state, to recover a judgment
against them for the sum of $5,700, mentioned in said trust deed as being due and owing to
him, and thereafter recovered a judgment for that amount.
The appellants by their joint answer denied that the respondent was the sole owner of the
property described in the complaint, but admitted and alleged that she was the joint owner of
said property with the Churches.
They further specifically denied the physical sickness of the respondent, and the mental
incapacity to manage her property, or to transact business concerning the same, at the time of
the execution of the said trust deed, and that she was mentally incapacitated to make, execute,
and comprehend the meaning of said trust deed at the time she executed the same.
They further specifically deny all the material allegations of the respondent's complaint,
and allege affirmatively that, after said trust deed was prepared in all its details, she took time
to consider the same before its execution; that the agreement upon which said trust deed was
based was in all respects fair and honest, and for the best interest of all parties named
thereinwas founded upon a valuable consideration; that they had in all respects carried out
the provisions of said deed in a just, fair, honest, and honorable manner; that Howell had
endeavored to sell said property, or a portion thereof, for the purpose of fairly carrying out the
provisions of said instrument, and had endeavored to obtain the best possible price for said
property, and had never offered said property for sale for an inadequate price; that the
claim of Howell charged upon the books of Robinson, Church & Co. was a good, valid, and
honest claim for services rendered by him; that the respondent, at the time said trust
deed was made and executed, well knew that said claim was fair and just, and that the
Churches were the joint owners of said property with the respondent; that the property
needed constant care of some one, to see that it was not wasted or destroyed, that the
assessment work was done upon the mines described, and that the taxes upon the same
were regularly paid; that, for a long time prior to the execution of the trust deed, Howell
had been in the employment of the respondent in the management of said property, and
in the settlement of the estate of Eugene N.
said property for sale for an inadequate price; that the claim of Howell charged upon the
books of Robinson, Church & Co. was a good, valid, and honest claim for services rendered
by him; that the respondent, at the time said trust deed was made and executed, well knew
that said claim was fair and just, and that the Churches were the joint owners of said property
with the respondent; that the property needed constant care of some one, to see that it was not
wasted or destroyed, that the assessment work was done upon the mines described, and that
the taxes upon the same were regularly paid; that, for a long time prior to the execution of the
trust deed, Howell had been in the employment of the respondent in the management of said
property, and in the settlement of the estate of Eugene N. Robinson, late husband of the
respondent, and that said trust deed continued said Howell in the management and control of
said property, and for the payment of his services rendered the owners of said property, and
for the equitable division thereof remaining after the discharge of the trust created.
They further allege that the expenses and charges created by them under the terms of the
trust deed are necessary to preserve the property and to carry out its provisions. The above, in
brief, are the material averments of the answer necessary to be considered in determining the
question presented under the assignment of errors. Afterwards, the appellants, answering the
supplemental complaint, admitted the conveyance by the Churches of their interest in the
property described in the trust deed to the appellant Howell, and also the recovery of the
judgment against the Churches for $5,700.
A retrial of the issues made was had before the court, and a judgment and decree were
rendered in favor of the respondent, in which it was recited that on the 1st day of June, 1898,
the court rendered its oral decision in favor of the respondent upon all the issues, and therein
decreed that the trust deed was constructively fraudulent and void, and that the same be
canceled, annulled, invalidated, and set aside; and the appellants, and each of them, were
perpetually enjoined from claiming, holding, or asserting any title, right, or exercising any
power or authority, over or concerning the property described in said deed, and from making,
executing, or delivering any conveyance of said property, or any portion thereof, and from
selling, delivering, or otherwise disposing of said property, or any part thereof, and from
in any manner interfering with said property, or with the use and enjoyment thereof, and
the said appellants are directed to surrender the said property to the respondent.
or delivering any conveyance of said property, or any portion thereof, and from selling,
delivering, or otherwise disposing of said property, or any part thereof, and from in any
manner interfering with said property, or with the use and enjoyment thereof, and the said
appellants are directed to surrender the said property to the respondent. There is a further
judgment against them for costs.
The appellants assigned several errors as a reason for the reversal of the order and
judgment appealed from, but we do not deem it necessary to consider all the assignments.
Among other matters, it is claimed that the evidence is wholly insufficient to justify the
judgment and decree of the court, and that the decree and judgment of the court, as entered,
are in excess of the jurisdiction in proceedings of this character, under the pleadings, and that
the court erred in enjoining the appellants from disposing of such property, or in any way
interfering therewith.
The first matter, then, that will be considered, is the insufficiency of the evidence to justify
the decree. It will be noted that the respondent claims the ownership of the property on her
complaint. By the supplemental complaint, filed to avoid the effect of the reversal of the
judgment on the former appeal, which reversal was based upon the refusal of the court to
make the Churches (who were parties to the trust deed, and assumed to convey thereby some
interest in the property upon the consideration and for the purposes therein specified) parties
to the action, the respondent simply avers the conveyance of the right, title, and interest in and
to the property to the appellant Howell by the deed of January 13, 1896.
The appellants by their joint answer denied the sole ownership of the respondent, and set
up affirmatively the joint ownership of the property in the respondent and the Churches. By
their answer to the supplemental complaint they admit the conveyance by Churches to Howell
of the interest which the Churches held in the property. Under the averment of ownership in
the complaint, so far as the record shows, there is not one word of evidence, record or oral,
that would justify the court in deciding that the respondent was the sole owner of the
property, and decreeing that Howell, one of the appellants, admitted and alleged to have
succeeded to the interest of the Churches in the property under the conveyance of
January 13, 1S96, be perpetually enjoined from claiming, holding, or asserting any title or
right, or exercising any power or authority, over or concerning the property, and from
making, executing, or delivering any conveyance of said property, or any portion thereof,
or otherwise disposing of said property, or any portion thereof, and from in any manner
interfering with said property, or with the use and enjoyment thereof, and directing him
to surrender said property to the respondent.
Howell, one of the appellants, admitted and alleged to have succeeded to the interest of the
Churches in the property under the conveyance of January 13, 1896, be perpetually enjoined
from claiming, holding, or asserting any title or right, or exercising any power or authority,
over or concerning the property, and from making, executing, or delivering any conveyance
of said property, or any portion thereof, or otherwise disposing of said property, or any
portion thereof, and from in any manner interfering with said property, or with the use and
enjoyment thereof, and directing him to surrender said property to the respondent.
The last will of Eugene N. Robinson, deceased, through whom, and under which,
respondent claims title to the property, makes her his sole residuary legatee. The inventory
filed by the respondent as executrix of the estate of Eugene N. Robinson, as a record in the
settlement of said estate, shows that the Churches were the owners of a one-half interest in
some of the property, if not all, described in the trust deed. The respondent, by her written
power and authority as executrix of said estate, and as the attorney in fact of the Churches,
hereinafter set out and referred to, confesses the interest of the Churches in part of this
property.
It is conceded that Howell took possession of all the property as agent of the respondent,
who was the executrix and the sole residuary legatee of the last will of Eugene N. Robinson,
deceased, and as the agent and attorney in fact of the Churches, surviving partners of the firm
composed of Eugene N. Robinson and James A. and E. D. Church, under the written power
and authority given to him by the respondent. It is also conceded that, at the time of the
execution of this written authority to Howell by the respondent, she held power from the
Churches as their attorney in fact, and thereafter much of the partnership property included in
the inventory was sold, and the proceeds applied to the payment of the partnership debts, and
the debts of the estate of Eugene N. Robinson.
These facts are not disputed.
If the Churches were ever divested of their title, or divested themselves of their title, to this
property, except by the trust deed and the conveyance to Howell executed on the 13th day of
January, 1S96, referred to in the supplemental complaint, the record does not disclose it.
Indirectly it is shown by the evidence of the respondent that Henry Rives, Esq., her
attorney in the settlement of the estate of Eugene N.
of January, 1896, referred to in the supplemental complaint, the record does not disclose it.
Indirectly it is shown by the evidence of the respondent that Henry Rives, Esq., her attorney
in the settlement of the estate of Eugene N. Robinson, had told her, a short time before the
execution of the trust deed, at Eureka, Nevada, that the property all belonged to the Churches.
She also testified that Howell had said the same thing, in effect, to her. The above is the only
direct and indirect evidence in relation to the ownership of the property in the record.
This evidence shows, if it shows anything, that the Churches had some interest in the
property, which vested in Howell under the deed of January 13, 1896.
We know of no rule of law or of equity, under the showing made in this action, that would
warrant a decree so broad and far-reaching in its effectsa decree enjoining a part owner of
property from selling or disposing of his interest therein, from claiming, holding, or asserting
his title or right thereto, or exercising any power or authority over or concerning, the same, or
from making or delivering a conveyance of his interest in said property, or any portion
thereof, or from in any manner interfering with said property, or with the use and enjoyment
of the same, and directing him to surrender said property to his coowner.
We have been unable to find such rule of law or equity. We have not been cited to any
such rule, and we do not believe such a rule exists.
It is elementary that partners are equally entitled to the possession, use, and enjoyment of
the partnership property, and that tenants in common are each entitled to the possession, use,
and enjoyment of the common property, and that one tenant in common has the right to sell
and dispose of his interest in the common property as he may deem fit and proper.
The other issues presented by the pleadings, and necessary to be considered under this
assignment, are the want and entire absence of consideration in making the trust deed, and the
alleged fraudulent character of the claim of the appellant Howell for $4,100, named therein,
for services rendered, as one of the considerations for its execution. The determination of the
question of the want of consideration necessarily involves the determination of the
fraudulent character of the claim for $4,100.
tion of the question of the want of consideration necessarily involves the determination of the
fraudulent character of the claim for $4,100.
The court, in its written findings, practically said there was nothing due the appellant
Howell on this account.
From the recitals of the decree as to the decision of the court, it appears that the court must
have found, not only that there was nothing due Howell on this account, but that the trust
deed was entirely without consideration, as alleged in the complaint.
With the admission of respondent in her brief, and the showing made by the testimony in
the record, we are unable to understand by what process, and upon what proven facts, the
court reached this conclusion.
It is admitted in her brief that at the time of the settlement of the estate of Eugene N.
Robinson there was due to Howell, under Mrs. Robinson's employment $1,225, for which
Howell gave his receipt, but which was not paid.
It is further admitted that, in addition to this sum, Howell advanced, to pay the debts of the
estate, $640; making a total amount of $1,865 due Howell on that account, under the
employment of the respondent.
It is shown by the record, with reference to this employment and the amount to be paid
therefor, that on the 21st day of October, 1890, the respondent, as executrix aforesaid and as
attorney in fact of the Churches, by written power and authority, employed Howell as agent
and manager, to personally supervise and attend to all business affairs and accounts, of every
manner and description, pertaining and belonging to all property and property interests
situated in White Pine county, Nevada, belonging to the estate of E. N. Robinson, and to the
firm or partnership of Robinson and the Churches, the surviving partners whom the
respondent represented as attorney in fact, for which she agreed to pay to Howell the sum of
$200 per month, to commence from July 15, 1889. (Record, vol. 1, p. 79.)
It is further shown that the respondent on the 27th day of January, 1891, gave to Howell
another written authority to act for her in these matters as executrix, by which she agreed to
pay to him $50 per month, to take effect from March 1, 1S90, "and to be in addition and
exclusive of any amount previously agreed to be paid to him for attending to the business
of Robinson, Church & Co., or for the estate of E. N. Robinson."
1890, and to be in addition and exclusive of any amount previously agreed to be paid to him
for attending to the business of Robinson, Church & Co., or for the estate of E. N. Robinson.
(Record, vol. 1, p. 78.)
It is not denied, and there is not even a pretense of a denial, that the appellant Howell
rendered services in accordance with his employment faithfully up to the settlement of the
estate of Eugene N. Robinson, on the 31st day of May, 1892, and even up to the date of the
execution of the trust deed.
A careful search of the record discloses the following and only facts relating to the claim
of $4,100 named in the trust deed, and secured by the property therein described, by the terms
thereof.
The only witness who testified as to the amount and character of this claim was the
appellant Howell, called by the respondent to testify in support of the issues in her behalf:
The sum specified in the trust deed was for my services. The services performed were under
authorization of Mrs. Robinson and the Churches. The amount was the balance due to me up
to the time of the execution of the trust deed. Mrs. Robinson agreed to pay me two hundred
dollars a month for my services. I worked for that salary a portion of the time, but during the
last year, previous to the execution of the trust deed, of my own volition I cut my salary down
to one hundred and fifty dollars a month. While I was in the employ of Mrs. Robinson, I
managed the entire business of preserving the estate and settling it up. I paid off eighteen
thousand dollars of debts against the estate, and paid all claims against the estate west of the
Rocky Mountains, dollar for dollar. The most of this money I obtained from the sale of
property at Seligman. * * * The amount named in the trust deed, of forty-one hundred dollars,
is for balance due me up to May 31, 1892. (Record, vol. 2, pp. 3, 4, 5.)
This was testimony on behalf of the respondent. No contradiction of it is found in the
record. The respondent does not contradict it in her testimony. In fact, she testifies to no
matter relating to the employment, wages to be paid, or amount due Howell on account
thereof, directly; and her indirect testimony relative to these matters in effect corroborates
Howell as to his employment, and the services rendered thereunder during all these
years.
indirect testimony relative to these matters in effect corroborates Howell as to his
employment, and the services rendered thereunder during all these years.
As to the value of the property the record is silent, other than is shown by the inventory
filed as one of the records in the estate of Eugene N. Robinson, deceased, by the respondent,
referred to in another part of this opinion. Much of the property included in the inventory,
before the execution of the trust deed, had been sold. No value is placed upon the property
either by the averments of the complaint or the answer. That there was, so far as the
respondent is concerned, a valuable consideration of $1,865 for the execution of the trust
deed, is, as above stated, admitted by the respondent on this appeal.
That there was a consideration for the execution of the trust deed, so far as both the
respondent and the Churches are concerned, of $4,100, is shown by the evidence of Howell;
and such evidence was not contradicted, but was corroborated by the written employment
from the respondent and the Churches, and by the undisputed facts relating to the services
rendered under such employment from July 15, 1889, to the date of its execution. How, then,
can we hold upon that evidence that the trust deed was without consideration, or, in the
absence of averment or proof of value, that the consideration named and proved was
inadequate?
In this connection we desire to call attention to one other matter presented in the record,
involving the equities of both the appellants and the respondent under the pleadings and the
proven facts. It is alleged in the answer, as a further and other consideration for the execution
of the trust deed, that the property needed the constant care of some person, to see that it was
not wasted or destroyed, that the assessment work was done upon the unpatented mining
claims, and that the taxes were regularly paid upon said property, etc.
It was shown conclusively, and no effort was made to dispute such showing, that since the
execution of the deed Howell had paid out in cash on account of taxes assessed against the
property more than $700, and on account of a watchman more than $2,200.
It is a well-settled rule in equitable proceedings that relief should be granted only upon
equitable terms; and without entering upon further discussion of the law, or the necessity
of a further showing as to these payments by supplemental pleadings, it seems to us,
considering the nature and character of these payments, and the condition of the title as
shown by the record, that the decree should, under the rule, in some manner dispose of
these claims.
should be granted only upon equitable terms; and without entering upon further discussion of
the law, or the necessity of a further showing as to these payments by supplemental pleadings,
it seems to us, considering the nature and character of these payments, and the condition of
the title as shown by the record, that the decree should, under the rule, in some manner
dispose of these claims. It is therefore clearly apparent from the record that the decision of the
court that the trust deed was without consideration, and that the claim for $4,100 for services,
named therein as a consideration, was fraudulent and pretended, is not only not supported by
the evidence, but is contrary thereto, and is contrary to the admission of the respondent made
in her brief on this appeal.
The appellants also contend that the finding of the court to the effect that Howell was at
the time of the execution of the trust deed the attorney in fact of James A. and E. D. Church,
and at said time had a secret agreement with them that he should be interested in the property,
is contrary to, and not supported by, the evidence. We confess that we fail to understand the
force and effect of this finding, as applied to the issues made by the pleadings. The
respondent does not aver any fraudulent act or representation having been made by the
Churches, or that they were in any manner parties to any fraud in this transaction.
Aside from this, the only evidence offered, so far as we have been able to ascertain by a
diligent search of the record, upon which the finding could be based, is found in the testimony
of Howell to the effect that Mrs. Robinson and the Churches had agreed to give him one-third
interest in the property in addition to his claim against the property. This statement was not
contradicted. If it were possible, under the record, to adjust and preserve the equities of the
parties in the property, taking into consideration the condition of the title, and to modify the
decree so as to preserve those equities, we would deem it necessary to consider the other
objections made by the appellants.
Believing it not to be possible to modify the decree without possible wrong to either the
respondent or the appellants, and it appearing that the delay and expense of a new trial is the
only proper and just way of preserving all the equities, the judgment and the order
appealed from will, for the reasons above given, be reversed.
is the only proper and just way of preserving all the equities, the judgment and the order
appealed from will, for the reasons above given, be reversed.
upon petition for rehearing.
The respondent, in her petition for rehearing, argues, in effect, that a conveyance by a
person non compos mentis is void, and not merely voidable; and that, when the incompetency
of the grantor is shown, nothing remains for the court to do except to decree the nullity of the
conveyance without regard to the equities of the other parties thereto. Respondent's complaint
was not drawn, the cause was not tried, and was not presented to this court upon this theory of
the law.
It is not necessary to repeat again the issues made, and the evidence in support thereof, as
to the ownership of the property, consideration for the conveyance, the undue influence
alleged to have been exerted, and the fraud practiced in this action, as those matters were
fully stated in the original opinion. We believe it is the settled law in nearly all of the
American states that a conveyance of a person non compos mentis, who has not been placed
under guardianship, is not void, but merely voidable. An exhaustive list of cases so holding
will be found in the note to Riley v. Carter (Md.), 19 L. R. A. 489. An examination of these
cases also shows that such was the rule of the common law, and we have been unable to find
any provision of our statutes which in any manner modifies or abrogates this doctrine.
As to the further claim that where the grantor is shown to be non compos mentis at the
time of the execution of the conveyance, but not under guardianship, keeping in mind the
condition of the parties hereto, the title of the property, the consideration for the conveyance,
the undue influence and fraud alleged to have been practiced, as shown by the record, and
without expressing any opinion as to what equities of the appellants should be protected and
preserved by the decree, because of the unsatisfactory condition of the record, we are of the
opinion that it is the duty of courts exercising equitable jurisdiction in actions of this
character to grant relief upon equitable terms and conditions only.
This is an action in equity, in which the extraordinary, and, to a certain extent,
discretionary, jurisdiction of the court is invoked to set aside a deed. A court of equity, when
its jurisdiction is invoked to set aside deeds and contracts of a person upon the ground of
insanity, acts upon equitable principles. It is by no means a matter of course for a court of
equity to set aside and declare void the act of a lunatic executed during his lunacy. It does so
in no case except upon equitable termsupon the universal maxim of that court that he who
seeks equity must do equity. As, for instance, where conveyances have been obtained from a
lunatic at a great undervalue, with reason to believe actual fraud on the part of the grantee, yet
the amount actually paid must be refunded as a condition of relief. * * * The court of
chancery,' says Mr. Shelford, will not, as a matter of course, interfere to set aside contracts
entered into and completed by a lunatic, even though they be void at law, but the interference
of the court will depend very much upon the circumstances of each particular case; and where
it is impossible to exercise the jurisdiction in favor of the lunatic so as to do justice to the
other party, the court will leave the lunatic to his remedy, if any, at law.' (Canfield v.
Fairbanks, 63 Barb. 465.)
This doctrine is also supported by the following decisions, which we do not deem
necessary to review: Brown v. Miles, 61 Hun, 453, 16 N. Y. Supp. 251; Gribben v. Maxwell,
34 Kan. 8; Yauger v. Skinner, 14 N. J. Eq. 389; Riggan v. Green, 80 N. C. 237; Pearson v.
Cox, 71 Tex. 246; Copenrath v. Kienby, 83 Ind. 18; Fay v. Burditt, 81 Ind. 433.
We have refrained from discussing or in any manner expressing an opinion under the
assignments upon the sufficiency of the evidence to support the finding that the respondent
was at the time of the execution of the trust deed non compos mentis.
It would be useless, as the form of the decree and the condition of the record, as shown in
the former opinion, are such as to preclude the modification of the judgment upon equitable
terms; and, as a retrial is necessary for the adjustment of the rights of the parties (apparent, at
least, from the record now before us), the petitions of both the appellants and respondent
for a rehearing will be denied.
record now before us), the petitions of both the appellants and respondent for a rehearing will
be denied.
____________
25 Nev. 293, 293 (1900) Paul v. Cragnaz
[No. 1565.]
FRANK PAUL, Respondent, v. ROCCO CRAGNAZ,
Appellant.
Practice on AppealRecordIrrelevant Papers. Papers sent up on appeal, other than those which the statute
specifies shall constitute the record on appeal, should be stricken out on motion.
IdemNotice of AppealClerical Error. Appellant's notice of appeal from an order denying a new trial recited
that the order appealed from was made and entered on the 11th day of May, whereas the order was made
and entered on the 10th day of May: Held, that the notice was sufficient.
IdemUndertakingClerical Error. The undertaking filed on an appeal from an order dated May 10th,
denying a new trial, referred to the order as having been made and entered May 11th: Held, not ground
for dismissing the appeal, where the undertaking otherwise clearly identified the order appealed from,
and the mistake was simply a clerical error.
IdemIdemTime of Execution and Filing. Since the execution of an undertaking on appeal is not complete
until it is delivered by filing it with the clerk, the fact that an undertaking was prepared and completed,
ready for filing, before the notice of appeal was filed, does not render it insufficient when it was not
actually filed until the proper time after the notice of appeal was filed.
IdemStatementExceptions. Where the statement of the case does not show that the errors complained of
were reserved by objections or exceptions at the trial, they will not be considered on appeal.
LeaseForm Of. Plaintiff brought action as lessee of the owners of an undivided one-third interest in a mine,
under an instrument which recited that it leased unto plaintiff a one-third interest in the mine for one year,
the provisions of this lease to be as follows: The party of the second part hereby agrees to work said
mine in a workmanlike manner, and to pay the party of the first part royalty from all ores taken out * * *
from the mine by the party of the second part, during the continuance of this lease: Held, that the
instrument was a lease granting an undivided one-third interest in the mine for the term of one year, and
was not a mere license.
OusterRight of Possession of Lessee of Cotenant. Defendant, the owner of an undivided two-thirds interest in
a mine, refused to permit plaintiff, who was his cotenant's lessee, to enter into possession of the mine, or
to permit him to work the mine at a different level from where defendant was working, and threatened
bodily injury to plaintiff if he entered the tunnel leading to the ore bodies then developed: Held, sufficient
to support a finding of an ouster of plaintiff by defendant.
IdemIdemRight of ActionAccountingDamages. Where plaintiff was lessee of an undivided one-third
interest in a mine under a lease from the owners of said interest, and the defendant, who the owner of the
remaining two-thirds interest, refused to permit him to enter into possession and work the mine, or any part
thereof, plaintiff was not confined to an action for an accounting of the profits received by defendant
during the term of the lease, but could maintain an action against defendant for damages, based on loss of
profits that plaintiff would have made but for the ouster.
DamagesProbability of Profits. In an action against the owner of an undivided two-thirds interest in a mine
for excluding a lessee of the other undivided one-third interest therefrom, where it was shown that plaintiff
was a practical miner, and that there was reasonable probability that he would have mined sufficient ore
during the term of the lease to have yielded him a profit of about $14,000 had he been permitted to work
the mine as he proposed and intended to do, a verdict for $2,287.50 to was not excessive.
IdemIdemTenant in CommonOuster. A tenant in common, when ousted by his cotenant, may recover
damages resulting from the ouster, and, in determining the amount of damages, profits, when not entirely
speculative, may be taken into account, and it is only required that they be ascertained with a reasonable
degree of certainty. (Belknap, J., dissenting.)
MinesJoint TenantsEvidence of Value of OreNon-Suit. In an action by a lessee of the owner of an
undivided third of a mine to recover damages from the owner of the remaining interest therein for his
refusal to allow him to work the mine, a motion for a non-suit upon the ground that all the evidence as to
the amount of ore mined prior and subsequent to the term of plaintiff's lease was stricken out, was properly
denied where it does not appear from the record that all of such testimony was stricken out, and where the
defendant has assigned as error the refusal of the court to strike out all the testimony of a certain witness
concerning ores mined on leases prior or subsequent to plaintiff's lease, and where it appeared that ore
was mined by defendant during such term at a profit, and where it is admitted by the pleadings that the
defendant, during the plaintiff's term, had mined ore of the value of $10,000.
IdemDamagesProfitsProspective and Established Business. In an action by a lessee of the owner of an
undivided third of a mine to recover against the owner of the remaining interest for his refusal to allow him
to work the mine, defendant's contention that plaintiff could not recover for loss of profits he might expect
to have derived therefrom, for the reason that the business was prospective and not established, was
without merit, it appearing that the mine had been worked previous and subsequent to the term of the lease
at a profit, and had yielded a desirable product.
Practice on AppealOral InstructionsExceptions. A general exception to an entire oral charge is unavailable
on appeal, where one of the instructions forming a part of such charge was correct.
MinesJoint TenantsPartitionLessee. Where defendant's right to a partition of a mining claim, which he
owned as a cotenant with plaintiff's lessor, was not involved in an action by plaintiff to recover damages for
defendant's refusal to allow him to work the mine under a lease of an undivided third interest of the owners,
an objection that the lease was void because it would prejudice defendant's right to a partition will not be
reviewed on appeal.
IdemIdemLesseeDamagesProspective Profits. Where the lessee of an undivided interest in a mine
sued the lessor's cotenant for refusal to allow him to work the mine during the term of a lease which had
expired, such action was not to recover for the loss of prospective profits, but for damages then accrued.
Appeal from the Fourth Judicial District Court, White Pine County; G. F. Talbot, Judge.
Action by Frank Paul against Rocco Cragnaz. From a judgment for plaintiff, defendant
appeals. Affirmed. Rehearing denied.
Robert M. Clarke, Peter Breen, A. E. Cheney and O. J. Smith, for Appellant:
I. The legal effect of the contract of plaintiff with Howell and others is to be determined
by the instrument itself, and not by any name or description which may have been given to it.
It is called a lease in the record, but whether it is such, and what rights the parties thereto
have under it, must be ascertained from the instrument itself and its language and terms. (2
Lindley on Mines, 860; Wood, Landlord and Tenant, p. 299.)
II. The agreement of June 13, 1896, between Paul and Howell, et al., is not a lease, but a
contract or license to work at Paul's option as to the amount of work to be done, upon certain
mining property for the period of one year at a specified royalty of one dollar per ton on such
ores as he might, perchance, extract. It does not contain the following essential elements of a
lease: (1) It does not purport to give the possession of any defined property. (2) It does not
purport to give the exclusive possession of any property or interest. (3) The payment of rent is
optional, and depends upon the fact as to whether the plaintiff mines any ore; and gives no
right of action to the other parties to the contract if plaintiff does mine at all.
plaintiff does mine at all. (4) There is no estate, interest, or possession, which will revert to
the lessors upon the termination of the term. The contract is a license to work, and not a lease,
and confers no right of action, except to the extent that it has been executed. (2 Lindley on
Mines, 860-861; Hudepohl v. Liberty Hill Co., 80 Cal. 553, 558; Stuart v. Adams, 89 Cal.
367.) Paul's rights under this contract are similar to those of a cropper. (8 Am. & Eng. Enc.,
2d ed., pp. 324, 325.)
III. Whatever may be the nature of the agreement, this defendant is not a party thereto; and
while it may be the measure of the rights and liabilities of the parties who signed it, it cannot
limit or restrict the estate, rights, or possession of Cragnaz in his own property, or be any
measure of damages for a refusal on his part to comply with the privilege which Howell, et
al., had given to Paul. As to Cragnaz the contract is res inter alias acta, and without force or
effect. (Freeman on Cotenancy, sec. 249a; Murray v. Haverty, 70 Ill. 318, 320; 11 Am. &
Eng. Enc., 1st ed., p. 1095e; Boston Franklinite Co. v. Condit, 19 N. J. Eq. 394, 400, 401;
Adam v. Briggs Iron Co., 7 Cush. 361, 368, 370; Holcomb v. Coryell, 3 Stockt. 548.)
IV. Cragnaz not being affected by the terms of the contract between Paul and Howell, et
al., it becomes pertinent to consider the relations between Cragnaz and his cotenants.
Whatever Paul's rights may be under the contract, as between the parties thereto, it is certain
that as against Cragnaz, Paul has no greater right than Howell, et al., the cotenants of
Cragnaz. Under the common law, Cragnaz would not be responsible to his cotenants for any
part of the rents, issues and profits, unless he had received such from third parties (Freeman
on Cotenancy and Partition, secs. 274, 275; Pico v. Columbet, 12 Cal. 414), except he ousts
them, and then their remedy would be by partition and an accounting. Some American cases
hold that he would be liable to his cotenants for their share of the reasonable rental value of
the property. (Early v. Friend, 16 Gratt. 21, 78 Am. Dec. 649; see notes p. 665, et seq.) In the
absence of a statute giving the right of action, one cotenant, refused possession of the
common property by a cotenant, cannot maintain ejectment.
(Brown v. Warren, 16 Nev. 228; Sharon v. Davidson, 4 Nev. 416). There is no such statute in
this state; and had Cragnaz refused Howell, et al., the same as he did Paul, they could not
have sued for damages, but would have been confined to an action for partition, or an
accounting of the rents and profits received by Rocco Cragnaz. Each has the same right of
possession, and neither has the exclusive right which justifies ejecting the other. (Hoopes v.
Meyer, 1 Nev. 433, 445.)
V. The liabilities of cotenants to one another are thus summarized by Judge Freeman: All
the claims which one cotenant may present against another, not founded upon any special
agreement, and arising out of the subject of the cotenancy, are: First, for use or occupation of
the common property; second, for profits received from the common property; third, for
services performed or moneys expended for its benefit; fourth, for damages occasioned to it
by the willful act or culpable negligence of the cotenant from whom redress is sought.
(Freeman on Cotenancy and Partition, chap. XII, p. 343.)
VI. A cotenant in possession is only accountable to his cotenants as stated above. The law
does not require him to operate the common property, nor does it hold him liable for what he
might have realized had he worked the common property prudently and vigorously. It is his
property to the extent of his undivided share, and the law does not attempt to direct or compel
him to develop it. If the common property is not worked, the estate of his cotenant is not
impaired nor damaged, in case the common property is a mining claim. In this particular case
the estate of Cragnaz cotenants in the Homestake mine was much benefited by letting the
property lie idle during the months when lead was only worth $2.50 per 100 pounds, and
when it could not have been worked at a profit.
VII. The law encourages the development of a mining claim, owned by tenants in
common, by holding the tenant who works it only to a division of profits actually
realizedthat is, taking the most favorable view as to the rights of a cotenant out of
possession that has been expressed by any court. (Thompson v. Bostick, 1 McCull's Eq. 75;
Holt v. Robertson, Id. 475.) The law does not attempt to say which of the cotenants could
have made the most money by working the claim.
of the cotenants could have made the most money by working the claim. This right of
common possession and individual interest is the result of contractof their own act; and if
their tenure and estate is unsatisfactory by reason of the incidents arising from its nature, the
remedy of the tenants in common is to convert the undivided common estate into separate
individual estates by partition. The law does not attempt to say, in the absence of statutory
authority, which has the better right to possession, nor to enforce a judgment putting one into
possession of that which is rightfully in the possession of another.
VIII. The court erred in refusing defendant's motion for a non-suit. All evidence of ore
mined prior to the contract has been stricken out, and the evidence of ore mined subsequent to
the contract was permitted to remain only for the purpose of qualifying witnesses to testify
about matters which it appears they never did testify concerning. The non-suit should have
been granted, because there was no evidence before the court that the plaintiff had been
damaged in any sum whatever, by any act of the defendant, or that plaintiff had sustained any
damage whatever from not working the mine during the term of the contract.
IX. The court erred in instructing the jury that the measure of damages which Paul was
entitled to recover from Cragnaz was the profits which he could have made if he had been
permitted to work the mine. Profits which are purely prospective and speculative, dependent
upon the result of a mining venture, the number of men employed, the ability and luck to find
new bodies of ore, the market value of lead and silver, is too uncertain and unreliable to
constitute a measure for legal damages. (Watt v. Nevada Cent. R. R. Co., 23 Nev. 174, 175;
Clark v. Nevada L. & M. Co., 6 Nev. 203; Brigham & Co. v. Carlisle, 78 Ala. 243; Howe
Machine Co. v. Bryson, 44 Iowa, 159; Giaccomini v. Bulkeley, 51 Cal. 260; Martin v. Dietz,
102 Cal. 56; Bridges v. Lanham, 14 Neb. 369, 45 Am. Rep. 121; Red v. Augusta, 25 Ga. 386;
Cushing v. Seymour, 30 Minn. 304; Griffin v. Colver, 16 N. Y. 490; McDaniells v. Crabtree,
21 Ark. 431; Brock v. Gale, 14 Fla. 523; McBoyle v. Reeder, 23 N. C. 607; Sledge v. Reid, 73
N. C. 440; Vicksburg Co. v. Ragsdale, 46 Miss. 458; Abbott v. Gatch, 13 Md.
13 Md. 333; Sitton v. McDonald, 25 S. C. 68; 60 Am. Rep. 484; Frazer v. Smith, 60 Ill. 145;
Barnard v. Poor, 21 Pick. 380; Hunt v. Hoboken Land Co., 3 E. D. Smith, 144; Taylor v.
McGuire, 13 Mo. 517; Jones v. George, 56 Tex. 149; 61 Tex. 345; Houston Ry. Co. v. Hill,
63 Tex. 381; Howard v. Stillwell Mfg. Co., 139 U. S. 204; Pennypacker v. Jones, 106 Pa. St.
237, 242.)
X. The condition of affairs, at the time Cragnaz refused to permit Paul to work with him,
must determine the damages sustained. At that time Paul had nothing to damage. No work
had been performed. He had incurred no liability in preparation, or contemplation, of the
work which he claims he proposed to do. He had no business to be interrupted, and no profits
could possibly accrue from what he had then done. Where profits to business are allowed as
damages, it is where there is an existing business at the date of the alleged wrong, which is
injured by the act of the defendant; where there is an injury to a going concern, not to an
enterprise which may afterward be started; where it is something in esse, and not something
in posse, which is damaged. (Clark v. Nevada L. & M. Co., 6 Nev. 203; Wolcott v. Mount, 36
N. J. L. 271; 13 Am. Rep. 438; V. & M. R. R. Co. v. Reynolds, 46 Miss. 484; Goebel v.
Hough, 26 Minn. 252; Chapman v. Kirby, 49 Ill. 211; Houston Co. v. Hill, 63 Tex. 381; 51
Am. Rep. 642; Paola Gas Co. v. Paola Glass Co., 56 Kan. 614; Penn. Ry. Co. v. Dale, 76 Pa.
St. 47.)
XI. The damages awarded by the jury are excessive and vindictive, and wholly without
evidence to support them. There was no proof of the amount of ore that Paul would have
mined; the number of tons that he could have removed; the number of men that he would
have employed, or could have employed profitably; the cost of removal at that time; the value
of the ore then known to exist; or the profit per ton or in gross. It does appear that there was
only a small quantity of ore in sight, at the time the agreement was made with Paul. After that
was worked out, new ore bodies had to be discovered. Now, it does not by any means follow,
with such reasonable certainty as to be entitled to form a basis of damages, that Paul would
have discovered the same ore that others did. It is a matter of common knowledge that one
person will work a mine profitably where another has made a complete failure; that one
will solicit trade successfully, and another not pay his running business expenses.
that one person will work a mine profitably where another has made a complete failure; that
one will solicit trade successfully, and another not pay his running business expenses. It is
because of the inherent difficulty and impossibility of giving due weight to the elements of
personal ability, changed conditions, and fluctuating markets, that the law does not undertake
to measure such imaginary and prospective damages.
XII. There is no pretense that more than one order was ever made overruling the
defendant's motion for a new trial. The mere clerical error of one day in stating in the notice
of appeal, and undertaking on appeal, the time when the order was made will be disregarded.
The tendency of the court, as indicated by recent decisions, is to construe notices of appeal
liberally and hold them sufficient, if by fair construction or reasonable intendment the court
can say that the appeal is taken from the judgment in a particular case. (Bliss v. Grayson, 24
Nev. 422, 56 Pac. 231.)
XIII. The contention that the undertaking on appeal is invalid, because the sureties
thereunto are not bound, is not well taken. They are estopped by the recitals of the
undertaking from questioning whether an appeal was in fact taken. (2 Herman on Res. Adj.
and Estoppel, sec. 633, p. 771; Bowers v. Beck, 2 Nev. 139; State v. Rhoades, 6 Nev. 352;
McMillan v. Dana, 18 Cal. 339; Smith v. Fargo, 57 Cal. 157.)
XIV. Had the cotenants themselves demanded possession, or to be let into possession, and
Cragnaz had refused them, they could have converted their estate into estates in severalty by
partition, and have recovered from Cragnaz their proper share of the rents and profits from
the date of the refusal; but they would not have been entitled to damages for any greater sum
than their share of the rents and profits actually realized by Cragnaz. It must be perfectly
clear, in any view of the case, that Paul could not have a right to recover a greater sum than
his licensors could have recovered. Paul could not eject Cragnaz (Hoopes v. Meyer, supra)
from the possession of the mine, nor could he maintain an action against him to be put in
possession; neither could he maintain an action for partition against Cragnaz. (Smith v.
Cooley, 65 Cal. 46.) If Paul had no title in his capacity as licensee on which he could
maintain either ejectment or partition as against Cragnaz, how did he have any title on
which he could base an action for damages?
licensee on which he could maintain either ejectment or partition as against Cragnaz, how did
he have any title on which he could base an action for damages?
Thos. Wren and F. X. Murphy, for Respondent:
I. This case was tried on the 28th day of November, 1898. In due time appellant filed and
served a notice of motion for a new trial, and thereafter filed a statement on motion for a new
trial, to which respondent filed amendments. The statement was afterwards settled by the
court and engrossed, and agreed to as engrossed by the attorneys of the respective parties. On
the 10th day of May, 1899, the court overruled the motion for a new trial and on the 2d day of
June of said year appellant filed and served a notice of appeal from an order made on the 11th
day of May, 1899, overruling a motion for a new trial. On the same day appellant filed an
undertaking which recited that the defendant, Rocco Cragnaz, has appealed to the Supreme
Court of the State of Nevada, from the order of said district court denying and overruling
defendant's motion for a new trial, which said order was made and entered on the 11th day of
May, 1899. This undertaking was executed on the 29th day of May, 1899, four days before
the notice of appeal was filed and served. The bond further recited that the sureties undertook
and obligated themselves on the part of the appellant to the effect that the said appellant will
pay all damages and costs which may be awarded against him on the appeal, etc. At that time
there was no appellant and no appeal. There was no notice of appeal from the order
overruling the motion for a new trial made May 10, 1899, and there is no undertaking on
appeal from that order, and the appellant had not appealed at the time the undertaking was
executed.
II. The method of taking appeals is purely statutory. (Burbank v. Rivers, 20 Nev. 81;
Gaudette v. Glissan, 11 Nev. 184.) The sureties on the undertaking would not be liable if it
had been given upon an appeal from the order in this case. (Carson Opera House Ass. v.
Miller, 16 Nev. 337-340.) The undertaking should not have been executed before the notice
of appeal was filed. (Johnson v. Badger M. Co., 12 Nev. 261; Reese M. Co. v. Rye Patch M.
Co., 15 Nev. 341; Lyon Co. v. Washoe Co., S Nev. 177
Lyon Co. v. Washoe Co., 8 Nev. 177.) The cases last cited are to the point that the
undertaking must be filed after or at the time the notice of appeal is filed, but the present case
is strictly analogous to a case where the undertaking on appeal is filed prior to the filing of the
notice of appeal. The appeal should be dismissed.
III. As we understand the law, a cotenant out of possession has a right to recover for his
share of the profit made by a cotenant in possession. Of course, in ascertaining the profit, the
amount justly chargeable against the cotenant out of possession for the expenses of
development and mining must be deducted from the gross proceeds received by the cotenant
in possession. It is true, aside from statutory regulation, the cotenant in possession cannot
compel the cotenant out of possession to bear any part of the loss that he may sustain should
his risk not be remunerated, but he is not compelled to take the risk, and, if he desires to work
upon the claim exclusively for his own benefit, he may have his portion set apart to him by
taking the proper steps under our statute; but whether equitable or inequitable, this, we submit
is the law. The lessee of the tenant in common occupies the same position towards the
cotenant of his lessor that the lessor does.
IV. The possession of one tenant in common of the common property until some act is
committed by the cotenant that amounts to an ouster of the other tenants in common is a rule
so familiar that no citation of authorities is necessary. Any act of a cotenant in the exclusive
possession, which manifests an intention on his part to hold exclusively for himself, is
equivalent in law to an actual ouster. (Owen v. Morton, 24 Cal. 373; Carpentier v. Webster,
27 Cal. 524; Carpentier v. Mendenhall, 28 Cal. 484; Carpentier v. Gardiner, 29 Cal. 160;
Spect v. Gregg, 51 Cal. 198; Packard v. Johnson, 51 Cal. 545.)
V. The acts alleged in the complaint were sufficient to establish an ouster. What would
have been the remedy if appellant had ousted Clarke and Mrs. Robinson? The old common
law action of ejectment has been abolished in this state with its absurd fictions, although for
convenience the name is still retained. Where one tenant in common is ousted by a cotenant
he may maintain an action of ejectment to recover possession of the undivided interest in
the common property.
ousted by a cotenant he may maintain an action of ejectment to recover possession of the
undivided interest in the common property. (Owen v. Morton, 24 Cal. 373; Carpentier v.
Webster, 27 Cal. 524; Carpentier v. Mendenhall, 28 Cal. 484; Carpentier v. Gardiner, 29
Cal. 160; Spect v. Gregg, 51 Cal. 198; Packard v. Johnson, 51 Cal. 545.) A tenant in
common may maintain an action for damages from a cotenant by whom he has been ousted.
(Carpentier v. Mitchell, 29 Cal. 330.)
VI. The instrument executed by Howell, Clarke and Mrs. Robinson is a lease.
(Anderson's. Dict. Law, title Lease, p. 606, and authorities cited in foot notes.) By the lease
respondent was subrogated to the rights of the lessor and may maintain his action for damages
against the appellant. A tenant who is ousted may maintain ejectment and an action for
damages. (Estee's Pleadings, vol. 2, sec. 2270-2272.) In short, the tenant during the life of his
lease has the same right to the quiet possession and enjoyment of the interest leased, as his
landlord would have if the interest had not been leased. He may maintain an action for the
possession of the leased premises and for damages if ousted, and if ousted during the life of
his lease. After the expiration of his term he may maintain an action for damages against any
one who may have ousted him during the term.
VII. In a case like this, arising under a lease of a mining claim, it is not an easy matter to
determine what damage a lessee who is ousted sustains by reason of the ouster. Ordinarily
there is but one way of determining the value of a lease of this character, and that is by
showing the profit made by other lessees of the same property at or near the same time, the
conditions being practically the same. Unless the value of a lease of this species of property
can be determined in this way, the lessor, by ousting the lessee and shutting the mine down,
can deprive the lessee of any remedy whatever for the wrong. It is an axiom of the law that
there is a remedy for every wrong, which I apprehend is true unless a case of this kind is an
exception. In this case it was clearly established by proof that a large amount of ore had been
taken out of this mine prior to the lease to respondent.
IX. One tenant in common has a right to the possession and enjoyment of each and every
part of the common property. (Tevis v. Hicks, 38 Cal. 234; Carpentier v. Webster, 37 Cal.
524.) The appellant had no more right to exclude the respondent from working on the ore
body that appellant was at work upon than he had to exclude him from any other portion of
the mine. Counsel for appellant have contended throughout the case, and still contend, that
the lease did not bind the appellant. This seems to us to be a very remarkable view to take of
the case. In one sense the appellant not being a party to the lease was not bound by it, but he
was bound to let his cotenants into the possession of every part and parcel of the mine upon
application and upon refusal he would become liable for any damages they might sustain by
reason of the ouster. By the lease Paul was subrogated for one year to the same right.
X. The only other point made by counsel for appellant that seems to require any
discussion, at present at least, is in regard to prospective damages. A number of authorities
are cited by counsel for appellant upon this point, and amongst them Clark v. Nevada M. Co.,
6 Nev. 203. In that case the court say: Prospective damages in an action like the present are
allowed only upon proof that they are reasonably certain to occur. It follows, of course, that
prospective damages may be allowed if they are reasonably certain to occur. In this case,
however, we were not asking for prospective damages, but for damages that it was alleged
had occurred. The proof, we submit, is clear and convincing that respondent could have and
would have made a profit by working the mine during the term of his lease, not only of
twenty-five hundred dollars, but probably of eight thousand dollars.
XI. A tenant in common who is excluded from the common property by a cotenant can
maintain ejectment and couple with it a claim for damages and that a lessee of a cotenant
acquires the same right and that the lessee, after his lease has expired, can maintain an action
for damages alone. (Estee's Pleadings, vol. 2, sec. 2270, form 548; Roe v. Doe, 30 Ga.) The
only damages a lessee can recover, in an action like the present one, is the profit he could
have made if he had been permitted to work upon the mine.
made if he had been permitted to work upon the mine. Unless this be so, he is absolutely
without remedy.
XII. The testimony fully sustains the verdict. The respondent proposed to appellant to sink
a shaft on the Homestake where one was subsequently sunk by Muir and others. This
appellant refused to do or to permit respondent to do. Muir and the others, who leased the
mine from appellant almost immediately after the lease of respondent expired, sunk the shaft
at the spot that respondent proposed to appellant and within the year made $4,000 apiece.
Counsel for appellant attempt to meet this point by showing that lead was low a portion of the
year respondent's lease had to run. The proposition of respondent to appellant was to hold the
ore for higher price. The ore was there, just as the crop was in the case cited by counsel from
the supreme court. The price did rise and the profit that respondent could have made by
ordinary labor and diligence is not at all conjectural; in regard to the instrument, it is a lease,
pure and simple, of the mine not by metes and bounds, and for the use for which it was
adopted, respondent contracting to work it in a workmanlike manner. Respondent not only
agrees to work it but agrees to work it in a workmanlike manner. There is no limitation in
time short of the time for which the mine was leased.
A. E. Cheney and Oscar J. Smith, for Appellant:
I. Defendant, after plaintiff had introduced testimony in his behalf, moved the trial court
to strike out all testimony of ore, prior or subsequent to plaintiff's lease. The court denied this
motion, but permitted the evidence to stand only for the purpose of qualifying witnesses to
show condition, character and value of ore at the time of the lease. It will be seen, on page
65, that Mr. Clarke, for the defendant, objected to the question: How many tons of ore did
you take out under that lease? This objection was overruled on Mr. Wren's offer, for the
plaintiff, that it is for the purpose of qualifying the witness about the ore value, quality,
conditions and character, during defendant's lease. This action of the court permitted the
testimony to stand simply for the purpose of qualifying witnesses to testify as to the
condition, character and value of ore, at the time of the lease.
for the purpose of qualifying witnesses to testify as to the condition, character and value of
ore, at the time of the lease. It will readily be seen that there was left no evidence as to any
damage of any kind, nature, or description, nor was there any evidence on which the jury
could base a verdict for the plaintiff. The plaintiff rested. Defendant presented his motion for
non-suit in writing. The motion for non-suit was denied, and an exception duly noted by the
defendant.
II. The point made by the appellant in his opening brief, and which seems to have been
overlooked, is that there is a material and recognized distinction between profits to an
established business and a prospective one, and that evidence of actual loss by interruption of
an established business may be recovered, while prospective loss, for a business to be entered
into, is denied. The authority upon which the court relies (City of Terre Haute v. Hudnut, 112
Ind. 587) expressly recognizes and enforces this distinction. The Supreme Court of Indiana
had previously decided that future prospective profits were not sufficiently definite and
certain to be a measure of damages, and City of Terre Haute v. Hudnut does not overthrow,
but, on the contrary, expressly recognizes that decision as being correct. When applied to a
business in futuro, an enterprise, not a going concern, such anticipated profits, or evidence of
what they would have been, is rejected as too remote and speculative. Indeed, immediately
following that portion of the opinion which is quoted in the majority opinion herein, the
Supreme Court of Indiana repeats the point that the rule is confined to a present established
business. True, the rule is more liberal in actions for tort than actions ex contractu. But Clark
v. Nevada M. Co., 6 Nev. 203, and Watt v. Nev. Cent. R. R. Co., 23 Nev. 154, are each
actions to recover damages for a tort, yet each held that future prospective damages are too
uncertain to form a base for recovery. It is difficult for the appellant to understand why the
loss of crops thereafter to be grown was not quite as certain and probable an element of
damages in Clark v. Nevada M. Co. as the loss of profit on ore thereafter to be mined, when
the profit depended entirely on the continuance of the ore then in sight and the market price of
lead.
III. The reason of the rule is manifest; one has as a basis that which is, the other has no
foundation except that which may be. Another reason why this rule is unjust is manifested by
this case. Paul, assuredly, had no greater right than Howell and Clarke, and a denial of his
right to work the mine can give him no greater right of recovery than they would have.
Strictly speaking, there is no analogy between rent and royalty. One is for the use and
occupation of property, the property to be returned in statu quo; the other contemplates the
destruction and despoliation of the estate itself.
IV. Exceptions to Instructions: Without considering the fact that the decision in McGurn
v. McInnis, upon the point of the sufficiency of an exception to an instruction, was entirely
outside of any question necessary to be decided, the attention of the court is requested to the
manifest difference between the facts of that case and this one, especially as to the oral charge
given by the court. The rules of the district court require instructions to be settled before the
argument of the case begins. It may well be said that thereby counsel has the means to know
in time and specify his objections to an instruction which the court gives. But counsel does
not know what an oral charge will be until it is given and the mischief is accomplished. It
must be known to the members of this court that oral instructions have been the exception to
the general practice, and that in fact little or no opportunity is given to make or specify the
point of the exception, and also that any action taken, at such a time, in the presence of the
jury, after the argument of the case is closed, tends to create an impression with the jury that
the court's instruction was against the claim of the party objecting, and such action is
therefore harmful. But in this instruction the record shows that the appellant did except to the
oral charge of the court, for the reason that it did not correctly state the law applicable to the
case. It is submitted that, as far as the oral charge of the court is concerned, the rule of
McGurn v. McInnis ought to be applied and the objections heretofore presented to that charge
should be considered.
V. Paul's license or lease prejudiced Cragnaz's right to a partition, and for that reason, if
for no other, was void.
partition, and for that reason, if for no other, was void. In our original brief herein we tried to
make it clear to the court that Paul's so-called lease was void, because it would prejudice the
rights of the cotenant (Cragnaz, the defendant herein) to a partition, and to that end we cite
Boston Co. v. Condit, 19 N. J. Eq. 394, 400, 401; but a careful perusal of the majority opinion
fails to show us wherein the court has taken any notice of this view of the case, and hence
assume that it may have been overlooked. The court did consider Paul's rights to a partition,
but does not seem to have looked at the possible rights that Cragnaz might have had. Whether
a partition would be advisable, or whether it would not, and whether, on account of the
scarcity of bidders, and the smallness of the amount bid, a partition would have been
advantageous to Cragnaz, or Paul, or Howell, or Clarke, or Mrs. Robinson, or otherwise, still
he (Cragnaz) must have been clearly entitled to convert his joint estate into an estate in
severalty by partition under statutory proceedings. (Gen. Stats. 3288.) Now, let us assume
that, when Paul presented his contract and demanded possession, Cragnaz immediately
desired to partition the property, and, if necessary, to have it sold and the proceeds divided as
the statutes provide, and to that end had instituted proceedings: against whom would he have
proceeded? Surely not against Paul, as they did not hold the same kind and character of
estates in the property; and moreover, by the time he could possibly have secured a final
judgment in the event of contest, the term of Paul's contract would have expired, and Cragnaz
would have accomplished nothing by his expensive and tedious litigation, and would have it
all to do over again if his cotenants had seen fit to give Paul another contract for another year,
and so on. On the other hand, had Cragnaz commenced his partition proceedings immediately
against Howell, Clarke, and Mrs. Robinson, or even against them and Paul, too, then an in
that case it would have availed him nothing as against Paul's rights under the contract, who, it
would seem from the opinion referred to, would under any circumstances have been entitled
to damages for Cragnaz's refusal to permit him to work.
This action was brought to recover damages of the defendant for refusing to permit the
plaintiff to enter into the possession of a certain mining claim and work the same, and for
excluding him therefrom. The plaintiff based his right to enter into possession and work said
claim upon a written lease, executed to him, for an undivided one-third interest in said claim
by the owners of said interest, the defendant owning an undivided two-thirds interest therein.
The trial resulted in a verdict of the jury in favor of the plaintiff for $2,287.50, and a
judgment accordingly. This appeal is from an order denying defendant's motion for a new
trial.
The respondent moves the court to strike out each of twenty-three papers, designated by
name, which are found in a package of papers certified to be the whole record on appeal. This
motion is granted. These papers constitute no part of the record on appeal. The practice of
gathering up all the papers and documents filed in a case in the trial court, and sending them
up on appeal, mixed with or attached to the record, when they constitute no part of it, should
be discontinued. The statute clearly specifies what papers shall constitute the record on appeal
in every appealable case. There is no authority for withdrawing any other papers from the
files of the trial court for the purposes of an appeal. A party may be subjected to unnecessary
costs by filing useless papers on appeal, as the fee of the clerk of the supreme court is 30
cents for filing each paper, and for entering each order of the court $1.50.
In the notice of appeal it is recited that the defendant hereby appeals to the supreme court
from the order overruling and denying defendant's motion for a new trial in said action,
which said order was made and entered on the 11th day of May, 1899. The record shows that
the order denying defendant's motion for a new trial was made and entered on the 10th day of
May, 1899, instead of the 11th day of said month. Respondent moves for a dismissal of the
appeal upon certain grounds named. One ground is to the effect that no appeal has been taken
from the order made and entered on the 10th day of May denying the defendant's said
motion.
and entered on the 10th day of May denying the defendant's said motion.
In Weyl v. Sonoma Valley Railroad Co., 69 Cal. 202, 10 Pac. 510, the respondent made
objection to the motion of notice for the reason that the notice did not give the correct date of
the entry of the judgment and order denying a new trial from which the appeal was sought to
be prosecuted. The court held, in substance, that, as the record showed that there had been but
one judgment and order of the kind appealed from entered in the case, the notice was
sufficient, and that the mistake of dates merely should be regarded as a clerical misprision.
In Anderson v. Goff, 72 Cal. 65, 13 Pac. 73, the judgment appealed from was rendered on
the 29th day of March, 1884, and entered on the 30th day of April following. The notice of
appeal referred to the judgment as having been entered on the 29th of March, 1884. Held, that
the notice was sufficient.
In McAllep v. The Latona (Wash.), 19 Pac. 131, the notice of appeal described the decree
appealed from, which was rendered October 7th, as of October 1st. It not appearing that there
was any other decree in the cause, the error as to the date was held not to be material.
It will be observed that the appeal is taken from the order overruling and denying
defendant's motion for new trial in said action. The date in the clause following, which said
order was made and entered on the 11th day of May, 1899, clearly appears to be a clerical
mistake, as the record shows that the order in said case overruling the motion was made and
entered on the 10th day of May, 1899. It does not appear, nor is it claimed, that there was
more than one order made on the motion. We are of opinion that said notice of appeal is
sufficient.
Another ground alleged for the motion to dismiss is that no undertaking was filed on an
appeal from said order of May 10th. We do not think this contention is tenable. The
undertaking refers to the order appealed from as the order of said district court denying and
overruling defendant's motion for a new trial, which said order was made and entered on the
11th day of May, 1899. There being but one order made and entered overruling and
denying defendant's said motion by the district court, it is evident that the reference to
the date thereof as the 11th day of May, 1S99, instead of the 10th day of said month, was
and is simply a clerical mistake, and does not vitiate the undertaking.
order made and entered overruling and denying defendant's said motion by the district court,
it is evident that the reference to the date thereof as the 11th day of May, 1899, instead of the
10th day of said month, was and is simply a clerical mistake, and does not vitiate the
undertaking. We do not think that the mistake could avail the sureties as a defense in an
action against them on said undertaking. (Sweeney v. Karsky, 25 Nev. 197, 58 Pac. 813.)
The third ground given for the motion to dismiss is that the undertaking was executed
before the notice of appeal was filed. The statute requires that, to render an appeal effectual
for any purpose, a written undertaking shall be executed on the part of the appellant, by at
least two sureties * * *; that such undertaking shall be filed with the clerk within five days
after the notice of appeal is filed. It is true that the undertaking was executed, in one sense,
before the notice of appeal was filedthat is, it was prepared and completed ready for filing
before said notice was filedand, had it been filed before said notice, it would have been
nugatory. But it is not required that the undertaking shall be thus executed within five days
after the notice of appeal is filed, but simply that the filing thereof shall be made within that
time. The execution of the undertaking was not completed until delivered. Its delivery was
effected by filing it with the clerk.
The motion to dismiss is denied.
Counsel for appellant, in his brief, points out certain portions of several instructions given
to the jury, makes certain specific points of objections to the same, and contends that the
court erred in giving the said instructions. But the statement of the case does not show that
any of said points of objections or exceptions were stated at the trial. The alleged errors
cannot be considered on appeal. (McInnis v. McGurn, 24 Nev. 370; 55 Pac. 304, and cases
cited.)
The defendant interposed a demurrer to plaintiff's complaint upon the ground that it does
not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and
the ruling is assigned as error.
We do not think said ruling was error, but that the facts alleged are sufficient.
The facts, as shown by the complaint, stated in brief, are that on the 13th day of June,
1S96, the defendant and Irene Robinson, Eugene Howell and R. M. Clarke were the
owners of a certain mining claim described therein, the defendant owning an undivided
two-thirds interest, and the said Robinson, Howell, and Clarke owning among them an
undivided one-third interest in said mining claim; that on said day the said owners of said
one-third interest leased to the plaintiff their said interest for one year from said date
upon the terms and conditions expressed in said lease; that the plaintiff on the 1Sth day
of June exhibited said lease to the defendant, and offered to pay him any sum due from
plaintiff's lessors as their proportion of the expenses incurred in the development of said
mine; that defendant at said time, and at divers other times about said date, refused to
give any statement of such expenses, refused to permit the plaintiff to enter into
possession and work said mining claim, and excluded him therefrom; that the value of the
rents, issues, and profits of said one-third interest in said mine for the said term of said
lease is $3,000.
that on the 13th day of June, 1896, the defendant and Irene Robinson, Eugene Howell and R.
M. Clarke were the owners of a certain mining claim described therein, the defendant owning
an undivided two-thirds interest, and the said Robinson, Howell, and Clarke owning among
them an undivided one-third interest in said mining claim; that on said day the said owners of
said one-third interest leased to the plaintiff their said interest for one year from said date
upon the terms and conditions expressed in said lease; that the plaintiff on the 18th day of
June exhibited said lease to the defendant, and offered to pay him any sum due from
plaintiff's lessors as their proportion of the expenses incurred in the development of said
mine; that defendant at said time, and at divers other times about said date, refused to give
any statement of such expenses, refused to permit the plaintiff to enter into possession and
work said mining claim, and excluded him therefrom; that the value of the rents, issues, and
profits of said one-third interest in said mine for the said term of said lease is $3,000. It is
alleged that by reason of the refusal of the defendant to let plaintiff into possession of said
one-third interest in said mining claim under said lease, plaintiff was damaged in the sum of
$2,500. A copy of said lease is attached to the complaint, and made a part thereof.
Counsel's first contention with respect to the facts alleged is that the writing called a
lease is not a lease, but simply a license to plaintiff to extract and work ore at his option for
the period of one year at a specified royalty on ores that he might perchance extract. The
instrument in question, after giving the names of the parties thereto, respectively, as the party
of the first part and the party of the second part, recites that they do by these presents
covenant and agree, and the said party of the first part hereby leases unto the said party of the
second part one-third interest in and to that certain mine known as and called the Homestake
Mine,' situated, etc.; this lease to take effect and go in force from this day, and to continue
for a period of one year up to and including June 13, 1897. The provisions of this lease to be
as follows: The party of the second part hereby agrees to work said mine in a workmanlike
manner, and leave the same in as good condition as it is at this time.
leave the same in as good condition as it is at this time. The said party of the second part
agrees to pay to the said party of the first part or to * * *, as shall be directed by the party of
the first part, royalty from all ores taken out, extracted, and shipped from said Homestake
mine by the party of the second part during the continuance of this lease.
After specifying the amount of the royalty on each ton taken out, etc., it is recited, Said
royalty to be paid upon the first day of each month to the party or parties as hereinbefore
named. The instrument is dated the 13th day of June, 1896, and signed by the parties thereto.
No particular form of words is requisite to make a lease. Any words that show an
intention on the part of the lessor to divest himself of the possession of the premises, and
confer it upon the lessee for a term, whether long or short, is sufficient; but the lessee should
sign the lease, or in some manner become bound by such covenants as it is agreed that he
shall perform. (1 Wood, Landl. & Ten. 206.)
A lease is a species of contract for the possession and profits of lands and tenements,
either for life, or a certain term of years, or during the pleasure of the parties. (12 Am. &
Eng. Enc. Law, p. 976.)
No particular form of expression or technical words are necessary to constitute a lease,
but whatever expressions explain the intention of the parties to be that one shall divest
himself of the possession of his property and the other shall take it for a certain space of time
are sufficient, and will amount to a lease for years as effectually as if the most proper and
permanent form of words had been made use of for the purpose. (12 Am. & Eng. Enc. Law,
p. 977.) In reference to leases of mines Lindley says: As to whether an instrument is or is not
a lease depends upon the intent of the parties, and not upon the mere form in which it is
prepared. (2 Lindl. Mines, 861.)
Whether an instrument is a license or a lease will depend upon the manifest intent of the
parties, gleaned from a consideration of its entire contents. (2 Lindl. Mines, 860.)
We are of opinion that the writing in question, from a consideration of its entire contents,
clearly and legally expresses the parties' meaning, and shows an intention on the part of
the lessors to divest themselves of the possession of the premises, and to confer it upon
the lessee, the plaintiff, for the term therein named, and to obligate the lessee thereby to
work said mine in a workmanlike manner during said term, and to pay the royalty
monthly as therein specified.
the parties' meaning, and shows an intention on the part of the lessors to divest themselves of
the possession of the premises, and to confer it upon the lessee, the plaintiff, for the term
therein named, and to obligate the lessee thereby to work said mine in a workmanlike manner
during said term, and to pay the royalty monthly as therein specified. We are of opinion that
said writing was a grant to the lessee of the lessor's undivided one-third interest in said
mining claim for said term of one year, being their share of the whole of said mining claim or
mine.
Counsel's further contention is that, whatever may be the nature of the instrument, it
cannot limit or restrict the estate, rights, or possession of the defendant in his own property,
and he cites several authorities to support this contention.
The answer to this is that said lease does not limit or restrict the defendant in any of his
rights with respect to said mine or mining claim, his estate therein, or right of possession
thereof.
The authorities cited are to the effect that it is not in the power of a tenant in common to
convey the whole of the estate or the whole of a distinct portion by metes and bounds; that
such conveyance is void as against the cotenants, but that the respective cotenants may
convey their shares of the whole estate to one or many grantees, as they please, so the share
be of the entire estate. As an illustration in one of the said cases cited, it is said: I have a
moiety. My cotenant has a moiety. He may convey a quarter of the whole estate to one, an
eighth to another, a sixteenth to another, and so indefinitely, letting in other cotenants with
me. But, all being seized of aliquot parts in the same estate, and of like kind and quality, my
right to partition is not disturbed by the number of cotenants. (Adam v. Briggs Iron Co., 7
Cush. 368.)
The lease in question is not a lease of the whole estate, nor the whole of a distinct portion
by metes and bounds, but it is a lease from the three cotenants of their undivided one-third
interest, being their share of the whole mining claim.
Counsel contends, as we understand, that if the defendant had excluded Howell, et al.,
from the mine as he did the plaintiff, they could not have sued for damages, but would
have been confined to an action for partition of the common property, or an accounting of
the rents and profits received by the defendant from third parties; and that, plaintiff
having no greater rights than his lessors, he is confined to said remedies.
plaintiff, they could not have sued for damages, but would have been confined to an action
for partition of the common property, or an accounting of the rents and profits received by the
defendant from third parties; and that, plaintiff having no greater rights than his lessors, he is
confined to said remedies.
In Carpentier v. Webster, 27 Cal. 550, the court say: Partition would afford no redress for
the dispossession, whether total or partial. In the first place, the tenant expelled might not
desire a partition, and it is possible that a partition would be equally unwelcome to the
cotenant who expelled him. In the second place, partition does not lie between tenants in
common at common law (2 Bl. Comm. 182, 191), and we are now treating the subject on
common-law conditions only. And, in the third place, partition in equity is not for the
purposes of redress for ouster, nor for any description of wrongs previously committed, but
for the sole purpose of terminating the common tenancy. By the common law the ejected
tenant was not only entitled to be restored to his moiety, but to damages also. (1 Coke, Litt.,
vol. 1, p. 906.) In chancery in partition cases there is no account taken of damages, but of
mesne profits only. (1 Story, Eq. 466.)
In case of lodes and veins, it would seem impossible to effect a fair, actual division. It is a
matter of common knowledge that the metallic substances occurring in veins are not
distributed uniformly, either as to quantity or quality. They are found in shoots' or vuggs,
kidneys, and other irregular bodies, making it impracticable to segregate the interests without
great injury to the owners. (2 Lindl. Mines, 792.)
It has been said that the only partition that can be made of this class of property is to order
a sale, and divide the proceeds. (2 Lindl. Mines, 792.)
A sale in most instances would doubtless be equally as injurious to the owners as partition
of the property, if not more so, on account of the scarcity of bidders and the smallness of the
amount bid.
Partition being impracticable in most cases, and affording no redress for damages
sustained by a cotenant by reason of being ejected or excluded from the common property,
if an accounting for the rents and profits received from third parties by a cotenant who
did the ousting is the only remedy left the ousted cotenant for such redress, then a tenant
in common, if he so elect, whether his moiety be great or small, may exclude all of his
cotenants, to their great damage, from a mine, let the mine lie idle, or only work it
himself, and incur no liability to his cotenants; for whether he let the mine remain idle, or
only worked it himself, there would be no rents or profits to be received from third
parties, and thus he may appropriate the whole profits, however great, to his own use.
being ejected or excluded from the common property, if an accounting for the rents and
profits received from third parties by a cotenant who did the ousting is the only remedy left
the ousted cotenant for such redress, then a tenant in common, if he so elect, whether his
moiety be great or small, may exclude all of his cotenants, to their great damage, from a mine,
let the mine lie idle, or only work it himself, and incur no liability to his cotenants; for
whether he let the mine remain idle, or only worked it himself, there would be no rents or
profits to be received from third parties, and thus he may appropriate the whole profits,
however great, to his own use.
There is no rule of law which grants a tenant in common such rights or privileges against a
cotenant whom he ousts. The authorities are to the contrary. (Gage v. Gage (N. H.), 28 L. R.
A. 829, note a.)
If A disseize his cotenant, B, it is no defense in an action against him to recover rents and
profits that in fact he has received or realized nothing from the lands during the
dispossession, and B may recover what the rents and profits are worth, without regard to the
inquiry as to whether A in fact collected rents or received profits. (Sears v. Sellew, 28 Iowa,
501.)
The said lessors, as tenants in common with the defendant, might have lawfully entered
and worked said mine themselves if the lease had not been made.
There can be no doubt that one, as a tenant in common, may authorize another to do what
he himself could do with the common property. (Alford v. Bradeen, 1 Nev. 228.)
It is denied by the answer that the defendant refused to permit the plaintiff to enter into the
possession of said mining claim and to work the same; denied that he excluded the plaintiff
therefrom; denied that he refused to give to the plaintiff a statement of the expenses of the
development of said claim; denied that the plaintiff offered to pay the defendant any amount
due from his said lessors, or either of them, for their proportion of said expenses; denied that
the value of the rents and profits of said one-third interest was any sum of money whatever;
and denied that plaintiff was damaged in any sum by reason of defendant's refusal to let
plaintiff into the possession of said one-third interest under said lease, or for excluding
him therefrom.
plaintiff into the possession of said one-third interest under said lease, or for excluding him
therefrom. But, in our opinion, there was sufficient evidence to support a finding of the jury
in favor of the plaintiff on each of the above controverted points.
There was evidence to the effect that the plaintiff repeatedly requested of the defendant to
be let into the possession of the mine, to work the same, and that defendant refused every
request; that defendant threatened the plaintiff with personal violence if he entered and mined
the ore; that he refused to permit the plaintiff to work on ore then accessible in the drifts, and
on which no work was being done by any one; that the plaintiff requested that he be permitted
to sink a shaft from the surface to the bodies of ore on their dip, below, outside, and away
from the level on which defendant was working, and that he might extract the ore therefrom,
and that defendant refused to permit him to do so; that there was no way of reaching the ore
bodies then developed except through a tunnel from the surface and connecting incline; that
the defendant locked the door that was at and in the mouth of the tunnel every night after the
plaintiff got his lease, and that he threatened to scatter the plaintiff's brains if he entered there;
that the defendant applied to the plaintiff insulting language and opprobrious epithets, and
that the plaintiff did not enter and work the mine for fear that one or the other of them might
get killed if he did so. The evidence was certainly sufficient to support a finding of the jury of
an ouster of the plaintiff by defendant.
There was evidence sufficient to support a finding that the plaintiff offered to pay the
defendant the lessor's proportion of all expense incurred by the defendant in any
developments of the mine that he may have made. There was evidence, also, tending to show
that the defendant had been fully reimbursed for all such expenses by the proceeds of ores
extracted by the defendant from said mine. It appears that all of the work in developing the
mine in that part where the defendant was working and from which the plaintiff was excluded
as aforesaid was done by lessees of the mine, and that all the bodies of ore found there were
found by such lessees.
It appears that the first lease was given by Eugene Howell for a term commencing on the
14th day of January, 1894, and ending on the 14th day of January, 1895 (Record, folio 137);
that the lessees worked eleven months under ground (folio 129); that they had ten or eleven
men at work from January to November, 1894, and then three men (folio 122); that then a
lease was given from January to August, 1895 (folio 120); that on this lease three men
worked up to July and five men during that month (folio 122); that during the term of the
latter lease the lessees discovered and developed the ore body that defendant was working on
when plaintiff was refused possession; and that all the work defendant did afterwards was on
that body of ore (folio 126). If there be any rule of law relating to the rights of tenants in
common with respect to the common property that would justify the defendant in excluding
the plaintiff from entering into possession and working said mine, it has not been cited, and
we know of no such rule.
The contention of appellant that the damages awarded by the jury are excessive and
vindictive, and wholly without evidence to support them, is the only remaining contention
that we regard requires special consideration in this opinion. Counsel asserts that there was
no proof of the amount of ore that Paul would have mined, the number of tons that he could
have removed, the number of men that he would have employed or could have employed
profitably, the cost of removal at that time, the value of the ore then known to exist, or the
profit per ton or in gross.
There was evidence to the effect that the plaintiff was a practical miner of many years'
experience in practical mining; that mining was his business; that at the time he took his lease
the mine was in such condition, and such bodies of ore had been and were then exposed in the
underground workings by other lessees, as to make it reasonably certain that a large amount
of ore could be extracted therefrom; that it appeared to be reasonably certain from the extent
of these ore bodies in said workings and their dip that they continued downward out and
beyond where the defendant was working, and could be tapped by a perpendicular shaft if
sunk forty or fifty feet deep from the surface; that the plaintiff intended and proposed to sink
such a shaft, and work the said ore bodies below the level on which the defendant was
working, and raise the ore through the shaft; that other practical miners secured a lease
on the ____ day of June, 1S97, on said mine for the term of one year, sunk a shaft
fifty-two feet deep at the place where the plaintiff intended to sink one, struck the said
ore bodies, and mined therefrom 1,150 tons of ore during the term of their lease, with five
men working four or five months and six men working the balance of said term.
tiff intended and proposed to sink such a shaft, and work the said ore bodies below the level
on which the defendant was working, and raise the ore through the shaft; that other practical
miners secured a lease on the ____ day of June, 1897, on said mine for the term of one year,
sunk a shaft fifty-two feet deep at the place where the plaintiff intended to sink one, struck the
said ore bodies, and mined therefrom 1,150 tons of ore during the term of their lease, with
five men working four or five months and six men working the balance of said term. Besides,
they took out 65 tons from the level above, or 1,215 tons in the aggregate.
From the above facts the jury might reasonably have found that there was reasonable
probability that the plaintiff could and would have mined from 1,000 to 1,200 tons of ore
during the term of his lease if he had been permitted to work as he proposed and intended to
do.
It appears that the ores of the mine were valuable only for the lead and silver they
contained; that 66 percent was lead, and that there were twelve or thirteen ounces of silver per
ton of ore; that on the market price of lead depended mainly the value of the ore; that the
plaintiff could have sold all the ore he could have mined in 1896 at the rate of $3.30 per 100
pounds of lead contained therein.
It was agreed between the parties at the trial that when the market price of lead was $3.30
the ore was worth $18.34 per ton over and above cost of shipping to market, less the expense
of mining and sacking the ore; that it required fourteen sacks to sack a ton of ore, and that the
sacks cost 7 cents apiece, and miner's wages were $3 per day.
If the lessees in 1897 prosecuted the work every day, the wages of their men would be
$6,030. If it required sufficient sacks to sack all the ore before any shipments were made,
their cost would be $1,190. It appears from the evidence that two men could sack ten tons per
day. Their wages for sacking 1,215 tons would be $732. These three items of costs of mining
and sacking of 1,215 tons are figured at the highest possible cost that could have been
incurred according to the evidence. It is not probable that the men worked every day in the
year, or that it was necessary to have on hand so great a number of sacks to sack the ore. But,
taking these items as the necessary costs of extracting and sacking the 1,215 tons of ore
from $22,2S3, the gross yield at $1S.34 per ton, and a profit of $14,331 is shown.
as the necessary costs of extracting and sacking the 1,215 tons of ore from $22,283, the gross
yield at $18.34 per ton, and a profit of $14,331 is shown.
We think the evidence would have justified the jury in finding that the plaintiff, as a
practical miner of long experience in mining, whose business was that of mining, could, and
would, probably, have extracted such quantities of ore from said ore bodies during his said
term, if the defendant had not excluded him therefrom and sold the same at such market price
then existing as would have yielded him a net profit even greater than the sum allowed him
for damages. The only value a mine has to a lessee thereof is the profits arising from his
working the same, and, when he is wrongfully excluded and prevented from such working,
his loss consists in the loss of profits that he would have made but for such exclusion.
The adjudged cases very clearly show that in actions to recover for damages resulting
from a tort a more liberal rule in favor of the plaintiff prevails than in actions to recover for a
loss sustained from a breach of contract. Yet in the latter class of cases the overwhelming
weight of authority supports the doctrine that profits, when not entirely speculative, may be
taken into account (112 Ind. 555, supra); and it is only required that they be ascertained with
a reasonable degree of certainty (Chapman v. Kirby, 49 Ill. 211).
It is not to be forgotten that the law does not require absolute certainty in any case. * * *
In a civil case all that is deemed requisite is a fair and reasonable degree of probability. Lord
Mansfield says that the only degree of certainty attainable in judicial proceedings is a
probable one,' and this is the doctrine of logic as well as of law writers. It is, indeed,
impossible to secure any higher degree of certainty in human affairs, although there may be
degrees of probability. All that can be required in any case or upon any subject is that the
evidence shall tend, with a fair degree of probability, to establish a basis for a relevant
inference. (City of Terre Haute v. Hudnut, 112 Ind. 557.)
A tenant in common, when ousted by his cotenant, may recover damages resulting from
the ouster, as well as when ousted by an entire stranger to the land."
ousted by an entire stranger to the land. (Carpentier v. Mitchell, 29 Cal. 330, and cases
cited.)
The order appealed from is affirmed.
Belknap, J.; dissenting:
The written instrument which is the basis of this action is as follows:
Know all men by these presents, that Eugene Howell, of the county of White Pine, State
of Nevada, the party of the first part, and Frank Paul, of the same county and state, the party
of the second part, do covenant and agree, and by these presents do covenant and agree, that
the said party of the first part hereby leases unto the said party of the second part a one-third
interest in and to that certain mine known as and called the Homestake Mine,' situated in
Swansea caon, near Shermantown, White Pine mining district, White Pine county, State of
Nevada. This lease to take effect and go into force from this day, and to continue for a period
of one year up to and including June 13, 1897. The provisions of this lease to be as follows:
The party of the second part hereby agrees to work the said mine in a workmanlike manner,
and leave the mine in as good a condition as it is at this time. The said party of the second
part agrees to pay over to the said party of the first part, or to the sheriff of White Pine county,
or to C. A. Mathewson, of Hamilton, White Pine county, Nevada, as shall be directed by the
said party of the first part, royalty from all ores and ores taken out, extracted, and shipped
from the said Homestake mine by the said party of the second part or by any one during the
continuance of this lease, as follows:
The party of the second part agrees to pay one dollar ($1) per ton net money for all ores
shipped and worked from said mine which is at the rate of three dollars ($3) per ton for all
ores taken out and shipped under this lease. This royalty to be net over everything, and no
expenses of any nature to be deducted from same. Said royalty to be paid upon the first day of
every month to the party or parties as hereinbefore named, together with duplicate statements
of ores worked by smelters.
ores worked by smelters. The said party of the first part empowers the party of the second part
to ship all ores that may be out on the dumps and extracted from said Homestake mine at this
time, the ores representing the one-third interest as named in this lease, paying the royalty
therefor as herein named. All ores to be marked in the name of the Homestake mine. The
party of the second part agrees to post a notice upon said mine at once that said mine and
interest will not be responsible for any debts, obligations, expenses, wages, or dues of any
nature or character whatsoever during the term of this lease, to read as follows: Know all
men by these presents, that a one-third interest in the Homestake mine has been leased unto
Frank Paul, and said mine will not be responsible or said Eugene Howell will not be
responsible or holden, or said mine holden, for any debts, obligations, wages of men, expense
of mining supplies, or any dues of any nature or character whatsoever during the term of this
lease. In witness whereof we have this 13th day of June, 1896, set our hands and seals at
Carson City, Nevada. Eugene Howell. [Seal.] Frank Paul. [Seal.]' We unite in the above lease,
and agree upon and accept its terms and conditions upon the understanding that the royalty or
rental mentioned therein shall be paid to C. A. Mathewson, to be by him held in trust and on
special deposit, to be paid over when it is determined to whom the same belongs. Irene M.
Robinson. [Seal.] Robt. M. Clarke. [Seal.]
The parties have called it a lease, but the name they have attached to it can make no
difference as to its legal effect.
Bainbridge, in his work on the Law of Mines and Minerals (page 236), says: There is a
great distinction between a lease of mines and a license to work mines. The former is a
distinct conveyance of an actual interest or estate in lands, while the latter is only a mere
incorporeal right to be exercised in the lands of others. It is a profit a prendre, and may be
held apart from the possession of land. * * * In order to ascertain whether an instrument must
be construed as a lease or a license, it is only necessary to determine whether the grantee has
acquired by it any estate in the land, in respect of which he might bring an action of
ejectment.
ment. If the land is still to be considered in the possession of the grantor, the instrument will
only amount to a license, and, though the grantee of the license will certainly be entitled to
search and dig for mines according to the terms of his grant, and appropriate the produce to
his own use, on payment of the stipulated rent or proportion, yet he will acquire no property
in the minerals till they are severed from the land, and have thus become liable to be
recovered in an action of trover.
Another distinction is that a lease is a contract for exclusive possession, whereas a license
merely gives the licensee the right to use the premises for a specified purpose, the possession
remaining in the licensor.
The authorities are agreed that a license to dig and take ore is never exclusive of the
licensor, unless expressed in such words as to show that that was the intention of the parties.
Where the license simply gives the licensee the right to dig and take ore, the licensor may
take ore from the same mine at the same time, and also grant permission to others to exercise
the same right. (Silsby v. Trotter, 29 N. J. Eq. 233; Malcomson v. Wappoo Mills (C. C.), 85
Fed. 907.)
It will be noticed that under the provisions of the instrument above set forth respondent
acquired no estate in the mine, and that his possession was not exclusive. I conclude,
therefore, that the instrument is a license, and that plaintiff acquired no interest thereby except
as to ore extracted by him. As to ore not extracted, there was no change of ownership.
For these reasons I dissent from the judgment.
The defendant petitions for a rehearing, and suggests that the court overlooked certain
points involved in the appeal. We considered all such points, but thought that it was not
worth while to notice them in the written opinion. If we understand the petitioner's
contention, it is, substantially, that the court below struck out all testimony of ore mined prior
and subsequent to plaintiff's lease; that then nothing was left in the case on which the jury
could base a verdict for the plaintiff, and therefore the court below erred in denying
defendant's motion for a nonsuit.
for the plaintiff, and therefore the court below erred in denying defendant's motion for a
nonsuit. In our opinion, the record does not show that all such testimony was stricken out, but
that it shows to the contrary. Besides, in the defendant's statement on motion for new trial he
assigns as error, to wit: (14) The court erred in denying defendant's motion to strike out all
testimony of the witness Lanni concerning ores mined on leases prior or subsequent to
plaintiff's lease.
We were of opinion, and still entertain it, that, if all the testimony of ore mined prior and
subsequent to the term of plaintiff's lease had been stricken out, the court would not have
been justified in granting a non-suit. For the undisputed testimony is that, in the month of
April of the plaintiff's term under his lease, the defendant extracted about one hundred tons
from one body of ore and about eighty tons of ore from another body in said mine; that at that
time the market price of lead was $3.30, and it appears from the evidence that when lead was
at that price said mine could be worked at great profit. And it is alleged in the complaint that
during the year between June 13, 1896, and June 13, 1897, being the term of plaintiff's lease,
that the defendant extracted from said mining claim, and sold, gold, silver, lead ore, of the
value of $10,000. The allegation that defendant extracted from said mining claim gold,
silver, lead ore, of the value of $10,000, between said dates, is not denied by the answer;
and, when the motion for non-suit was made and denied, the fact alleged as aforesaid stood
admitted, and still stands so.
Second Ground for Rehearing: The petitioner says: The point made by the appellant in
his opening brief, at page 18, and which seems to have been overlooked, is that there is a
material and recognized distinction between profits to an established business and a
prospective one, and that actual loss by interruption of an established business may be
recovered, while prospective loss for a business to be entered into is denied. The petitioner
cites authorities and argues in support of the above contention through several pages of
typewriting. We are of opinion that the business of mining on the Homestake mine was pretty
well established, and that the evidence shows that the profits thereof prior, during, and
subsequent to plaintiff's lease were very great.
the evidence shows that the profits thereof prior, during, and subsequent to plaintiff's lease
were very great.
The uncontradicted evidence is that the defendant mined 7,000 tons of ore prior to
plaintiff's lease; that the mine was profitably worked by lessees in 1893, 1894, and up to
August, 1895; that, during the year next after plaintiff's lease expired, there were extracted by
defendant's lessees 1,215 tons from the ore body, which the plaintiff proposed and intended to
work, and which was of great net value. And it is shown by the pleadings that the defendant
mined ore of the value of $10,000 during the plaintiff's said term. Oscar J. Smith testified:
This is the most desirable smelting ore in the world. High percentage of lead, and no
undesirable ingredients. We think that the contention of the petitioner that mining on said
mining claim was not an established business, and the conclusions he draws therefrom, are
without merit.
Third Ground: Petitioner says the appellant did except to the oral charge of the court, for
the reason that it did not correctly state the law applicable to the case; and he submits that, as
far as the oral charge of the court is concerned, the rule of McGurn v. McInnis ought not to be
applied, and the objection heretofore presented to that charge should be considered. The oral
charge contained several propositions, and it was excepted to as a whole or in gross. We think
the rule is well established that in such case, if any portion excepted to is sound, the exception
cannot be sustained. (Morrill v. Palmer, 33 L. R. A. 411, and cases cited.) Exceptions
should be specific, and should be directed, not to the charge as a whole, but to the portion or
portions thereof which are considered objectionable. It is only where the charge is erroneous
in its whole scope and meaning, or where the charge, in effect, asserts but a single
proposition, that a general exception will be available. (8 Enc. Pl. & Prac. 257. See citations
given of many cases in 25 state courts, and numerous cases in the federal courts.)
If an exception is taken to an entire charge, containing several distinct and separate
propositions, or in gross to a series of instructions, the exception will be unavailable if any
one of the propositions in the charge or any of the instructions is correct. (8 Enc. Pl. & Prac.
259, and cases cited from 27 states, and 20 cases from the United States courts.)
cited from 27 states, and 20 cases from the United States courts.)
The charge in question contained these propositions, among others: Coowners of mining
claims each have the right to work the mine. One is not liable for the expenses of the others'
work. If either extracts valuable ore, he is liable to share the profits with the other. He is
entitled to retain his costs and expenses out, but the profit after that must be divided with his
coowner in proportion to the interest of each.
We thought, and still think, the above propositions are correct. Counsel in their brief
pointed out some other propositions embraced in said charge, and contended that they were
erroneous. Whether they were erroneous or not, we did not consider material. If error was
committed in giving them, the exception being taken to the whole charge, or in gross, it could
not be sustained.
Fourth Ground: Petitioner says: In our original brief we tried to make it clear to the court
that Paul's so-called lease was void, because it would prejudice the rights of the cotenant,
Cragnaz, to a partition; but a careful perusal of the majority opinion fails to show us wherein
the court has taken notice of this view of the case, and hence we assume that it may have been
overlooked. The court did consider Paul's rights to a partition, but does not seem to have
looked at the possible rights that Cragnaz might have had. What we said about partition was
in reply to the defendant's contention that Paul's only remedy was an action for partition, or
for an accounting of rents and profits. We did not notice the contention, in our former
opinion, that the plaintiff's lease was void because it would prejudice the rights of the
cotenant, Cragnaz, to a partition, because his right in that respect was not involved in the
case. The defendant did not seek a partition of the mine, and when he does so in a proper
action, and his right thereto is properly brought before the court for ajudication, it will be time
to pass upon that question. His possible right was not in issue.
In the case of Boston Franklinite Co. v. Condit and Torrey, 19 N. J. Eq. 394, on which
petitioner seems to rely, we find nothing to support said contention.
nothing to support said contention. In that case it was held that a tenant in common could not,
as against his cotenant, convey his right to any specific portion of the common property, to
the prejudice of his cotenant. The court said: The reason is that it would prejudice the right
of the cotenant to a partition. Each tenant in common of an undivided moiety has a right to
partition by having one-half of the whole premises set off to him. He must not be compelled
to partition one part with one cotenant, and another with another cotenant, as he would if such
conveyance were good. That was a suit in equity for partition. The complainant claimed title
to one equal moiety or one-half part of the iron, zinc, and other ores in a tract of land in
Sussex county. He claimed no title to any other part of said tract. His right to said ores was
based on the following chain of title: E and F being the owners of said tract of land as tenants
in common, F, by deed, conveyed to W and A, in terms, all the iron, zinc, and other ores on
or within any lands of F in the county of Sussex. This title of W and A by several mesne
conveyances was vested in the complainant, and subsequently F conveyed to his son the
undivided half of this tract, and the son conveyed this undivided half to E. The title of E in
the tract was by several mesne conveyances vested in the defendants. The court held that the
complainant was not entitled to partition as against the defendants, or to any relief as against
them. And why? (1) Because the title to said tract having become vested in E, the other
cotenant, in severalty, and through him in the defendants, there could be no partition. (2)
Because the said conveyance of said ores by F was a conveyance of a specific part of said
tract of land held by E and F in common, and was void as to E, and his grantees.
Under the act of congress of May 10, 1872, a lode-mining claim consists of a tract of land
with defined surface boundaries, including all lodes, veins, and ledges throughout their entire
depth, the top or apex of which lies inside of such surface lines extending downward
vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in
their course downward as to extend outside the vertical side lines of such surface location.
cal side lines of such surface location. (Congressional Act; Gleeson v. Martin White M.
Co., 13 Nev. 442.)
The location is of a piece of land, including the vein. (13 Nev. 442, supra.)
The lease in question was not a lease simply of the ores (a particular part of the common
property), but a lease of an undivided one-third of a tract of land (the Homestake mining
claim), including an undivided one-third of the ores therein. We find nothing in the New
Jersey case that in any degree supports petitioner's contention.
Prospective Damages: Petitioner cites several authorities to support his contention that the
plaintiff could not recover damages sustained by loss of future prospective profits. The
answer to this is that the plaintiff's action was not brought to recover damages for loss of
profits which he might at some future time sustain by reason of being excluded from working
said mine by defendant, but to recover damages for the loss of profits which he had sustained
by being prevented from working said mine during the term of his lease, which was then past.
That he could have made large profits by working said mine during said term we think was
clearly shown by the evidence, as we pointed out in the former opinion.
The petition for rehearing is denied.
____________
25 Nev. 329, 329 (1900) Bliss v. Grayson
[No. 1533.]
GEORGE D. BLISS, Respondent, v. GEORGE W.GRAY-
SON and J. P. ANDERSON, Appellants.
Practice on AppealNotice of AppealAdverse PartyCodefendant. One of several defendants who has filed
a motion for new trial, based upon the joint statement of all the defendants, is not an adverse party, upon
whom notice of appeal must be served on appeal by his codefendants from an order denying their motion
for new trial, whether his separate motion is sustained or denied.
IdemIdemCodefendants Dismissed. Upon an appeal from a judgment by two of several defendants, notice
of appeal need not be served upon codefendants as to whom the action was dismissed, over the objection
of appellants, before the judgment was rendered.
IdemIdemIdemWaiver. Where notice of an intention by some of several defendants to move for a new
trial is waived by a codefendant, by joining in the statement on such motion, neither he nor the plaintiff
can complain, on an appeal from an order denying the motion for new trial, of the failure to serve such
notice on the codefendant.
Dismissal of CodefendantOrder Not Binding Upon Objection. An order dismissing, upon motion before
judgment, some of several defendants, with the consent of some of their codefendants, and against the
objection of others, is not binding upon the objecting defendants on appeal from the final judgment,
though no appeal from the order of dismissal is taken.
DecisionWhat ConstitutesFindings and Conclusion. In our civil practice act the decision is the
announcement by the court of its judgment, and although based upon the settled facts of the case, such
facts may never be reduced to writing, so as to constitute findings, within the meaning of that term, as
used in the civil practice act.
Practice on AppealAssignment of ErrorSufficiency Of. Under sections 195 and 197 of the civil practice
act, as amended by act of 1893, p. 89, providing that, when the notice of an intention to move for a new
trial designates as a ground the insufficiency of the evidence, it shall be a sufficient assignment of error to
specify that the verdict or judgment is not supported by the evidence or is contrary to the evidence, the
sufficiency of the pleadings and errors appearing in the judgment roll may be considered on an appeal
from an order denying a new trial. (Bonnifield, C. J., dissenting.)
On rehearing. Affirmed.
[For former opinion, see 24 Nev. 422.]
Robert M. Clarke, for Appellants.
J. W. Dorsey and Wm. S. Bonnifield, for Petitioner and Respondent:
I. This court has no jurisdiction to hear the appeal of the defendants, Grayson and
Anderson, from the order denying the motion for a new trial, because the defendants as
to whom the action was dismissed are adverse parties on the appeal.
defendants, Grayson and Anderson, from the order denying the motion for a new trial,
because the defendants as to whom the action was dismissed are adverse parties on the
appeal. This action was commenced on the 8th day of July, 1889, against thirty defendants,
including the appellants and William Dunphy, now deceased. On the 12th day of June, 1898,
the court rendered its decision, and gave judgment dismissing the action as against
twenty-seven defendants, other than the appellants, Grayson and Anderson, and the
representatives of William Dunphy, deceased. (a) The judgment of dismissal recites that it is
made pursuant to a stipulation filed April 7, 1891. But if it were true that as to the clients of
James F. Dennis the dismissal was made on his motion, it would be presumed that it was
granted by the consent of the plaintiff, it not appearing that he objected thereto. (Parker v.
Altschul, 68 Cal. 380, 381.) (b) The judgment of dismissal must, in either view, be treated as
possessing all the elements of a judgment by consent with respect to the plaintiff and the
dismissed defendants, which could not be reviewed, vacated or set aside, on appeal or motion
for a new trial, either by the plaintiff or the dismissed defendants. (Elder v. Ottawa First Nat.
Bank, 12 Kan. 238; Chapin v. Perrin, 46 Mich. 130, 8 N. W. R. 721; Estate of Lorenz, 124
Cal. 495, 497, 498; Erlanger v. S. P. R. R. Co., 109 Cal. 395, and cases there cited; Omaha
Co. v. Maxwell, 38 Neb. 353, 360, 56 N. W. R. 1028, 1029; Jackson v. Brown, 82 Cal. 275,
278; Harvey v. Bunker Hill Co., 2 Idaho, 372, 374, 375, 2 Pac. Rep. 30, 31; S. F. H. Assn. v.
Porter, 58 Cal. 81, 83; Gillmore v. American C. I. Co., 65 Cal. 63.)
II. (c) The appellants, and the representatives of Dunphy might have had the judgment of
dismissal reviewed, vacated or set aside; but not without previous notice to the dismissed
defendants. The right to a review of the judgment by these parties was limited to an appeal
from the judgment on a bill of exceptions. (Bacon v. Robson, 53 Cal. 399, 400; Foley v.
Foley, 120 Cal. 33; Gen. Stats. 3361.) Having had an opportunity to prepare a record for an
appeal from the judgment of dismissal, and to appeal therefrom, they could not have moved
to vacate or set it aside. (Pignaz v. Burnett, 119 Cal. 157; Estate of Gregory, 122 Cal. 483;
Kubli v. Hawkett, S9 Cal.
v. Hawkett, 89 Cal. 638.) Without such opportunity they might have made such a motion,
within the time prescribed by section 3090, Gen. Stats., and appealed from a denial thereof on
a bill of exceptions. (Pignaz v. Burnett, 119 Cal. 157, 161-164, and cases there cited; Miller
v. Bate, 56 Cal. 135; Hardin v. Sinclair, 115 Cal. 460, 462, 463.)
III. (d) But the judgment of dismissal could not have been vacated or set aside on an ex
parte motion. Notice to the plaintiff as well as to the dismissed defendants would have been
essential to the jurisdiction of the court. (Greehn v. Marker, 67 Cal. 364; Wunderlin v.
Cadogan, 75 Cal. 617; Hefflon v. Bowers, 72 Cal. 270; Harper v. Hildreth, 99 Cal. 265;
Millikin v. Houghton, 75 Cal. 539; Toy v. S. F. & S. P. R. R. Co., 75 Cal. 542; Estate of
Medburry, 48 Cal. 83; Casey v. Oakes, 42 Pac. Rep. 621, 13 Wash. St. 38; Hendrickson v.
Harvey, 46 Pac. Rep. 1003, 4 Kan. App. 761.)
IV. This court has no jurisdiction to hear the appeal because the Dunphys are adverse
parties, and they were not served with the notice of appeal. After the rendition of the
judgment the representatives of William Dunphy, deceased, gave notice of their intention to
move for a new trial upon the statutory grounds: (1) Insufficiency of the evidence to justify
the decision of the court; (2) errors of law occurring at the trial and excepted to at the time by
the moving parties. The appellants, Grayson and Anderson, also gave a similar notice of
intention based upon the same two grounds, and the additional ground: That the decision of
the court is against law. Each notice was directed solely to the plaintiff and his attorneys, and
was served on the plaintiff's attorney only, and on no one else. Subsequently a joint statement
on motion for a new trial was prepared, settled and allowed on behalf of the appellants, and
the representatives of Dunphy. Afterwards, by a stipulation in writing, filed in the cause (and
in the record herein), signed by the attorneys for the plaintiff and for the parties who had
given notice of intention, the motion for a new trial was submitted to the court for decision.
Thereafter, the court on December 11, 1897, made an order denying a new trial as follows (56
Pac. R. 233): (Title of court and cause.) The motion for a new trial in the above-entitled
cause, coming on regularly for hearing this day, Byron Waters, Esq., appearing for plaintiff,
and Harry Warren, Esq.,
for hearing this day, Byron Waters, Esq., appearing for plaintiff, and Harry Warren, Esq.,
appearing for defendants Grayson and Anderson, the said motion having been duly submitted,
the court being unable to discover any error in the judgment or proceedings in said cause; the
motion for a new trial therein is denied, and new trial therein refused. December 11, 1897. A.
L. Fitzgerald, District Judge. Notwithstanding there is no other order, in the record, denying
a new trial, there is, in the record, a notice of appeal by the Dunphys from the judgment and
from the order denying them a new trial.
V. (a) The order denying a new trial is general in its terms, and does not specifically deny
the motion as to appellants only. It speaks of the motion, and that the motion for a new trial in
the cause (therein) is denied, and a new trial therein is refused. It does not characterize
the motion as being that of the appellants only. (b) The mere form of the order denying the
new trial does not warrant the conclusion that it was a denial as to the defendants Grayson
and Anderson only. The recital that they appeared by attorney, the order being otherwise
silent, is not evidence that the representatives of Dunphy did not appear to the motion. There
is no provision of law requiring the order to show that the parties, either moving or opposing,
appeared at the hearing of the motion. (Green v. Swift, 50 Cal. 454.) (c) Again, if it be the fact
that the representatives of Dunphy did not appear at the hearing of the motion, it would not
follow therefrom that the order is not broad enough to include a denial of their motion for a
new trial as well as that of Grayson and Anderson. For a party, who has given notice of his
intention to move for a new trial, does not, by failing to appear and present or argue his
motion, waive or abandon the motion. (State v. C. P. R. R. Co., 17 Nev. 259; Gen Stats. 3220;
Shafer v. Hewitt, 6 Col. App. 374, 41 Pac. Rep. 509, 510; Burnham v. Spokane Merc. Co., 18
Wash. St. 207, 51 Pac. Rep. 363.) (d) The notice should, therefore, have been directed to and
served upon the Dunphys. (Hibernia Sav. & Loan Soc. v. Lewis, 111 Cal. 519; Williams v.
Bergin, 108 Cal. 166, 171; San Bernardino Inv. Co. v. Merrill, 108 Cal. 490, 494; Senter v.
DeBernal, 38 Cal. 637; Williams v. S. C.
C. Min. Assn., 66 Cal. 193; Bullock v. Taylor, 112 Cal. 147; Estate of Scott, 124 Cal. 671;
Sansom v. Sansom, 64 Cal. 327; Bullock v. Taylor, 112 Cal. 147, 149-150.)
VI. (e) On an appeal by Grayson and Anderson, and the representatives of Dunphy,
deceased, from the judgment of dismissal, the dismissed defendants would be adverse parties
within the meaning of section 3353, Gen. Stats. A reversal of the judgment would relegate
them to their original position as parties defendant before the dismissal, without an
opportunity of being heard in support of the judgment which they would be interested in
sustaining. (Dick v. Bird, 14 Nev. 161, 163-164; Outcalt v. Collier, 58 Pac. Rep. (Okl.) 643;
In re Castle Dome M. & G. Co., 79 Cal. 249; Bullock v. Taylor, 112 Cal. 147; Pacific M. L. I.
Co. v. Fisher, 106 Cal. 224; Gutierrez v. Hebbard, 106 Cal. 167; In re Clarke, 76 N. W. R.
(Minn.) 790; Terry v. Superior Court, 110 Cal. 85; Thompson v. Ellsworth, 1 Barb. Ch. 624;
Hiscock v. Phelps, 2 Lans. 106, 118-119; Cotes v. Carroll, 28 How. Pr. 436, 446; O'Kane v.
Daly, 63 Cal. 317.) The fact that one of the defendants has suffered a default is not of itself a
reason for omitting to serve him with notice of appeal where his interests are adverse to a
reversal or modification of the judgment or order appealed from. (Lancaster v. Maxwell, 103
Cal. 67; Moody v. Miller, 33 Pac. Rep. 402, 24 Or. 179.)
VII. (f) A judgment by consent is an entirety (Union Pac. R. R. Co. v. McCarty, 8 Kan.
126), and is in the nature of a contract between the parties thereto, so that it cannot be set
aside where fraud or mistake is not shown. (Jones v. Webb, 8 S. C. 202; Semple v. Wright, 32
Cal. 659-668; Anderson v. Carr, 7 N. Y Supp. Rep. 281; Schmidt v. Oregon Gold M. Co., 28
Or. 9, 30 Pac. Rep. 406, 1014.) (g) Such judgment, although consented to by some of the
defendants only, is binding on those objecting thereto who do not appeal therefrom within
one year after its rendition. (Gen. Stats. 3352; Clyburg v. Reynolds, 9 S. E. R. 973, 979, 31 S.
C. 91; Fletcher v. Holmes, 25 Ind. 458.) (h) The court was bound to render judgment upon
the consent of the parties thereto, it being within its jurisdiction so to do. (Coultes v. Green,
43 Ill. 277.) (i) The consent by stipulation was merged in the judgment. (Holmes v. Guion, 44
Mo. 164.) (j) Since the judgment of dismissal recites that it was rendered by stipulation,
the recital makes it conclusive as a judgment by consent as between the parties thereto.
the judgment of dismissal recites that it was rendered by stipulation, the recital makes it
conclusive as a judgment by consent as between the parties thereto. (Foote v. Richmond, 42
Cal. 439; Collins v. Loyal, 56 Ala. 403; Frank v. Brooke, 4 Ill. 629; Atkinson v. Manks, 1
Cowen, 691; Hannan v. Hemphill, 7 Tex. 184.) (k) Such judgment cannot be set aside
without the consent of the parties thereto. (Perry v. Somerset R. R. Co., 89 Me. 552, 36 Atl.
Rep. 904, 905; Town of Bristol v. B. & W. Water Works, 35 Atl. Rep. (R. I.) 884.)
VIII. On an appeal from an order granting or denying a new trial, the court cannot
consider or determine the nature, scope or sufficiency of the pleadings, or the theory of the
case made thereby, or whether the judgment is supported by or is broader than the pleadings
or facts found, or whether the conclusions of law flow from the facts found. A motion for a
new trial proceeds upon a record of its own, independent of, and in a proceeding collateral to,
the record upon which the judgment depends; and the motion may be made or granted or
denied before or after the entry of the judgment, or after the judgment has become final by
failure to appeal, or by a dismissal on appeal therefrom, or by its affirmance on appeal.
(Roeder v. Stein, 23 Nev. 92, 95, 42 Pac. Rep. 867, 868; McDonald v. McConkey, 57 Cal.
325, 326; Rayner v. Jones, 90 Cal. 78, 81; Brooks v. Railway Co., 110 Cal. 173, 179; Brison
v. Brison, 90 Cal. 323, 327-328; Spanagel v. Dellinger, 38 Cal. 278, 283, 284; Thompson v.
Patterson, 54 Cal. 543, 546; Fisher v. Emerson, 15 Utah, 17, 22, 50 Pac. Rep. 619, 620;
Sheffield v. Mullin, 28 Minn. 251, 253; Bode v. Lee, 102 Cal. 583; Spanagel v. Dellinger, 34
Cal. 476; Fulton v. Hanna, 40 Cal. 278; Simpson v. Ogg, 18 Nev. 28; Tompkins v.
Montgomery, 123 Cal. 219; In re Westerfield, 96 Cal. 113; Evans v. Paige, 102 Cal. 132; In
re Redfield, 116 Cal. 637; Onderdonk v. San Francisco, 75 Cal. 534; Wheeler v. Kassabaum,
76 Cal. 90; Kelley v. Owens, 30 Pac. Rep. 596; Mason v. Austin, 45 Cal. 387; Gen Stats.
3216.)
IX. In the present case the record consists of the statement of the case prepared after the
trial. On the argument of a motion for a new trial reference may be made to the pleadings
(Stats. 1893, p. 89, amending sec. 3219, Gen. Stats.), but the reference to the pleadings is for
the purpose stated in Bode v. Lee, supra, p. 5S6. {S. P. Co. v. Superior Ct.,
in Bode v. Lee, supra, p. 586. (S. P. Co. v. Superior Ct., 105 Cal. 84.) A new trial is a
reexamination of an issue of fact in the same court, after a trial and decision by a jury, court
or referees (Gen. Stats. 3216), and is authorized for the purpose of vacating the former
verdict or decision. (Gen. Stats. 3217.) The decision which may be thus vacated is that
which was given upon the original trial on the questions of fact, and upon which the judgment
is to be entered. The provision that the judgment is to be entered upon the decision (Gen.
Stats. 3204) implies that it is subsequent to but dependent on the decision. The judgment
itself can be reviewed only by a direct appeal (Gen. Stats. 3249) taken after its rendition.
(Gen. Stats. 3352; Brison v. Brison, 90 Cal. 323; Martin v. Matfield, 49 Cal. 45; In re Doyle,
73 Cal. 571.) It follows that as upon an appeal the court can only review the action of the
court below, it cannot considerupon an appeal from an order denying a motion for a new
trialwhether the findings are sufficient to sustain the judgment, and that the examination of
the evidence is limited to a consideration of its sufficiency to sustain the findings of fact.
(Jacks v. Buell, 47 Cal. 162; Spanagel v. Dellinger, 38 Cal. 283; Taylor v. Hill, 115 Cal. 147;
Hall v. Susskind, 120 Cal. 559; Jenkins v. Frink, 30 Cal. 586; Shepard v. McNeil, 38 Cal. 72;
Prac. Act, sec. 193.) Section 193 of the practice act referred to in the last case above cited is
now section 657 of the code of civil procedure of California, similar to section 3217, Gen.
Stats. (Roberts v. Eldred, 73 Cal. 394.)
X. The order denying a new trial should be affirmed inasmuch as the lower court had no
jurisdiction except to deny the motion therefor, because of the want of parties indispensable
to the motion. The notice of the intention of the appellants was not directed to, or served on,
the Dunphys, nor was that of the latter directed to, or served on, the appellants. Each notice
did not limit the scope of the motion or the issues as to which the new trial would be sought.
The order, appearing in the record, did not specially limit the denial of a new trial as to any
particular defendants, or to any special issues. The notice of the appellants contained a ground
of motion not found in that of the Dunphys.
XI. (a) Since the notice in each case was directed to and served only on plaintiff's
attorneys, the appellants could have dismissed or abandoned their motion without being
bound by any order of the court made on the motion of the Dunphys; or the latter could
have dismissed or abandoned theirs without being affected by proceedings on behalf of
appellants on their motion.
served only on plaintiff's attorneys, the appellants could have dismissed or abandoned their
motion without being bound by any order of the court made on the motion of the Dunphys; or
the latter could have dismissed or abandoned theirs without being affected by proceedings on
behalf of appellants on their motion. And, if the construction of this honorable court, that the
order appealed from affects only the appellants, should prevail, then the Dunphys may still
abandon their motion by dismissing their appeal now pending in this court, and allowing the
judgment to stand as against them. (b) On a motion therefor, general in terms, the nisi prius
court may grant a new trial as to special issues, or as to particular parties. (Lake v. Bender, 18
Nev. 361; Duff v. Duff, 101 Cal. 1; Boehmer v. Irr. Dist., 117 Cal. 19; Jacob v. Carter, 36
Pac. Rep. (Cal.) 381; Cochrane v. Halsey, 25 Minn. 52, 65.) In such case, however, the order
should specify the particular issues as to which, or the parties as to whom, the new trial is
granted. (Mountain Co. v. Bryan, 111 Cal. 36, 38; 14 Enc. Pl. & Pr. 936-937; Bennett v.
Closon, 138 Ind. 1, 38 N. E. R. 46; Merony v. McIntyre, 82 N., C. 105; Holmes v. Goodwin,
71 N. C. 306.) The whole case must be reopened unless a partial trial can be had without
confusion resulting upon the retrial. (Ramsdell v. Clarke, 49 Pac. Rep. 591; 20 Mont. 103;
Benton v. Collins, 34 S. E. R. (N. C.) 242; Nathan v. Railway, 118 N. C. 1066, 24 S. E. R.
511-512.) But, since the order of reversal is general, its operation is to remand the case for a
new trial as to all the issues and as to all the parties as if no trial had ever been had. The
whole case is thus reopened. (14 Enc. Pl & Pr. 935-938; Hidden v. Jordan, 28 Cal. 301.) (c)
The order of reversal, therefore, vacates the decision and judgment resting thereon. The case
will stand in the lower court as it did before trial.
XII. We claim that the lower court had no jurisdictionno powerto grant the motion
made, because the notice of intention to move for a new trial was not served upon or directed
to all the adverse parties. The complaint charges the defendant as joint tort feasors; the
defendants answered separately, denying the allegations of the complaint. The issue was
whether they jointly, or at all, diverted water to the use of which plaintiff was entitled; the
decision finds that they jointly committed and threatened to continue to commit the
wrongful acts complained of under that issue and decision.
that they jointly committed and threatened to continue to commit the wrongful acts
complained of under that issue and decision. The latter could not be changed without
affecting the interests of all of the parties to it, and consequently the lower court was without
power to grant or deny the motion without having them before it. This is precisely what was
determined to be the law in Herriman v. Menzies, supra, and is fully approved in United
States v. Crooks, 116 Cal. 43, 45; In re Bullard, 114 Cal. 464. We say that the Dunphys were
adverse parties to the motion for a new trial, and that a failure to serve them with notice of
intention was fatal to the motion, and that the order of the lower court should be accordingly
affirmed. It may be that the Dunphys were wholly unconcerned in the premises, and again it
may be that their condition would be greatly improved, or much worse, at the end of another
trial. All this is immaterial. The fact is that their present condition, their legal status, may be
changed, and therefore notice to them is absolutely jurisdictional. (In re Castle Dome, 79 Cal.
246, 249.)
XIII. We submit that this position is unanswerable. The complaint charges the defendants
jointly, as joint wrongdoers; the decision finds against them jointly. Now, if it is contended
that the evidence is insufficient to justify the decision upon this pointthat the testimony
shows that the diversions and obstructions complained of were made and maintained by the
defendants severally, each acting separately and independently of the othersthen each one
of the defendants is interested in and affected by such decision, and it cannot be changed
without altering the present condition, the legal status, of every one of such defendants.
Whether the defendants acted jointly and wrongfully, or separately and rightfully, was an
issue made by the pleadings and determined by the decision. The lower court had no power to
reexamine that issue without the presence of all of the parties affected thereby. There was no
service of appellants' notice of intention upon the Dunphys, who were parties to that issue,
and therefore the district court was absolutely without jurisdiction to grant the motion.
XIV. The judgment of dismissal, being the result of the consent of both the plaintiff and
the dismissed defendants, in which they acquiesced, and from which they do not seem yet
to dissent, should not be vacated, either directly or indirectly, without giving the latter, at
least, an opportunity to be heard on that question.
consent of both the plaintiff and the dismissed defendants, in which they acquiesced, and
from which they do not seem yet to dissent, should not be vacated, either directly or
indirectly, without giving the latter, at least, an opportunity to be heard on that question.
(Ferguson v. Smith, 10 Kan. 394; Forawan v. Ward, 2 Kan. App. 739; McCallep v. Hart, 8
Mart. (N. S.) 155; Standley v. H. & G. Mfg. Co., 55 Pac. Rep. 723; Chapman v. Pocock, 7
Colo. 204.)
The petition for a rehearing, involving practically all the questions passed upon by the
court, is both voluminous and exhaustive. We do not believe it is necessary to review all the
matters contained therein, as we are satisfied that the rulings made are correct, but, as it is
apparent from the petition that counsel has mistaken the facts of the record, and the effect of
the decision, we will consider such matters set up in the petition as relate to the mistaken
facts.
The arguments of counsel with reference to the effect and scope of the order denying
appellants' motion for a new trial, and the authorities cited in support thereof, are not
pertinent to the question presented in the record and decided by the court. We were not
required by the record to determine whether the Dunphys, codefendants of the appellants, had
abandoned their motion for a new trial, and we did not so decide. Neither was it necessary to
even consider whether the record presented such a question. The record shows that the
appellants and their codefendants, the Dunphys, interposed separate motions for a new trial
based upon a joint statement of all the moving parties, and that the order of the court, for
some reason not developed by the record, denied the motion of the appellants, and did not
deny the motion of the Dunphys. To hold that the motion of the Dunphys had been denied by
the order would require the interpolation of words not in the order, or that the language used
in the order be given a meaning not authorized by any rule of construction. Concede, for the
purpose of the argument, that the language used in the order would warrant the court in
holding as counsel claim, then is respondent confronted with the fact that the Dunphys have
appealed therefrom upon the same record, seeking the same relief as was asked by the
appellants.
the fact that the Dunphys have appealed therefrom upon the same record, seeking the same
relief as was asked by the appellants. They are alike interested in the reversal of the order
upon the same record. Their interests are identical, and do not conflict, and are not in any
sense of the word adverse within the meaning of our statute.
Taking the record as it stands, the law clearly supports the decision of the court. The
Supreme Court of California has held that the notice of appeal from an order denying a
motion for a new trial need only be served upon the parties to the motion in the court below.
(Watson v. Sutro, 77 Cal. 609.)
The same court has held that even on an appeal by one judgment defendant from a
judgment perpetually enjoining the continuance of the trespass, and for damages, a motion to
dismiss the appeal based upon the fact that the notice of appeal had not been served upon
codefendants and parties to the judgment should not be sustained, the codefendants not being
adverse parties within the meaning of the statute. (Jackson v. Brown, 82 Cal. 277.)
Under the showing in the record we are unable to perceive how, or in what manner, the
affirmance or reversal of the order appealed from can affect the interest of the Dunphys in this
controversy. It will not enlarge their liabilities or increase their burdens under the decree,
neither will it change their rights under the pleadings and issues.
The claim that the notice of appeal should have been served upon the defendants as to
whom the action was dismissed is equally untenable. They were dismissed upon motion by
order of the court at the time the decision was rendered over the objection of the appellants.
Counsel assumes in his argument that in the action of the court dismissing these defendants
no other persons than the dismissed defendants could be affected in their rights. They are not
parties to the decision and judgment of the court. Their interests are not determined by the
decision and judgment of the court or by the order of the court denying the appellants' motion
for a new trial. The order denying the motion for a new trial and the judgment do not affect or
change their rights or interests in any manner. If their interests can at all be affected, it will be
only after they have been properly brought into court and after a hearing had.
into court and after a hearing had. Under a statute in Indiana, requiring that upon an appeal by
one or several parties, notice of appeal must be served upon all the other coparties, it was
held by the supreme court of that state, on motion to dismiss an appeal where coparties had
not all been served, that this requirement of the law applied to those coparties only who were
parties to the judgment. (Lowe v. Turpie, 37 L. A. R. (Ind.) 245; Alexander v. Gill, 130 Ind.
485; Koons v. Mellett, 121 Ind. 585.)
In the State of Kansas, under a statute requiring service upon the adverse party, it has
been held to the same effect. The Supreme Court of Oklahoma, under a code of civil
procedure copied from the code of Kansas, has held to the same effect, and an exhaustive
review of the rule prevailing in Kansas, and in that territory, will be found in the opinion of
that court in Board of Commissioners of Logan County v. Harvey, 49 Pac. 1006.
In addition to what has already been said, we cannot understand by what rule of practice,
statutory or otherwise, prevailing in this state, it could be successfully claimed or maintained
that the service of the notice of intention to move for a new trial, or the service of the notice
of appeal upon a person not a party to the judgment and the action at the time of such service,
would confer jurisdiction upon the trial or appellate court over such person so as to enable
either to determine any matter presented by the motion for a new trial, or in any manner make
any order or judgment affecting the rights of such person by which he would be bound.
Neither are we able to understand, as applying to the further claim of the respondent in his
petition, under what rule of law prevailing in this state could it be maintained that the reversal
of the order denying the motion for a new trial would operate to restore parties to the action
who are not parties to the judgment, and who were not parties to the action at the time the
motion was interposed and the order denied.
Neither do we know of any rule of law prevailing in this state that would compel a person
not a party to an action or judgment to come into the trial court and be heard under such
service of notice of motion or notice of appeal, or, on failure so to do, bar him of a hearing
as to the matters determined in the case.
so to do, bar him of a hearing as to the matters determined in the case. These defendants,
dismissed by the action of the court, before judgment, and before the motion for a new trial
was interposed, are as much strangers to the record as they would be had they never been
served.
It is further claimed in the petition that the failure of the appellants to serve the Dunphys,
their codefendants, with notice of intention to move for a new trial warrants this court in
dismissing the appeal. This question is not new so far as this court is concerned, and has been
directly passed upon by the Supreme Court of California. In Watson v. Sutro, supra, it was
held, in effect, that if the notice of intention to move for a new trial was not served on all the
proper parties, the matter is one for consideration on the hearing of the appeal and is not
ground for dismissal. Conceding, for the argument, that the Dunphys should have been served
with a notice of intention to move for a new trial, the respondent cannot complain of such
failure, nor can the Dunphys, as they waived such service by joining in the statement on
motion for a new trial. That such service could be waived, or the notice itself waived, is
amply supported by authority. (Dominguez v. Mascotti, 74 Cal. 269; Beck v. Thompson, 22
Nev. 109.)
The further claim is made that it appearing that the order of dismissal had been consented to
by some of the defendants, it is binding on those objecting thereto, they not having appealed
therefrom within the statutory time. It is not necessary to discuss the question whether or not
the order of dismissal is appealable under our statute. The order was made upon motion
before judgment. The appeal is not from the judgment and the order of dismissal. The cases
cited in support of respondent's contention contain, we presume, the correct rule of law to be
applied in a proper case, but there is a plain and clear distinction between the cases cited and
the case at bar. A brief review of some of the cases cited will readily make this distinction
clear.
In U.P. Railway Company v. McCarthy, 8 Kan. 126, it was sought in an action brought
upon the judgment, under an answer of general denial, to review alleged errors in the
judgment sued upon, and the court held that such errors could not be reviewed in the
actionthat, where it appeared that the trial court had jurisdiction of the subject matter
and of the parties, its judgment was final and conclusive.
could not be reviewed in the actionthat, where it appeared that the trial court had
jurisdiction of the subject matter and of the parties, its judgment was final and conclusive.
Regarding the case of Clyburn v. Reynolds, 9 S. E. Rep. 973, it is sufficient to say that the
court there held that a decree recited to be by the consent of the defendants' solicitors will
be presumed to have been consented to only by those defendants who have appeared in the
suit.
In the case at bar the consent of the appellants to the order of dismissal is directly
negatived by the record. It was made over and against their objections without their consent.
A quotation from the opinion in Fletcher v. Holmes, 25 Ind. 463, will sufficiently
distinguish that case: We can conceive of no reason why a judgment entered by agreement
by a court of general jurisdiction having power in a proper case to render such a judgement,
and having the parties before it, should not bind those by whose agreement it is entered,
notwithstanding the pleadings would not, in a contested case, authorize such a judgement.
It is not necessary to discuss further the cases cited, as we think it sufficiently appears that
they have no application whatever to the case at bar, however forceful the rules may have
been in the cases decided.
The further contention of the respondent, relating to the matters that can properly be
considered and determined under an appeal from an order denying a motion for a new trial, is
not in all respects an open one, and has, to some extent, been considered and passed upon by
this court.
The notice of intention to move for a new trial recites, among other matters, the
insufficiency of the evidence to justify the decision of the court; the insufficiency of the
evidence to justify the findings, or any of the findings, made by the court; that the decision of
the court is against the law, and that the judgment and decree are against the law. The
assignment of errors, found in the record on pages 1353 to 1361 covering these grounds, upon
which the motion is based, are full and explicit, setting out, in some instances, the particular
point of the alleged errors. The decision of the court, rendered on the 12th day of June, 1896,
and recited as having been entered in the minutes of the court, is found in the statement
on motion for a new trial on pages 1 to 5, inclusive, and shows the determination of the
facts and law by the court in precise and exact terms.
ing been entered in the minutes of the court, is found in the statement on motion for a new
trial on pages 1 to 5, inclusive, and shows the determination of the facts and law by the court
in precise and exact terms. The written findings of fact and conclusions of law were filed on
the 17th day of August, 1896, and are found in the statement on motion for a new trial, on
pages 6 to 15, inclusive. The judgment and decree ordered are found in the statement, on
pages 16 to 20, inclusive. The order dismissing Blossom, et al., from the action is also found
in the minutes of the court set out in the statement on motion for a new trial of the date on
which the decision was rendered.
The respondent cites a number of decisions of the Supreme Court of California to the
effect that, on an appeal from an order denying a motion for a new trial, the appellate court
will not consider, and has no power to consider, the sufficiency of the pleadings or errors
appearing in the judgment roll. It is not necessary to say what the rule should be in the cases
cited, as those questions are not in this case and were not decided by this court. This court
will, in such appeal, as do the courts of California, examine the pleadings to ascertain what
the issues were with reference to the decision announced by the court. Upon some of the
questions of practice in proceedings of this character, under our statute regulating the practice
in appeals from orders denying a motion for a new trial, the decisions of this court are not, or
seem not to be, in harmony with the rules announced by the decisions of the Supreme Court
of California; and we must, in all cases where there is, or seems to be, a conflict in decision
between this court and the courts of other states, follow the rule announced by this court.
Under subdivision 4 of section 659 of the code of civil procedure of California, found in
Deering's Annotated Code, the court of that state has given a meaning to the word decision,
used therein, as the facts found and conclusions of law provided for in section 633 of the
same act. (Covney v. Hale, 49 Cal. 555; Dominguez v. Mascotti, 74 Cal. 269.)
This court has given a different meaning to the same word used in the same connection. It
is said by the court: The decision is the announcement by the court of its judgment, and,
although based upon the settled facts of the case, such facts may never be reduced to
writing so as to constitute findings within the meaning of that term as used in the civil
practice act."
and, although based upon the settled facts of the case, such facts may never be reduced to
writing so as to constitute findings within the meaning of that term as used in the civil
practice act. (Elder v. Frevert, 18 Nev. 283.)
The above rule was followed and approved by this court in Robinson v. Benson, 19 Nev. 331,
also in the recent case of Robinson v. Kind, 25 Nev. 261, 59 Pac. 863.
Further, an examination of the provisions of our statutes regulating the practice in matters
of this character will, as we believe, conclusively show that the decision of this case upon a
former hearing is clearly within its scope and authority, and against the claim of the
respondent. We are also of the opinion that the rule has been declared by this court against
respondent's contention. By subdivision 6 of section 195 of our statutes (Gen. Stats. 3217) it
is provided that the former verdict or other decision may be vacated and a new trial granted
for the insufficiency of the evidence to justify the verdict or other decision, or that it is
against the law. Section 197 of the same act, providing the method of procedure for the
presentation of questions to the trial and appellate courts, under a motion for a new trial, as
amended in 1893 (Stats. 1893, p. 89), requires, among other matters, that when the notice
designates, as a ground upon which the motion will be made, the insufficiency of the
evidence to justify the verdict or other decision, it shall be a sufficient assignment of error to
specify that the verdict of the jury, or the decision, or judgment, or decree of the court, is not
supported by the evidence, or is contrary to the evidence. In such case, where it appears that
the evidence taken all together does not support the verdict, or decision, or judgment, or
decree of the court, a new trial shall be granted, or upon appeal the case shall be reversed
without regard to whether there are express findings upon all the issues, or whether the
specifications particularly point out the finding or findings, either express or implied, that are
not supported by the evidence, or are contrary thereto.
The language used as quoted in this section is clear; it cannot be misunderstood. It is
broad, and, taken in connection with the language used in subdivision 6 of section 195, above
referred to, defines explicitly the meaning of the words "other decision" used therein.
other decision used therein. If this amended section means anything, it means that under
a specification provided for in said subdivision 6, to the effect that the evidence is insufficient
to justify the decision and is against the law, under a proper record on motion for a new trial
and from an order denying the same, the appellate court is authorized to inquire into the
evidence for the purpose of ascertaining whether the decision, as defined in Elder v. Frevert,
supra, or the judgment, or decree of the court, is not supported by the evidence, or is against
the law. This is the rule of our written law in direct terms, and it is not necessary to enter into
a review or discussion of the decisions of the courts of other states having, perhaps, statutes
using different language and intended to provide a different method of procedure. Even
before the amendment to section 197 became the law, this court held that, under the
assignment or specification designated in subdivision 6 of said section 195, the court would
decide whether the findings sustained the judgment on an appeal from an order denying a
motion for a new trial, and that the action of the trial court in this respect was properly
reviewable thereunder. (Barnes v. Sabron, 10 Nev. 248.)
This decision was made before the amendment referred to was passed, and the rule was
quoted with approval in Marshall v. Golden Fleece M. Co., 16 Nev. 173. It is safe, therefore,
to conclude that the tendency of this court to construe liberally other decision, as used in
section 195, was followed by the legislature in its amendment to section 197 of the same act.
Having considered all those points in the petition that seem to possess merit, and believing
that the former decision is correct, the application for a rehearing will be denied.
Belknap, J.: I concur.
Bonnifield, C. J., dissenting:
For the reasons given in the dissenting opinion on the hearing, I think the appeal should be
dismissed.
____________
25 Nev. 346, 346 (1900) Ex Parte Dela
[No. 1577.]
Ex Parte JOSEPH DELA, Petitioner.
Criminal LawCommitmentRecitalsJudgment. The recitals of the commitment at the time of passing
sentence to the effect that the court informed the petitioner of the finding of the indictment against him
for murder, of his arraignment, plea, trial, and the verdict of the jury, are not sufficient to raise a
presumption that he had been convicted of murder in the second degree, such recitals being of mere
matters of procedure, and no part of the judgment, and which, if not included in the commitment, would
not affect the right of the warden to detain the prisoner.
IdemIdemWhen Sufficient Judgment. A judgment or commitment, reciting court and cause, and the
sentence defining the punishment, and a statement of the offense for which the punishment is inflicted, is
sufficient.
IdemHabeas CorpusJurisdiction of Court. The jurisdiction of a court or judge to render a particular
judgment or sentence by which a person is imprisoned is a proper subject to inquiry on habeas corpus.
IdemIdemIdemProcessRecord. In a proceeding on habeas corpus where is it shown by the return that
the petitioner is detained by virtue of a process issued upon a judgment of a competent court of criminal
jurisdiction, such showing is prima facie only of the fact, and may be attacked or impeached by the
record of the action, for the purpose of showing such excess or want of jurisdiction of the court or officer
rendering or issuing the same as to make its action absolutely void, and that where the record shows such
excess of jurisdiction, or such want of jurisdiction, as to render the judgment or process void, the
petitioner, under such showing, is entitled to his discharge.
IdemIndictmentMurderRapeConstitutional LawJurisdiction. Upon an indictment and trial for
murder, and a verdict adjudging defendant guilty of rape, the court has no jurisdiction to sentence and
imprison defendant for such crime of rape, since the constitution (art. I, sec. 8) requires presentment and
indictment for the particular offense before conviction is had, and, further, because the defendant is
thereby deprived of his liberty without due process of law.
IdemMurderRapeClass of OffensePunishment. Murder is a distinct class of offense under our law. It
is a generic offense. Rape is of another class, and is, also, a generic offense. Hence, the act making all
murder which shall be committed in the perpetration of arson, rape, etc., murder in the first degree, did
not create a new crime, but merely made a distinction with a view of different degrees of punishment,
based on different grades of crime.
IdemIdemCommitted in Perpetration of Other CrimeMalice Aforethought. Under our statute making
murder committed in the perpetration of rape, arson, etc., murder in the first degree, proof that the murder
was committed in the perpetration of such other offense stands in lieu of the proof of malice aforethought.
25 Nev. 346, 347 (1900) Ex Parte Dela
Original proceeding. Application by Joseph Dela for a writ of habeas corpus. Granted.
A. J. McGowan, for Petitioner.
W. D. Jones, Attorney-General, contra:
I. The return to the writ is that the prisoner is held by the warden of the state prison by
authority of a judgment of the district court of Lincoln county, wherein he was convicted of
the crime of murder, and upon such conviction was by said court sentenced to the state prison
for twenty years, and that said twenty years has not expired.
II. Habeas corpus is not a writ of error, nor can it be used to authorize the exercise of
appellate jurisdiction. In a case like this the judgment, as it appears from the return, cannot be
disregarded. Nor will the record be looked into, except to ascertain whether a judgment
exists. If the judgment is wrong, the error could only have been corrected on appeal. It cannot
be corrected on habeas corpus. (Ex Parte Winston, 9 Nev. 71; Ex Parte Twohig and
Fitzgerald, 13 Nev. 303.)
The facts shown by the petition, the return of the warden, and otherwise, are all conceded.
It was shown that the petitioner was indicted by the grand jury of Lincoln county on the 31st
day of October, 1895, for the crime of murder committed on the 13th day of October, 1895;
that he was tried therefor on the 13th day of November, 1895, in the District Court of the
Fourth Judicial District of the State of Nevada, in and for Lincoln County, by a jury, and
convicted of the crime of rape; that on the 16th day of November, 1895, he was sentenced to
serve a term of twenty years in the state prison, upon a judgment based upon said verdict
convicting him of the crime of rape.
The indictment upon which he was tried charges him with having committed the crime of
murder in the perpetration of rape upon one Liza, an Indian girl under the age of 14 years.
The commitment set up in the return of the warden, after properly stating the court and
cause, recites: "This being the time set for passing sentence, the defendant, with his
attorney, F. X. Murphy, Esq., together with the district attorney, T. J. Osborne, Esq., are in
court. The defendant, Joseph Dela, was then informed by the court of an indictment
having been found against him by the grand jury of Lincoln county, State of Nevada, on
October 31, A. D. 1S95, for the crime of murder, alleged to have been committed on or
about the 13th day of October, 1S95, at the said Lincoln county, and the State of Nevada;
of his arraignment thereon on the 4th day of November, A. D. 1S95; of his plea of not
guilty as charged in the indictment on the 4th day of November, A. D. 1S95, and of said
plea being duly entered; of his trial and the verdict of the jury on the 14th day of
November, A. D. 1S95.
25 Nev. 346, 348 (1900) Ex Parte Dela
This being the time set for passing sentence, the defendant, with his attorney, F. X.
Murphy, Esq., together with the district attorney, T. J. Osborne, Esq., are in court. The
defendant, Joseph Dela, was then informed by the court of an indictment having been found
against him by the grand jury of Lincoln county, State of Nevada, on October 31, A. D. 1895,
for the crime of murder, alleged to have been committed on or about the 13th day of October,
1895, at the said Lincoln county, and the State of Nevada; of his arraignment thereon on the
4th day of November, A. D. 1895; of his plea of not guilty as charged in the indictment on the
4th day of November, A. D. 1895, and of said plea being duly entered; of his trial and the
verdict of the jury on the 14th day of November, A. D. 1895. The defendant was then asked
by the court if he had any legal cause to show why judgment should not be pronounced
against him; no legal cause appearing, or being shown to the court why judgment should not
be pronounced in this case, the court rendered its judgment, and it is ordered, adjudged, and
decreed that you, Joseph Dela, be punished for the crime of which you have been convicted in
this court, by being incarcerated in the state prison of the State of Nevada for the term of
twenty years. Defendant is remanded to the custody of the sheriff.'
The clerk of the court certifies that the foregoing is a full, true, and correct copy of the
original judgment in the case of the State of Nevada against Joseph Dela.
The verdict returned, after reciting the court and cause, is as follows: We, the jury in the
above-entitled action, find the defendant guilty of rape. I. N. Garrison, Foreman.
The petitioner claims that under the showing made by the petition, return of the warden,
and the record, the court exceeded its jurisdiction in rendering the judgment and imposing the
sentence, and it is therefore null and void, and that the process issued thereon does not
warrant his detention.
Against this claim it is contended that the commitment set up in the return of the warden
shows that the petitioner is restrained of his liberty pursuant to a valid judgment of a
competent court of criminal jurisdiction, and a valid process issued thereon; that the court had
jurisdiction of the person of the petitioner and the subject matter, namely, the crime of
murder, charged in the indictment; and that such showing not only authorizes his
detention, but is conclusive, and cannot be attacked or impeached on habeas corpus.
25 Nev. 346, 349 (1900) Ex Parte Dela
crime of murder, charged in the indictment; and that such showing not only authorizes his
detention, but is conclusive, and cannot be attacked or impeached on habeas corpus. Is the
commitment valid, and does it show a valid judgment of a court of competent jurisdiction?
By section 450 of our criminal procedure (Gen. Stats. 4330) it is required that, when
judgment upon a conviction is rendered, the clerk shall enter the same in the minutes, stating
briefly the offense for which the conviction has been had, and shall within five days annex
together and file the following papers, which shall constitute the record of the action: First, a
copy of the minutes of any challenge which may have been interposed by the defendant to the
panel of the grand jury, or any individual grand juror, and the proceedings thereon; second,
the indictment and a copy of the minutes of the plea or demurrer; third, a copy of the minutes
of any challenge which may have been interposed to the panel of the trial jury, or an
individual juror, and the proceedings thereon; fourth, a copy of the minutes of the trial; fifth,
a copy of the minutes of the judgment, sixth, the bill of exceptions, if there be one; seventh,
the written charges asked of the court, if there be any.
By section 451 of the same act it is provided that a certified copy of the entry of the
judgment as required in section 450, supra, shall be furnished forthwith to the officer whose
duty it is to execute the judgment, and that no other warrant or authority is necessary to justify
or require the execution thereof, except when judgment of death is rendered.
We have then before us, as a part of the warden's return, a full and complete copy of the
judgment. In one essential matter it fails to comply with the requirements of section 450. It
does not briefly, or in any manner, state the offense for which the petitioner had been
convicted. We cannot know, nor can the warden know, therefrom, the offense for which the
prisoner was convicted and committed.
It appears from the judgment that the petitioner was convicted of some crime, but it is left
to be surmised what the crime is. It might be claimed, as it was claimed on the argument, that
the recitals of the commitment at the time of passing sentence, to the effect that the court
informed the petitioner of the finding of the indictment against him for murder, of his
arraignment, plea, trial, and of the verdict, were sufficient to raise a presumption that he
had been convicted of the crime of murder in the second degree.
25 Nev. 346, 350 (1900) Ex Parte Dela
petitioner of the finding of the indictment against him for murder, of his arraignment, plea,
trial, and of the verdict, were sufficient to raise a presumption that he had been convicted of
the crime of murder in the second degree.
But these recitals are no part of the judgment, and are only in keeping with the
requirements of a preceding section of the same act (section 444) as to mere matters of
procedure, and not of substantive law, which, if not included in the commitment, would not
affect or impair the right of the warden to detain the petitioner.
This has been practically so held by this court.
In Ex Parte Salge, 1 Nev. 453, it was held that a commitment which was a certified copy
of the judgment, reciting court and cause, and the sentence defining the punishment, and the
statement of the offense for which the punishment is inflicted, was a sufficient warrant for
holding a petitioner, and was a sufficient judgment.
In California, under a similar statute, the same rule prevails.
In the case of In re Ring, 28 Cal. 253, the supreme court of that state held that a certified
copy of a judgment in the hands of the warden as a commitment, which failed to state the
offense for which the prisoner had been convicted, was not sufficient to warrant his detention,
but refused to discharge him because it was shown that the judgment entered in the minutes
of the court under the requirements of the statute did contain such statement, and could
readily be obtained. The supreme court of that state has in later cases followed the rule laid
down in the case cited. (Ex Parte Raye, 63 Cal., 492; Ex Parte Williams, 89 Cal. 421.)
This court has also held a judgment of conviction void in proceedings on habeas corpus,
for uncertainty in defining the time for which the defendant was sentenced to prison. (Ex
Parte Roberts, 9 Nev. 44.)
It therefore appears from the statute and these decisions that there are two essentials to a valid
judgment of conviction, and a process of commitment issued thereon, namely, the statement
defining the punishment, and the statement of the offense for which the punishment is
inflicted.
We are unable to see why a judgment or commitment should be held insufficient for the
omission of one essential, and sufficient in case of the omission of the other.
25 Nev. 346, 351 (1900) Ex Parte Dela
should be held insufficient for the omission of one essential, and sufficient in case of the
omission of the other.
Are the recitals of the commitment, showing a judgment of a court having jurisdiction of
the offense charged and of the person of the petitioner, conclusive of the legality of the
imprisonment, and can it not be attacked or impeached on habeas corpus? By section 15 of
the act regulating proceedings on habeas corpus (Gen. Stats. 3685), it is provided that the
party brought before the judge on the return of the writ may deny or controvert any of the
material facts or matters set forth in the return, or except to the sufficiency of the same, or
allege any fact to show that either his imprisonment or detention is unlawful, or that he is
entitled to his discharge.
But this claim of conclusiveness is based upon a subsequent section of the same act (Gen.
Stats. 3689), providing that it shall be the duty of the judge, if the time during which the party
may legally be detained in custody has not expired, to remand such party, if it shall appear
that he is detained in custody by virtue of the final judgment or decree of any competent court
of criminal jurisdiction, or of any process issued upon such judgment or decree, or in cases of
contempt of court. This section does not prescribe the method by which such fact shall be
made to appear, and we must conclude that such showing was intended to be made according
to the usual method of procedure in civil actions; that is, by the record of the case. Construing
this section with section 15, supra, and with the immediately succeeding section, we think it
was clearly intended that the jurisdiction of the court should be a matter to be properly
inquired into on habeas corpus.
This not only appears to be the rule of our statute, but we believe it is the rule generally,
and is sustained by a large number of well-considered cases of the courts of other states, and
of the Supreme Court of the United States.
The jurisdiction of a court or judge to render a particular judgment or sentence by which a
person is imprisoned is always a proper subject of inquiry on habeas corpus. (9 Enc. Pl. &
Prac. 1060.)
In one case the Supreme Court of the State of New York, passing upon the precise
question raised here, namely, the conclusiveness of the showing made in the commitment
by the return of the warden, held that the petitioner could impeach the recitals in the
commitment; basing this conclusion upon the just and logical reason that, it being the
office of the writ to ascertain whether the prisoner is unlawfully imprisoned, there would
otherwise be no method of showing the want or excess of jurisdiction in the court
rendering the judgment.
25 Nev. 346, 352 (1900) Ex Parte Dela
passing upon the precise question raised here, namely, the conclusiveness of the showing
made in the commitment by the return of the warden, held that the petitioner could impeach
the recitals in the commitment; basing this conclusion upon the just and logical reason that, it
being the office of the writ to ascertain whether the prisoner is unlawfully imprisoned, there
would otherwise be no method of showing the want or excess of jurisdiction in the court
rendering the judgment. (In re Divine, 21 How. Prac. (N. Y.) 80.)
In a later case the court of appeals of the same state exhaustively discusses and reviews the
principle involved, and concludes: If the process is valid on its face, it will be deemed prima
facie legal, and the prisoner must assume the burthen of impeaching its validity by showing a
want of jurisdiction. Error, irregularity, or want of form is no objection, nor is any defect
which may be amended or remedied by the court from which it is issued. If there was no legal
power to render the judgment or degree or issue the process, there was no competent court,
and consequently no judgment or process. All is coram non judice and void. (People v.
Liscomb, 60 N. Y. 571.)
A very full discussion of the doctrine will also be found in Ex Parte Lange, 18 Wall. 163.
The Supreme Court of California has practically held to the same effect. The same doctrine is
held to be the law by the court in Ex Parte Winston, 9 Nev. 74. We must therefore conclude
that, while the court on habeas corpus has no power to inquire into mere irregularities or
errors growing out of methods of procedure which are properly reviewable on appeal, yet,
under a proper case, it will in such proceedings inquire into the jurisdiction of the court
rendering the particular judgment, to ascertain whether such judgment is void for want or
excess of jurisdiction, and to ascertain, in like manner, whether the process issued upon such
judgment under which the petitioner is held is also void.
The petitioner was indicted for the crime of murder, alleged to have been committed in the
perpetration of the crime of rape. He was tried for the crime of murder. The jury returned a
verdict which in direct terms convicts him of the crime of rape. The court sentenced him to
twenty years' imprisonment for the commission of the crime of which he had been
convicted.
25 Nev. 346, 353 (1900) Ex Parte Dela
years' imprisonment for the commission of the crime of which he had been convicted.
Murder is defined by our statute (Gen. Stats. 4579) as the unlawful killing of a human
being with malice aforethought, either express or implied. The unlawful killing may be
effected by any of the various means by which death may be occasioned.
By section 17 of the act (Gen. Stats. 4581) it is provided, among other matters, that all
murder which shall be perpetrated by means of poison or lying in wait, torture, or by any
other kind of willful, deliberate, and premeditated killing, or which shall be committed in the
perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed
murder in the first degree, and shall be punished by the death of the person committing. By
section 412 of the criminal procedure (Gen. Stats. 4292) it is provided that in all cases the
defendant may be found guilty of any offense, the commission of which is necessarily
included in that with which he is charged in the indictment, or may be found guilty of an
attempt to commit the crime charged. We presume the judgment of the court, imprisoning the
petitioner, was based upon this section of the statute.
It is hardly necessary to discuss the question as to whether or not the crime of rape is
necessarily included in the crime of murder. Murder is a distinct class of offense under our
law. It is a generic offense. Rape is of another class. It also is a generic offense.
The legislature, in passing the act making all murder which shall be committed in the
perpetration of arson, rape, etc., murder in the first degree, did not create a new crime, but
merely made a distinction with a view of different degrees of punishment, based upon
different grades of crime.
It was not necessary at common law to even charge that murder was committed in the
perpetration of another crime, and it was sufficient to charge it in the common form; and,
upon proof that the crime was committed in the perpetration of another crime, such proof
stood in lieu of the proof of malice aforethought. This doctrine is sustained by ample
authority of the courts of other states under statutes similar to ours.
25 Nev. 346, 354 (1900) Ex Parte Dela
In State v. Meyers, 99 Mo. 113, it is said by the court: The perpetration or the attempt to
perpetrate any of the felonies mentioned in the statute during which attempt, etc., the
homicide is committed, stands in lieu of, and is the legal equivalent of, that premeditation,
deliberation, etc., which otherwise are necessary attributes of murder in the first degree. To
the same effect are the following authorities: People v. Giblin, 115 N. Y. 197; State v.
Johnson, 72 Iowa, 400; Titus v. State, 49 N. J. Law, 36; Com. v. Flanagan, 7 Watts & S.
(Pa.) 418.
It is conceded that the court had jurisdiction of the person of the petitioner, and jurisdiction
of the subject matter, namely, the crime of murder, of which he was charged.
It is also conceded that the court had jurisdiction to try and punish a person charged with
rape. But can we hold, under the showing made by the record, that the court had jurisdiction
to render the judgment of imprisonment in this particular case?
It is not sufficient to say that as the court has jurisdiction of the person, and jurisdiction to
try, convict, and punish for certain crimes, it necessarily has the jurisdiction over the subject
matter in a particular case.
The exercise of jurisdiction in this and all cases of felony depends upon certain
indispensable conditions and requirements, the absence of which renders the action of the
court not merely irregular, erroneous, and voidable, but absolutely void. By section 8, art. I,
of the constitution, it is provided, in prohibitive terms, among other matters, that a person
shall not be tried for a capital or other infamous crime (except in certain specified cases, of
which the case at bar is not one), except on presentment or indictment of a grand jury, and
that a person shall not be deprived of his life, liberty, or property without due process of law.
Can it even be pretended that the court, in the face of these direct and prohibitive terms of
the constitution, could render a valid judgment of imprisonment for an offense of which it has
jurisdiction, without presentment or indictment charging the particular offense?
Would not the action of the court in such proceeding be utterly void, because of excess
jurisdiction, and because it deprived the party of his liberty without due process of law?
25 Nev. 346, 355 (1900) Ex Parte Dela
deprived the party of his liberty without due process of law?
The question involved is not one of irregularity, growing out of rules of procedure, but is
one of substantive law, based upon the direct terms of a constitutional guaranty. It is claimed
that the record shows that the prisoner was indicted, tried, convicted, and sentenced for the
crime of murder. By supplying presumptive facts, this contention is probably correct; but the
proven facts of the record contradict and impeach these presumptions, and show conclusively
that the petitioner was convicted of the crime of rapea crime for which he was neither
indicted nor tried, and of which he could not have been convicted under the charge contained
in the indictment.
Finally, we conclude that in a proceeding on habeas corpus, where it is shown by the
return that the petitioner is detained by virtue of a process issued upon a judgment of a
competent court of criminal jurisdiction, such showing is prima facie only of the fact, and
may be attacked or impeached by the record of the action, for the purpose of showing such
excess or want of jurisdiction of the court or officer rendering or issuing the same as to make
its action absolutely void, and that where the record shows such excess of jurisdiction, or
such want of jurisdiction, as to render the judgment or process void, the petitioner, under such
showing, is entitled to his discharge.
Believing the judgment in this case to be void because the court had no jurisdiction of the
subject matter, that is, of the crime for which he was convicted, for the reason that the
defendant was neither indicted nor tried for the crime of rape, and that the execution of the
judgment deprives the petitioner of his liberty without due process of law, the commitment
issued on said judgment does not justify his further detention, and he will accordingly be
discharged.
____________
25 Nev. 356, 356 (1900) Washoe County v. Eureka County
[No. 1576.]
WASHOE COUNTY, Appellant, v. EUREKA COUNTY,
Respondent.
PaupersLiability of County for Relief. The liability of a county for the support of its poor exists only in
pursuance of the positive provisions of the statute, and, in order for a county to be liable in such a case, it
must come squarely within the statute.
IdemIdemNotice. When one county furnishes relief to a pauper resident of another county, the latter county
incurs no legal liability to the former county therefor, unless the statutory notice is given.
IdemIdemIdemTime of Giving. It is required by section 8 of the act relating to the support of the poor
that the notice therein provided for shall be given immediately upon the furnishing of the temporary
reliefthat is, as soon as practicable, or without unnecessary delay. When not so given, a county
furnishing relief to a pauper resident of another county cannot recover of the other county for any relief
furnished prior to the giving of the required notice.
IdemIdemIdemEssential Requisites of NoticeCounty Commissioners. It is essential to the validity of a
notice given under the provisions of section 8 of the aforesaid act, that it shall emanate from the board of
county commissioners who are charged with the care of the poor, and that it shall tend to show that it is
from that official body, and that it be attested by the clerk of such board.
IdemIdemIdemIdemAttestationCounty Clerk. An attestation of the notice, to be served upon the
board of county commissioners of another county under the provisions of the act relating to the support
of the poor, by the county clerk, simply as such clerk, is not an attestation by the clerk of the board of
county commissioners, as the statute requires, for the reason that the two offices are distinct.
IdemIdemIdemIdemIdem. Gen. Stats. p. 541, secs. 7, 8, provide that when a pauper, applying to
county commissioners for relief, has not been a resident of the county for six months such commissioners
shall provide temporary relief, and immediately notify the county commissioners of the county where
such pauper last had a six months residence, which notice shall be in writing, attested by the clerk of the
board, and directed to the county commissioners of such county; and that the county furnishing such
necessary temporary relief shall have a claim therefor on refusal of the county where he had acquired a
residence to remove him: Held, that a notice given by a county clerk, and attested by him as such, and not
as clerk of the county commissioners, notifying another county that a pauper resident thereof had applied
for aid, etc., not directed to the county commissioners of such county, was insufficient, in the absence of
proof that it was received by them, to charge such county with liability under the statute, though such
clerk was ex officio clerk of the board of county commissioners of the county furnishing relief.
Appeal from the First Judicial District Court, Ormsby County; C. E. Mack, Judge.
Action by Washoe County against Eureka County. From a judgment in favor of defendant,
plaintiff appeals. Affirmed.
E. L. Williams, District Attorney, and Frank H. Norcross, for Appellant:
I. The evidence establishing that the notice was shown to one of the commissioners,
personally, and afterwards filed with the clerk of the board of commissioners, is sufficient
proof of receipt of such notice by the commissioners of Eureka county. The evidence shows a
sufficient service of the notice to be binding on the defendant county. In cases of the character
of the one before the court, the only object of the notice is to apprise the county or
municipality to be charged with relief that a pauper is receiving relief from another county or
municipality, and that the county notified will be held responsible. If the law is substantially
complied with it is sufficient. (Cerro Gordo Co. v. Wright Co., 50 Iowa, 442; Code of Iowa,
1873, sec. 1357; La Crosse v. Melrose, 22 Wis. 462; Newton v. Danburry, 3 Conn. 558;
Elsworth v. Houlton, 48 Me. 421; Kenneburkport v. Buxton, 26 Me. 66; Westminster v.
Bernardson, 8 Mass. 104; Rogers v. Newburry, 105 Mass. 534; 18 Am. & Eng. Enc. 816,
note 5, 816.)
II. There is no reason for applying to such notice under our statute the strict rule applied
by the Massachusetts cases to such notices under the statutes of that state, because that made
the notices conclusive upon the town notified, of all the facts stated, unless the notice was
denied within a limited time. In Cerro Gordo Co. v. Wright Co., 50 Iowa, 443, the court says:
It surely cannot be claimed, where a person having a legal settlement in one county becomes
sick and disabled in another, that it is necessary to convene the boards of supervisors of both
counties in order that notice may be given so that the proper county may be charged with the
aid furnished.
III. As having a bearing upon the question of the notice and the service thereof, there are
some important facts which evidently were inadvertently omitted from the copious
findings of the trial court.
evidently were inadvertently omitted from the copious findings of the trial court. It appears,
from the official records of Eureka county, that for several years prior to August 1, 1892, this
man Fitzgerald was an inmate of the Eureka county hospital; and, further, that, at a regular
meeting of the board of commissioners of Eureka county, there was entered upon the minutes
of the board the following order: Ordered, that $50 be allowed for the purpose of assisting
John Fitzgerald, an indigent sick person, to reach his friends in San Francisco, and that said
$50 be drawn by Commissioner Ferraris, who is authorized to carry out the above order. It
therefore appears that, at the time the notice was sent by the clerk of Washoe county, all of
the facts regarding this man Fitzgerald were well known to the officials of Eureka county.
There was no need of any notice to inform them that Fitzgerald was resident of Eureka
county, or that he was a pauper and in need of relief. All that was necessary was to inform
them that Fitzgerald was in Washoe county and request them to remove him. In view of all
the facts in the case, it seems to us ridiculous that sufficient information was not conveyed to
the board of commissioners of Eureka county to be binding. We submit that, in view of the
facts of this case, Eureka county is estopped from questioning the formality and due service
of this notice.
IV. The putting of a letter into the mail is made, by the statute for the support of the poor,
sufficient evidence that notice was given. (Gen. Stats. 1988; 18 Am. & Eng. Enc. Law, 888c.)
George A. Bartlett, District Attorney, and Thomas Wren, for Respondent:
I. Section 8 provides that the board of county commissioners granting temporary relief to
a pauper a resident of another county shall notify the board of commissioners of the county
where the pauper last resided in regard to the action taken, and shall request the pauper's
removal to the proper county. The clerk of the board of county commissioners is not
authorized to send a notice either upon his own motion or by direction of the chairman of the
board. The only authority that he has to act in the premises is to attest the notice sent by the
board that he is the clerk of the board of the county of which the pauper was last a
resident.
the notice sent by the board that he is the clerk of the board of the county of which the pauper
was last a resident.
II. It seems clear that the law makes it the duty of the board to whom a non-resident
pauper applies for relief to require satisfactory evidence that he is a pauper and in need of
immediate relief, and that he was a resident of some other county of the state within the six
months immediately preceding his arrival in the county where he makes his application, and
that the facts should be entered of record and the proceedings of the board, and that then an
order should be made directing the clerk to make a copy of the record, certify to it under the
county seal and forward it to the board of county commissioners of the proper county,
accompanied with the proper request.
III. The statute for the relief and support of the indigent poor is purely statutory and to render
the county liable the case must come fairly within the statute. The whole matter is entirely
within the control of the legislature, and the duty of aiding and supporting, or of relieving,
those temporarily in need of assistance may be imposed by that body upon counties or towns
in such manner as it may deem proper. (Lander Co. v. Humboldt Co., 21 Nev. 415.)
This action was brought by Washoe county against Eureka county to recover the sum of
$2,132 for relief furnished by the plaintiff to one John Fitzgerald, in plaintiff's county
hospital, from the 23d day of August, 1892, to the 30th day of June, 1898.
It is alleged that Fitzgerald was a pauper and resident of Eureka county. The case was tried
by the court without a jury. The trial resulted in a judgment in favor of the defendant for its
costs, taxed at $59. This appeal is from the judgment and an order denying plaintiff's motion
for new trial.
An act relating to the support of the poor vests the board of county commissioners of the
several counties with entire and exclusive superintendence of the poor in their respective
counties. (Gen. Stats., p. 540)
Section 7 of that act provides: When an application is made by any pauper to the board
of county commissioners of any county in this state for relief, it shall be necessary for said
commissioners to require of said pauper satisfactory evidence that he or she has been a
resident of said county for six months immediately preceding the day upon which such
application is made, or if such is not the case, satisfactory evidence in regard to where
said pauper last resided for six months prior to arrival in the county where such
application is made."
made by any pauper to the board of county commissioners of any county in this state for
relief, it shall be necessary for said commissioners to require of said pauper satisfactory
evidence that he or she has been a resident of said county for six months immediately
preceding the day upon which such application is made, or if such is not the case, satisfactory
evidence in regard to where said pauper last resided for six months prior to arrival in the
county where such application is made.
Section 8 provides: When application is made by any pauper to the board of county
commissioners aforesaid, and it shall appear, to the satisfaction of said board, that the person
so applying for relief has resided in said county agreeably to the provisions of the foregoing
section of this act, said pauper shall be entitled to all of the relief provided by this act; but if,
on the contrary, it shall appear to the satisfaction of said board, that such pauper has not been
a resident of said county agreeable to the provisions of the foregoing section, but that said
pauper, previous to removing to the said county where said application is made, was a
resident of some other county of this state, said board shall provide temporary relief for said
pauper and immediately notify the board of county commissioners of the county where said
pauper last had a residence for six months, and said notice shall be in writing, duly attested by
the clerk of the board of county commissioners, and deposited in the postoffice, addressed to
the board of county commissioners of said county, and it shall be the duty of the board of
county commissioners receiving said notice to cause said pauper to be immediately removed
to their county and pay a reasonable compensation for the temporary relief afforded, and if
said board of commissioners neglect or refuse to remove said pauper, the county affording
relief shall have a legal claim against said county for all relief necessarily furnished and may
recover the same in a suit at law.
A great many questions were raised and elaborately argued by respective counsel as to the
powers and duties of boards of county commissioners with respect to furnishing relief to
paupers, and as to what was done and what not done by the Washoe county board, in
Fitzgerald's case, with respect to complying with the provisions of said sections 7 and S of
the statute.
Washoe county board, in Fitzgerald's case, with respect to complying with the provisions of
said sections 7 and 8 of the statute. Appellant's counsel claimed that the evidence showed that
said board did all that was necessary under the statute, while counsel for respondent
contended that there was no evidence tending to show that the board did anything in that
respect. It will be sufficient to consider the questions raised concerning the notice required to
be given by said section 8.
The liability of a county for the relief and support of its poor is purely statutory, and, to
render a county liable, the case must come fairly within the terms of the statute. The liability
exists only in pursuance of the positive provisions of the statute. (Lander Co. v. Humboldt
Co., 21 Nev. 415, 32 Pac. 849.)
When one county furnishes relief to a pauper resident of another county, the latter county
incurs no legal liability to the former county therefor, unless the statutory notice is given,
however strictly the board of commissioners of the county furnishing the relief may follow
the requirements of the statute in other respects.
With respect to such notice the witnesses testified to their best recollection as to what had
occurred about six years before in relation thereto, and the evidence on the part of the plaintiff
was to the effect that T. K. Hymers, the chairman of the board of county commissioners of
Washoe county, requested or directed O. H. Perry, the county clerk of that county, to notify
the board of county commissioners of Eureka county, through their clerk, of John Fitzgerald
being an inmate of the hospital of Washoe county, and to ask them what disposition they
wished made of him. (Hymer's testimony.)
O. H. Perry, the county clerk of Washoe county in 1892, in answer to questions, testified:
QuestionDid you have anything to do, in your official capacity as county clerk, concerning
the said John Fitzgerald? You may state fully, Mr. Perry, what you did in your official
capacity relative to the said John Fitzgerald. AnswerI notified the board of county
commissioners of Eureka county that he was here in the county hospital in Washoe county,
and would be kept at the expense of Eureka county, and for them to come and take him
away immediately.
in the county hospital in Washoe county, and would be kept at the expense of Eureka county,
and for them to come and take him away immediately.
Q.How did you notify them? A.By the usual clerk official paper under seal.
Q.To whom was the communication you have referred to addressed? A.I addressed
the letter to the board of county commissioners of Eureka county, Nevada.
Q.What is your best recollection as to the words used by you in the address upon the
envelope? A.To the Clerk of the Board of County Commissioners, Eureka County,
Nevada.'
Witness testified that he put the communication in an envelope, which was stamped with
United States postage stamps of proper amount, and mailed it; and that his authority for
making out and sending the said notice was the request of the chairman of the board of
commissioners of Washoe county.
W. S. Beard, who was the county recorder and ex officio auditor of Eureka county in 1892,
was called as a witness for plaintiff and testified that some time after Fitzgerald left Eureka
county, he (witness) received in his mail a letter from Washoe county officials; that it was a
demand, or notification, or something of that kind, stating that John Fitzgerald was in Reno;
that he showed the letter to Ferraris (a county commissioner of Eureka county) at his place of
business, and took it upstairs, and turned it over to the clerk, or his deputy; that the envelope
containing the letter was addressed to the recorder or clerk; that it was more than likely that it
was addressed to the recorder; that on the inside of the letter it was addressed to the board of
county commissioners, or the clerk.
The above is the substance of the testimony relating to said letter, or notice, or
communication given on the part of the plaintiff.
The testimony on the part of the defendant was to the effect, and it tends to show, that no
such notice, letter, or communication was received by the board of county commissioners of
Eureka county.
There is no evidence that said board received any notice from the board of county
commissioners of Washoe county that they had furnished any relief to said pauper, until
in July, 1S9S, when they received a bill from the plaintiff, on which this suit was brought.
from the board of county commissioners of Washoe county that they had furnished any relief
to said pauper, until in July, 1898, when they received a bill from the plaintiff, on which this
suit was brought. That was nearly six years after said pauper was admitted to the Washoe
county hospital, and a few days after the expiration of the 2,132 days the plaintiff had
furnished relief to said pauper.
It is required by said section 8 that the notice therein provided for shall be given
immediately upon the furnishing of the temporary relief; that is, as soon as practicable, or
without unnecessary delay. When not so given, a county furnishing relief to a pauper resident
of another county cannot recover of the other county for any relief furnished prior to the
giving of the required notice. It appears that all the relief furnished said pauper for which this
action was brought was so furnished prior to the presentation of said bill to the board of
county commissioners of Eureka county. If said bill was sufficient in form and substance to
meet the requirements of said section 8 with respect to the written notice to be given, the
delay in giving it rendered it worthless.
As to the letter, or notice, or communication to which O. H. Perry testified, we fail to find
any evidence tending to show that it was written, given, or communicated by the board of
commissioners, or by their authority, or that they acquired any knowledge thereof until nearly
six years after the said county clerk prepared and mailed the same.
We fail to find any evidence tending to show that said letter, notice, or communication
purported to be from, or by the authority of, the board of county commissioners of Washoe
county; but the evidence tends to show that it appeared upon its face that it was from O. H.
Perry, county clerk of Washoe county, and that it emanated from him in his official capacity
as such county clerk. The statute does not require or authorize the notice mentioned in said
section 8 to be given by the county clerk.
We think it is essential to the validity of such notice that it shall emanate from the board of
county commissioners, and that it shall tend to show that it is from that official body.
The statute provides that said notice shall be in writing, and attested by the clerk of the
board of county commissioners."
and attested by the clerk of the board of county commissioners. There is no evidence tending
to show that said letter, or so-called notice, was so attested. The county clerk of the
respective counties is ex officio clerk of the board of county commissioners of his county.
But it is well settled that making a person an ex officio officer by virtue of his holding
another office does not merge the two into one. (7 Am. & Eng. Enc. Law, 487, note 7; State
v. Laughton, 19 Nev. 205, and cases there cited.)
In Denver v. Hobart, 10 Nev. 321Denver being then lieutenant-governor and ex officio
warden of the state prisonit was held that the two offices were as distinct as though held by
different persons; that the duties and obligations of the one are entirely independent of the
duties and obligations of the other.
And so it may be said with respect to the offices of county clerk and clerk of the board of
county commissioners. An attestation by the county clerk, simply as such clerk, is not such an
attestation by the clerk of the board of county commissioners as said statute requires. Even if
the notice was sufficient in all other respects, it was not given as the statute provides. Counsel
contend that, said notice having been placed in an envelope, properly stamped, deposited in
the postoffice, and addressed to the clerk of the board of county commissioners of Eureka
county, that that was sufficient.
But we cannot agree with counsel in that contention. If the body of the letter be regarded
as sufficient in substance to constitute the required notice, yet it might as well have been
deposited in the waste basket as in the postoffice, in the absence of proof that it was received
by the board of county commissioners. The statute in this case required the notice to be
deposited in the postoffice, and addressed to the board of county commissioners of Eureka
county. It was not so addressed, and no presumption can be indulged that said board received
it.
The plaintiff is not entitled to the benefit of any presumption against the defendant with
respect to the required notice until it shows that the provisions of the statute relating thereto
were strictly complied with on the part of its proper officers.
The statute relating to the support of the poor plainly defines the powers vested in and the
duties imposed upon the boards of county commissioners of the several counties, and the
counties' liability in regard to the support of the poor.
If reasonable attention is given to the statute, there can be no serious difficulty encountered
in complying with its directions. The failure to give the statutory notice is fatal to the
plaintiff's case. The notice relied upon by the plaintiff was fatally defective in the particulars
above given.
The judgment and order from which this appeal is taken are affirmed.
____________
25 Nev. 365, 365 (1900) Pratt v. Stone
[No. 1572.]
ZENAS PRATT, Petitioner, v. W. H. STONE, Justice
of the Peace of Carson Township, Respondent.
Justice of the PeaceSummonsAffidavit for Publication. Comp. Laws 1900, sec. 3125, authorizes the justice
to direct service of summons by publication, where it appears by affidavit or by verified complaint that
the defendant resides without the state, and that a cause of action exists against him: Held, that an
affidavit stating that a complaint had been filed to recover a sum of money, which cause of action was
fully set out therein, and making the complaint a part of the affidavit, was sufficient to authorize the
justice to order service of summons by publication, though the complaint consisted merely of a copy of
an account for goods sold and delivered.
IdemAttachmentAffidavit. Comp. Laws 1900, sec. 3219, declares that the clerk shall issue an attachment
on an affidavit showing the nature of plaintiff's claim, that the same is just, the amount affiant believes
plaintiff is entitled to recover, and the existence of any one of the grounds for attachment; and section
3622 makes such section applicable to justices' courts: Held, that an affidavit reciting that an action had
been brought to recover a sum of money for goods sold and delivered at defendant's request, and that
defendant was indebted to plaintiff in such sum over and above all set-offs or counterclaims, and averring
the existence of two grounds for attachment, was sufficient to warrant the issuance of an attachment by a
justice of the peace.
ItemSummonsServiceJurisdiction. Comp. Laws 1900, sec. 3539, declares that when a summons is
served by publication, or without the state, the time for appearance shall not be less than six weeks from
the issuance of the summons, and that, when publication is ordered, personal service shall be equivalent
to publication, etc., and that service by publication shall be complete at the expiration of six weeks from
the first publication: Held, that a justice of the peace had no jurisdiction to enter a judgment
in a case where the summons was personally served on defendant without the state
in lieu of publication until after the expiration of six weeks from date of service.
25 Nev. 365, 366 (1900) Pratt v. Stone
peace had no jurisdiction to enter a judgment in a case where the summons was personally served on
defendant without the state in lieu of publication until after the expiration of six weeks from date of service.
IdemAppealJurisdiction. An appeal will not lie from a judgment entered by a justice of the peace before he
had acquired jurisdiction of the person of the defendant, but it may be annulled on certiorari.
IdemSummonsServiceResidence of Defendant Unknown. Where an affidavit for publication of
summons sets forth that the defendant is a non-resident of this state, but is a resident of the State of
California, county unknown, it is not necessary to deposit in the postoffice a copy of the complaint and
summons. The statute requires such deposit only in case the place of residence of the defendant is known.
Original proceeding. Certiorari by Zenas Pratt against W. H. Stone, as Justice of the
Peace, to annul certain judgments. One judgment set aside, and writ dismissed as to
remaining judgments.
Edward Dupuis, for Petitioner:
I. If a judgment be rendered by a justice of the peace in a case in which he has acquired
no jurisdiction, his action is void; and, where there is no other plain, speedy and adequate
remedy, it will be annulled on certiorari. (Roy v. Whitford, 9 Nev. 370; Wiggins v.
Anderson, 22 Nev. 103.)
II. The affidavits for the order for publication of the summons in all three of the cases
brought to this honorable court for review are wholly insufficient, in that they each utterly fail
to show that a cause of action exists against the defendant in respect to whom service of
summons is to be made. This is a jurisdictional fact which must appear by the affidavit, and
if it does not, the order based upon it is void. To obtain a legal service by publication of a
summons against a non-resident, it must appear by affidavit, not only that the defendant is a
non-resident, but also that a cause of action exists against him; and a judgment procured
against him in such a case before a justice of the peace, when the latter fact does not appear
by affidavit, is void. (Little v. Currie, 5 Nev. 90; Victor M. & M. Co. v. Justice Court, 18
Nev. 23.) III.
25 Nev. 365, 367 (1900) Pratt v. Stone
III. The judgments in the cases of O. T. Schulz v. Zenas Pratt and W. F. Day v. Zenas
Pratt, are both void for the reason that it does not appear from the record certified to this
court that in either case was there made a deposit of the complaint and summons in the
postoffice directed to the place of residence of the defendant as required by law, although, in
the affidavit of the plaintiffs, they each state his residence to be in California. This is
undeniably fatal. Where a party relies upon the publication of summons, it is necessary not
only to publish a copy of the summons, but to deposit another copy in the postoffice directed
to the defendant at his place of residence, if known; and the statute prescribes that such
deposit shall be proved by affidavit. (Scorpion M. Co. v. Marsano, 10 Nev. 370.)
IV. In the case of E. J. Walsh and C. E. Wylie v. Zenas Pratt, it will be seen that in the order
granting the right to publish the summons, made by the respondent, he goes out of the
affidavit to find that a cause of action exists against the defendant to be served. The order
says: It also appearing from the complaint on file that a good cause of action exists in the
action in favor of the plaintiffs, etc. The justice cannot go outside of the affidavit to be
satisfied as to the existence of a good cause of action against the defendant. (Crandall v.
Bryan, 15 How. Pr. 342; V. M. M. Co. v. Justice Court, 18 Nev. 22; Forbes v. Hyde, 31 Cal.
342.)
V. True, it is, each assert that the affiant has a cause of action against Zenas Pratt, but
this is not a statement of a fact tending to prove such a proposition, but a general assertion or
opinion that the proposition is true. But it is the province of the court to determine that
question upon the facts to be stated in the affidavit. A general statement that the plaintiff has
a cause of action against the defendant is not sufficient. It does not make the matter appear to
the court. The facts necessary to show that a cause of action exists must be stated. Concerning
the material circumstances of time, place and amount, these affidavits are wholly silent, and
whether the supposed causes of action arose upon an indebtedness of one mill for a small
measure of moonshine or a million of dollars for as many miles of land is left to conjecture.
(Neff v. Pennoyer, 3 Saw. 290; Ricketson v. Ricketson, 26 Cal. 153; Forbes v. Hyde, 31 Cal.
342; Braley v. Seaman, 30 Cal.
25 Nev. 365, 368 (1900) Pratt v. Stone
Ricketson v. Ricketson, 26 Cal. 153; Forbes v. Hyde, 31 Cal. 342; Braley v. Seaman, 30 Cal.
610.)
VI. The affidavits in all the cases before this court are insufficient in that they fail to state
any facts showing the residence of the defendant. They each contain the statement that
defendant is a non-resident of this state, but is a resident of the State of California, county
unknown. An affidavit to obtain an order for the publication of summons on the ground
that the defendant cannot, after due diligence, be found within the state, which does not state
whether the residence of the defendant is known, and does not show that the affiant does not
know where the defendant may be found, is insufficient to authorize the publication of
summons. (Braley v. Seaman, 30 Cal. 612; Ricketson v. Ricketson, 26 Cal. 154.)
VII. The various writs of attachment issued by the respondent in the cases before the court
are also insufficient and the orders issuing thereon were coram non judice and void. The
amended act regulating proceedings in civil cases in this state (sec. 124, p. 55, Stats. 1897),
which is made applicable to justice courts, says that the justice shall issue the writ of
attachment upon receiving an affidavit, by or on behalf of the plaintiff, showing: The nature
of the plaintiff's claim, that the same is just, and the amount which the plaintiff believes he
is entitled to recover. The affidavits in all of these cases, as the record speaks, fail to
enumerate two of the essentials which the statute requires. They omit to state that the same
is just and the amount which affiant believes the plaintiff is entitled to recover. That is
fatal. (Drake on Attachments, p. 86, sec. 95; 33 How. Pr., p. 134; Moore v. Harrod, 40 S. W.
Rep. 675; Rudolph v. Saunders, 111 Cal. 233; Anderson v. Sutton, 2 Duval Ky. 481; Bray v.
McClury, 55 Mo. 274; McElwee v. Steelman, 38 S. W. 275.)
M. A. Murphy and J. E. Walsh, for Respondent:
I. The court having jurisdiction of the subject matter of the controversy, it also had
jurisdiction to make the order for the publication of summons, and if error was committed
(which we deny), it was an error of law and not a want of jurisdiction. "The affidavit for
publication of summons which shows that the party upon whom service is to be made
resides out of the state is sufficient."
25 Nev. 365, 369 (1900) Pratt v. Stone
jurisdiction. The affidavit for publication of summons which shows that the party upon
whom service is to be made resides out of the state is sufficient. (Gen. Stats. 3539; Legare v.
California S. R. R. Co., 76 Cal. 611; Furnish v. Mullan, 76 Cal. 646.)
II. Great strictness in the form of the affidavit for an attachment is not required, as the
defendant is protected by the plaintiff's bond. (Bowers v. Beck, 2 Nev. 146; 3 Enc. Pl. & Pr.,
p. 11; Curtis v. Settle, 7 Mo. 452; Graham v. Ruff, 8 Ala. 171; Wiltoe v. Stearns, 13 Iowa,
282; Wallis v. Wallace, 6 How. Miss. 254; Parmele v. Johnson, 15 La. 429; Cross v.
McMaken, 17 Mich. 511.)
III. Where the statute requires the affidavit to show that the plaintiff's claim is just, it is
sufficient either to simply allege that it is just, or, without such direct statement, to allege
facts concerning the plaintiff's claim which show that it is just. (Livengood v. Shaw, 10 Mo.
275; Kennedy v. Morrison, 31 Tex. 216; Fourtellott v. Wilkins, 28 Kan. 833; Ludlow v.
Ramsay, 11 Wall. U. S. 587.)
IV. The fact that a cause of action exists may be shown either by affidavit or by the
verified complaint on file. If the complaint be not verified, the affidavit may refer to and
adopt the statement; in such case, the oath to the affidavit is an oath to the contents of the
document referred to and adopted. (Legare v. California S. R. R. Co., 76 Cal. 611; Stats.
1889, p. 22.)
V. Section 3539 of the General Statutes provides that when the summons is to be served
by publication or out of the state it shall be made returnable at any time designated by the
justice, not less than six weeks nor more than four months from its issuance. In the action at
bar the summons was issued June 26, 1899, and made returnable August 7, 1899, which was
six weeks from the date of its issuance. Under the provisions of the same section it is not
necessary after obtaining an order directing the publication of the summons to publish the
same, for the same may be disregarded if it can be personally served on the defendant out of
the state and this is deemed equivalent to publication and deposit in the postoffice. The
summons in this action was personally served on the defendant in the city and county of San
Francisco, State of California, on the 21st day of July, 1S99, and he was not required to
appear until the 7th day of August, 1S99.
25 Nev. 365, 370 (1900) Pratt v. Stone
San Francisco, State of California, on the 21st day of July, 1899, and he was not required to
appear until the 7th day of August, 1899. There is no provision under the law in actions in the
justice's court giving the defendant a certain number of days after the service of summons
within which to appear and plead, but the law requires at the outset that a specified time be
designated in the summons, before its issuance, for the defendant to appear, and upon the
return day mentioned in the summons the plaintiff is entitled to judgment. (Kessler v. Vara,
54 N. Y. S. 142.)
In an action brought before respondent, as justice of the peace of Carson township,
Ormsby county, wherein C. E. Wylie and Ed. J. Walsh were plaintiffs, and Zenas Pratt, the
petitioner was defendant, judgment by default was given against said petitioner for $56.99
and costs.
The petitioner seeks, by certiorari, to have said judgment declared null and void, on the
ground that respondent exceeded his jurisdiction in giving the same.
The justice made an order for the publication of the summons, and directed that a copy of
the summons and complaint be deposited in the postoffice, etc.
Counsel for petitioner contends that the justice exceeded his jurisdiction in making said
order, for the reason that the affidavit for the publication of summons was fatally defective, in
that it did not appear therefrom that a cause of action existed against the defendant in respect
to whom the service was to be made, as required by section 3539 of the General Statutes.
But section 3052 of the General Statutes, as amended by Stats. 1889, p. 22, and which is
made applicable to justices' courts, provides: When the person on whom the service is to be
made resides out of the state * * * and the fact shall appear by affidavit to the satisfaction of
the court or judge thereof, and it shall appear, either by affidavit, or by a verified complaint
on file, that a cause of action exists against the defendant in respect to whom the service is to
be made, * * * such court or judge may grant an order that the service be made by the
publication of the summons.
25 Nev. 365, 371 (1900) Pratt v. Stone
that the service be made by the publication of the summons. (Section 3125, Comp. L. 1900.)
The complaint filed clearly states a cause of action against Zenas Pratt, the defendant
therein named, but it is not verified. The affidavit states: * * * that the complaint was filed in
the above-entitled court and cause on the 26th day of June, 1899; that said action is brought
to recover the sum of fifty-six dollars and ninety-nine cents, which said cause of action is
fully set forth in the complaint of plaintiffs on file herein, and which complaint is hereby
referred to, and made a part of this affidavit. * * *
The complaint consists of a copy of an account against said defendant for goods, wares,
and merchandise, and is sufficient as a complaint in justice's court (section 3809, Comp. L.
1900), and it is allowed to import allegations that must be expressly made in similar actions
commenced in the district courts. (Martin v. District Court, 13 Nev. 85.)
The complaint in said action is equivalent to the allegations that between the 8th day
of March, 1898, and the 20th day of June, 1898, the said plaintiffs sold and delivered to the
said defendant at his request goods, wares, and merchandise, to wit: (as specified in said
account) of the reasonable value of $72.99, as that the whole of said sum was at the date of
filing of the account due and unpaid, except the sum of $16 which has been paid. (13 Nev.
85, supra.)
In Legare v. Cal. S. R. R. Co., 76 Cal. 610, the court considered that a certain affidavit for
the publication of summons was sufficient under the statute of that state. The affidavit was
substantially the same as the one in question here, as to the showing made of the existence of
a cause of action, and the California statute is the same as said section 3052 with respect to
the showing to be made. The court held that, if the complaint be not verified, the affidavit
may refer to and adopt its contents; that in such case the oath to the affidavit is an oath to the
contents of the complaint referred to. We are of opinion that the affidavit in question properly
showed the existence of a cause of action against the defendant.
Attachment: The justice issued a writ of attachment against the property of the
defendant in said action.
25 Nev. 365, 372 (1900) Pratt v. Stone
against the property of the defendant in said action. Counsel contends that the affidavit filed
therefor was not sufficient to authorize the issuing of the writ, because, as he claims, it does
not show the nature of the plaintiff's claim, that the same is just, and the amount which
affiants believe the plaintiffs are entitled to recover.
Section 3219, Comp. L. 1900, provides: The clerk of the court shall issue the writ of
attachment upon receiving and filing an affidavit by or on behalf of the plaintiff showing the
nature of the plaintiff's claim, that the same is just, the amount which the affiant believes the
plaintiff is entitled to recover and the existence of any one of the grounds for an attachment
enumerated in the preceding section.
Section 3219 is made applicable to justices' courts by section 3622; the word justice
deemed to be inserted for the word clerk. The affidavit was made by one of the plaintiffs. It
shows that the action was brought by the plaintiffs against the defendant to recover the sum of
$56.99 for goods, etc., sold and delivered to him at his request; and it is averred that Zenas
Pratt, the defendant, is indebted to said plaintiffs in said sum, over and above all legal set-offs
or counterclaims. It shows the existence of the first and second grounds for an attachment
enumerated in the preceding section. (Section 3218.) We think that the affidavit made
sufficient showing to warrant the issuing of said attachment.
Service of Summons: In lieu of the publication of the summons, and deposit of a copy
thereof, with a copy of the complaint, in the postoffice, as ordered by the justice, personal
service of a copy of the summons and complaint was made on the defendant, in the city of
San Francisco, State of California, on the 21st day of July, 1899; and the judgment, as it will
be observed, was given and entered against him on the 7th day of August. Less than three
weeks had then expired from the date of said personal service. The contention of counsel for
petitioner is that the justice acquired no jurisdiction, by such service, of the person of the
defendant in said action, the petitioner here, and that by reason thereof the justice exceeded
his authority in giving and entering said judgment against him, and therefore that said
judgment is null and void.
25 Nev. 365, 373 (1900) Pratt v. Stone
We agree with counsel in this contention.
When a summons is to be served by publication, or out of the state, the time mentioned in
the summons for the appearance of the defendant shall be not less than six weeks nor more
than four months from the date of the issuance of the summons. (Section 3539, Gen. Stats.)
* * * When publication is ordered, personal service of a copy of the summons and
complaint out of the state shall be equivalent to publication and deposit in the postoffice. The
service of summons shall be deemed complete in case of publication at the expiration of six
weeks from the first publication, and in case where a deposit of a copy of the summons in the
postoffice is also required, at the expiration of six weeks from such deposit. (Id.)
We think it evident from the above provisions of the statute that the service is not
complete until at the expiration of six weeks from the date of personal service out of the state,
when such service is made in lieu of publication, or in lieu of publication and deposit in the
postoffice when such deposit is also required.
Until the service of the summons is complete, the justice cannot acquire jurisdiction of the
person of the defendant, except by the voluntary appearance of the defendant; and, when he
enters judgment against a defendant by default before the service is complete, he exceeds his
jurisdiction, and the judgment is void. No appeal lies from such judgment, and it may be
annulled on certiorari. (Little v. Currie, 5 Nev. 90; Roy v. Whitford, 9 Nev. 370; Martin v.
District Court, 13 Nev. 85.) Many other cases of like import might be cited.
There are two other judgments involved in this proceeding, entered by said justice against
the petitioner, the defendant thereinone, in the case of F. W. Day, plaintiff, against Zenas
Pratt, defendant, for the sum of $31 and costs; the other, in the case of Otto Schulz, plaintiff,
against the same defendant, for the sum of $22.25 and costs. A copy of an account was filed
in each case for a complaint; also, an order was made in each case for publication of
summons, and publication was made for the required time. The affidavits for publication
were similar to the affidavit in the case first above named.
25 Nev. 365, 374 (1900) Pratt v. Stone
above named. What was said with reference to said affidavit is applicable to each of the other
two, and for the same reason, and upon the same authority, we hold that said affidavits were
sufficient to authorize publication of the summons.
Counsel contends that each of said judgments is void, for the reason that it does not appear
from the record that in either case was there made a deposit of the summons and complaint in
the postoffice, directed to the defendant at his place of residence, as required by law. The
statute requires such deposit only in case the place of residence of the defendant is known.
The affidavit in each of these two cases states that said defendant is a non-resident of this
state, but is a resident of the State of California, county unknown.
We think that such affidavit is sufficient to show that the defendant resided out of this
state (Furnish v. Mullan, 76 Cal. 647, 18 Pac. 854), and that his place of residence in
California was unknown to the affiant. The copy of the summons and complaint is to be
directed to the defendant at his place of residence out of the state, and deposited in the
postoffice only when such place of residence is known. (Section 3126, Comp. L. 1900.)
In the case of C. E. Wylie and Ed J. Walsh, plaintiffs, against Zenas Pratt, defendant, the
judgment therein given is hereby annulled, upon the ground that no jurisdiction of the person
of the defendant was acquired.
With respect to each of the other two cases, the writ of certiorari issued herein is
dismissed.
____________
25 Nev. 375, 375 (1900)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
APRIL TERM, 1900.
____________
25 Nev. 375, 375 (1900) Wilson v. Morse
[No. 1566.]
VERNON WILSON, Respondent, v. HENRY N. MORSE,
Petitioner.
CertiorariScope of InquiryJudgmentBar of Proceedings. Under Comp. L. 3537, providing that a review
upon certiorari shall not extend further than to determine whether the inferior tribunal has regularly
pursued its authority, certiorari does not lie when a court has jurisdiction of the parties and the subject
matter, and jurisdiction is questioned only by a supplemental answer pleading a former judgment as a bar
to the action.
Judgment of Sister State Bar to Action. A judgment of a sister state is a bar to an action in this state between the
same parties, and upon the same cause of action.
Action by Vernon Wilson against Henry N. Morse on contracts. Application by defendant
for writ of certiorari. Writ dismissed.
W. D. Jones, Attorney-General, for Petitioner.
J. B. Egan, for Respondent.
It appears from the return of the writ that this action was brought to recover a judgment
upon two contracts made by the above-named partiesone for services rendered by
plaintiff to defendant as superintendent of his mine, and the other for board furnished his
workmen, amounting in all to the sum of $3,076.25.
the above-named partiesone for services rendered by plaintiff to defendant as
superintendent of his mine, and the other for board furnished his workmen, amounting in all
to the sum of $3,076.25. Thereafter, and during the pendency of this action, an action was
commenced by defendant herein, as plaintiff, against plaintiff herein, as defendant, in the
superior court of the city of San Francisco, State of California, to determine an adverse claim
made by defendant against plaintiff for the sum of $3,076.25, and such proceedings had as
resulted in a judgment in favor of the defendant, plaintiff herein, for the sum of $3,059.05 and
costs. This judgment was pleaded in a supplemental answer. It was also alleged that the cause
of action in each case was identical. Motion was made to dismiss for the reason that the
California judgment was a bar to further proceedings in the action, and ousted the court of
any jurisdiction in the case, save to dismiss it, and evidence was introduced tending to
support the facts alleged. The motion was denied, and the court proceeded to the trial of the
cause until stayed by writ of certiorari from this court, issued at the instance of petitioner and
defendant.
By the statute of this state upon the subject of certiorari, we are restricted to the
consideration of the question of the jurisdiction of the court, only. The provision of the statute
is as follows: The review upon this writ shall not be extended further than to determine
whether the inferior tribunal, board or officer has regularly pursued the authority of such
tribunal, board or officer. (Section 3537, Comp. Laws.) The record shows that the court had
jurisdiction of the subject matter and of the parties. Jurisdiction having been acquired, it had
the right to determine the question whether the facts stated in the supplemental answer
constituted a bar to further proceeding or not; and not only had the court the right to decide
the question, but it was its duty to decide it. If it erred in its determination, the error is not an
excess of jurisdiction, and may be corrected by the usual mode for the correction of errors.
The boundary between an error of judgment and the usurpation of power is this: The
former is reversible by an appellate court within a certain fixed time, and is therefore only
voidable, while the latter is an absolute nullity, and, when jurisdiction once attaches,
proceedings thereafter in the litigation, though erroneous, cannot operate to divert it, but
the judgment is binding until reversed.
only voidable, while the latter is an absolute nullity, and, when jurisdiction once attaches,
proceedings thereafter in the litigation, though erroneous, cannot operate to divert it, but the
judgment is binding until reversed. This principle has been laid down in the forcible
expression that the power to decide necessarily carries with it the power to decide wrongly as
well as rightly, and is subject to the qualification that the court can render only such judgment
as does not transcend in extent or character the law which is applicable to that class of cases.
(12 Enc. Pl. & Prac. 119.)
Illustrations of the above-mentioned qualification were given by Judge Field, in
pronouncing the judgment in Windsor v. McVeigh, 93 U. S. 282, in this language: If the
action be upon a money demand, the court, notwithstanding its complete jurisdiction over the
subject and the parties, has no power to pass judgment of imprisonment in the penitentiary
upon the defendant. If the action be for libel or personal tort, the court cannot order in the
case a specific performance of a contract. If the action be for the possession of real property,
the court is powerless to admit in the case the probate of a will. * * * The sentence of a
person charged with felony, upon conviction of the court without the intervention of a jury,
would be invalid for any purpose. The decree of a court of equity upon oral allegations,
without written pleadings, would be an idle act, of no force beyond that of an advisory
proceeding of the chancellor.
But we need not look beyond the records of our own court for an instance of this nature.
We recently discharged upon habeas corpus a prisoner confined in the penitentiary, who had
been convicted of the crime of rape under an indictment charging the crime of murder. In that
case we held that the district court had no power to convict a defendant of a different crime
than that for which he was being tried. (Ex Parte Dela, 25 Nev. 346, 66 Pac. 217.)
It is unnecessary at this time to intimate any opinion as to the effect of the supplemental
answer, but there can be no question that a judgment of a sister state is a bar to an action in
this state between the same parties, and upon the same cause of action.
It is ordered that the writ be dismissed.
____________
25 Nev. 378, 378 (1900) Kirman v. Powning
[No. 1575.]
R. KIRMAN, Appellant, v. CLARA A. POWNING, as Administratrix of the
Estate of C. C. Powning, Deceased, Respondent.
Estates of Deceased PersonsClaimsPresentation of MortgageForeclosure. A mortgage upon the lands of
a decedent may be foreclosed whether a claim thereon has been filed against the estate under the
provisions of Compiled Laws of 1900, secs. 2893-2896, or not, the only effect of a failure to file such
claim being the prevention of the mortgagee from making any deficiency that might remain after
exhausting the mortgaged property, out of the remainder of the estate.
IdemIdemMortgageLienForeclosure. A mortgage is something more than a claim against the
deceased. It is a lien upon the specific property described therein, carrying with it the right, in case of
default, of action to foreclose, and by such proceedings have applied to its discharge the proceeds arising
from the sale of the specific property.
IdemIdemIdemIdemDistrict JudgeJurisdiction. The district judge acting in probate matters under
the sections above cited has no power or authority to determine the question of the validity or invalidity
of the lien of the mortgage, or to make any decree or order for the sale of the mortgaged premises upon
the presentation of the claim as defined in the statute. His allowance or rejection of the claim does not
determine the validity of the lien created by the mortgage.
IdemIdemIdemSale of Mortgaged PropertyLien When Divested. The legislature, by the use of the
words valid claim against the estate of the deceased, construed with the other language used in the
same section (Comp. Laws, sec. 2943), clearly intended that lands sold by the administrator, which were
justly chargeable with the payment of a mortgage lien, should be subject to sale divested of such lien only
upon the actual application of the proceeds as specified.
IdemIdemStatutory ConstructionMay and Shall. The words may and shall, in the last clause of
section 2896 of Compiled Laws reading: If the claim be founded upon a bond, bill, note, or other
instrument, the original instrument need not be filed, but a copy with all indorsements may be attached to
the statement of a claim and filed therewith, and if the claim be secured by mortgage or other evidence of
lien, it shall, or a certified copy from a record, be attached to the claim and filed therewith, are
directory. Under said section a claim, or statement of a claim, properly verified, which shows the nature
and character and amount of the same, and the liability of the estate of the decedent, and, if there is future
litigation as to the fact of its presentment, it can be distinguished from all other similar claims, and is
sufficient to bar another proceeding upon it, is sufficient when said section is given the liberal
construction required by Compiled Laws, sec. 3055. It is shown by the complaint that the statement of the
claim filed within the statutory time was allowed by operation of the original
provisions of section 2S96, supra, by the failure of the administratrix to endorse her
allowance or rejection of the same.
within the statutory time was allowed by operation of the original provisions of section 2896, supra, by the
failure of the administratrix to endorse her allowance or rejection of the same. (Stats. 1897, p. 136.) It is
further shown that thereafter the appellant appeared before the district judge, and before said claim had
been rejected by him, and offered to attach the original note and mortgage to the statement of the claim,
and left said note and mortgage with the said district judge for the purpose of having the same attached:
Held, that, under Compiled Laws of 1900, sec. 3067, providing that when appropriate, or the same may be
applied as auxiliary to the provisions of the act, and when not otherwise especially provided in the act, all
the provisions of the law regulating proceedings in civil cases shall apply in matters of estates, claimant had
a right to have his claim amended as requested, and that the leaving of the note and mortgage with the
judge under the circumstances constituted an amendment of the same.
Estates of Deceased PersonsStatutory ConstructionAct Adopted from Sister State. The act of 1897,
regulating the settlement of estates of deceased persons, is copied mainly from the code of civil procedure
of California, title II. The California law does not contain the statutory rule of construction found in section
269 of an act (Comp. L. 1900, sec. 3055), that it shall be construed liberally. Section 2909, Compiled
Laws, invalidates any sale of property of a decedent, unless made under order of the court, except as
otherwise provided in this or other acts, while the corresponding section of the California code (sec.
11,517) limits the exception to the provisions of that act. Sec. 11,569 of the California code of civil
procedure regulates the application of money derived from a sale made by an administrator of property
subject to mortgage or other lien which is a valid lien against the estate and has been presented to the
administrator and allowed, while the corresponding section in the Nevada act (sec. 2943, Comp. Laws)
omits the requirement of presentation and allowance: Held, that the difference between the two statutes was
such that the construction placed on the California statute by the courts of that state is inapplicable in
Nevada.
StatutesConstruction. In construing statutes the court will look to the statutes and the language used therein,
in order to ascertain the true meaning and intent thereof.
Appeal from the Second Judicial District Court, Washoe County; B. F. Curler, District
Judge.
Action by R. Kirman against Clara A. Powning, as administratrix of the estate of C. C.
Powning, deceased. From a judgment sustaining the demurrer to the complaint, plaintiff
appeals. Reversed. Rehearing denied.
I. The administratrix allowed the claim by statutory limitation. At the time she acted upon
the claim the law was that if she failed to act within a certain time, that the claim would be
construed as allowed. (Sec. 111, Stats. 1897.)
II. Could the claim as presented be amended, and was the amendment proposed in time?
Any pleading can be amended at any time before judgment, unless the other side would be
prejudiced thereby, and a showing to that effect must be made by the party prejudiced, and
the costs of amendment and penalties thereof will be imposed on the party amending. When
plaintiff offered to attach the original note and the original mortgage to the claim as filed, he
simply proposed to amend the same by attaching such original note and original mortgage to
the claim as filed, and such motion was made before final judgment, because the action of the
judge or administratrix in allowing or rejecting a claim is a final judgment, for the reason that
when a claim is allowed it becomes a judgment in favor of the claimant. So, the submission
of the original note and mortgage to be attached to the claim was the submission of an
amendment and it was made before final judgment. The court says: If the offer had been
made prior to the expiration of the time for the filing of claims, their attachment might have
been considered as an amendment and the situation would have been entirely changed.
Under this ruling, if a person brought suit on a note the day before it would outlaw, he could
never amend his complaint, because the amendment would not be proposed in time. The error
into which the court fell is thus plainly illustrated by its own decision. * * * We see no
reason why claims cannot be amended the same as other pleadings. Wolf v. Wilsey, 2 Ind.
App. 561; Dayton v. Dakins, 61 N. W. Mich. 349; Estate of Hidden, 23 Cal. 363.)
III. Section 269 of the probate act of 1897 says: This act shall be liberally construed, to
the end that justice may be done all parties. Under our practice act, all errors which do not
affect the substantial rights of the parties may be disregarded, and amendments may be
allowed at all times in furtherance of justice. Section 2310 of the Revised Statutes of Indiana
is even stronger than ours.
of Indiana is even stronger than ours. It calls for a copy of the lien, and also the record where
it is to be found. Yet the Supreme Court of Indiana say: Thus it has been held again and
again that the statement contemplated by the statute is sufficient if it apprises the
administrator of the nature of the claim, the amount demanded, and contains sufficient
substance to bar another action for the same demand. (2 Ind. App. 559; 84 Ind. 272; 52 Ind.
490; 43 Ind. 271; 13 Ind. 206; 125 Ind. 398; 122 Ind. 348; 1 Ind. App. 58, 339; 126 Ind. 461.)
IV. It has heretofore been held that the affidavit could not be amended, the courts being
very strict as to affidavits. But the legislature of 1899 passed an act permitting the amendment
of affidavits. Can it be claimed that, under our statute, affidavits may be amended, and the
statement itself cannot be? There exists far greater reason to permit the amendment of the
statement of the claim than to permit the amendment of the affidavit. The matters stated in
the affidavit, that no part of the claim has been paid, and that there are no offsets to the claim,
are matters that repose entirely within the bosom of the claimant, while the statement itself
may be a matter of common knowledge. In the case of Wolf v. Wilsey, 2 Ind. App. 561, an
amendment to the statement was allowed when the case stood for trial.
V. Can an action be maintained to foreclose a mortgage on the property of a deceased
person without first presenting the claim to the administratrix of the estate and probate judge
for allowance? By the great weight of authority, say the editors of the Am. & Eng. Enc. of
Law (vol. 8, p. 1070), a mortgagee may enforce his lien without presentation of his claim.
The theory of these decisions seems to be that only the equity of redemption in the mortgaged
premises is assets of the estate, and that the statute of nonclaim bars the remedy merely, and
does not discharge the debt. In some states, however, it is held that the mortgage lien is lost
by failure to present the claim. These decisions are generally based on the principle that the
mortgage creates merely a lien on the property, the property still remaining a fund for
distribution amongst the creditors. The latter view is upheld by California, Texas and Florida,
and the former is maintained by Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa,
Kansas, Michigan, Minnesota, Mississippi, Missouri, New Jersey, Oregon, Ohio,
Pennsylvania, South Dakota, Vermont, Washington, Wisconsin and other states.
and the former is maintained by Alabama, Arkansas, Colorado, Illinois, Indiana, Iowa,
Kansas, Michigan, Minnesota, Mississippi, Missouri, New Jersey, Oregon, Ohio,
Pennsylvania, South Dakota, Vermont, Washington, Wisconsin and other states. In short,
every state in the Union has statutes equally strong as ours barring out all claims not
presented according to notice, and several of them forbid their being set up as a set-off. But
the decisions are innumerable which say that a note secured by mortgage is not such a claim.
(See authorities cited at page 1070, vol. 8, Am. & Eng. Enc. Law, et seq.; 37 Ind. 141; 68 Ind.
378; 78 Ind. 417; 67 Ind. 542; 30 Ind. 94; 98 Ind. 499; 1 Ala. 708; 2 Ala. 231; 44 Ala. 92; 67
Ala. 192; 80 Ala. 296; 38 Mich. 96; 32 Mich. 156; 26 Wis. 385; 23 Pac. (Wash.) 439.)
VI. In an action to foreclose a mortgage after conveyance of the mortgaged premises, and
the death of the mortgagor, when no judgment against the estate of the latter is asked for, it is
unnecessary for the mortgagee to present the note and mortgage to the administrator of such
estate for allowance. (Rickards v. Hutchinson, 18 Nev. 215.) The principal point decided by
the case, and principal reason advanced, is found in this language: As the respondent does
not ask any judgment against the estate. In the case at bar, C. C. Powning, in his lifetime,
carved out of his estate, and out of the value of the same, $2,500 worth and interest thereon.
In that much the estate had no further interest. Its sole interest lay in its equity of redemption.
The $2,500 debt and interest due thereon was not, and never could be, an asset of the estate,
or any part of the estate.
VII. It is respectfully submitted that the supreme court can even now order the lower court
to allow appellant to prove his claim. (Estate of Hidden, 23 Cal. 363.) That it is only
necessary to apprise the administrator of the nature of the claim, and to state facts sufficient
to constitute a bar to a recovery in another action in the presentation of claims against any
estate. That the technical rules of common law pleading have nothing to do with the
presentation of claims against estates. That a valid claim is a claim that is actually due. That
all the right, title and interest an estate holds and owns in mortgaged property, and can
dispose of, is its equity of redemptionwhether a mortgage is only a lien or not, and that
mortgages are nothing but liens in every state in the Union, and must be foreclosed in
order to obtain title by the mortgagee.
of redemptionwhether a mortgage is only a lien or not, and that mortgages are nothing but
liens in every state in the Union, and must be foreclosed in order to obtain title by the
mortgagee. That the estate of C. C. Powning, deceased, was not in the least prejudiced by the
failure of plaintiff to attach his original note and mortgage to the claim as filed. That the
reference to the book and page where said note and mortgage could be found was sufficient.
(Higley v. Pollock, 21 Nev. 196.) That the law of 1897, calling for the attachment of the
original note and mortgage to a claim, or certified copies, calls for additional evidence not
called for at the time of the execution of the contract, and that the act should be liberally
construed, to the end that justice may be done to all parties.
A. E. Chaney and Oscar J. Smith, for Respondent:
I. The respondent contends that no action can be maintained in the State of Nevada,
against the representative of a deceased person, to foreclose a mortgage upon any property of
the estate of such deceased, unless the claim sued upon has been presented to such
representative within the time, and in the manner, provided by the statute for the settlement of
the estate of deceased persons, even though the plaintiff in such foreclosure suit waives all
claim against the estate, for any deficiency which may arise, after the sale of the mortgaged
premises.
II. The statute for the settlement of the estate of deceased persons manifests in many ways
that it was the intention of the legislature to give the representative of the deceased person
possession and control of all the property of an intestate. This purpose and intention is shown
by many of its provisions. These statutory provisions contemplate the complete possession
and control, by the administrator, of all the property of the deceased, real and personal,
incumbered and unincumbered, with full responsibility and accountability for its preservation
and distribution. Any attempt, by an independent action, in the same or another court, or in
the same or another county, to deprive the administrator of that possession, to determine the
devolution of the title of the deceased therein, or to adjudicate the validity of a claim or lien
of a creditor against that property, except that such claim and lien has been first regularly
presented for allowance and approval under the provisions of the probate act, destroys
the exclusive jurisdiction vested in the district court of the county of decedent's
residence, contravenes the provisions of the statute above cited concerning the
possession and accountability of the administrator for all the property of the intestate,
and impairs the purpose and efficiency of the probate act which imposes the right and
duty of possession and control of the whole estate upon the representative of the
intestate.
creditor against that property, except that such claim and lien has been first regularly
presented for allowance and approval under the provisions of the probate act, destroys the
exclusive jurisdiction vested in the district court of the county of decedent's residence,
contravenes the provisions of the statute above cited concerning the possession and
accountability of the administrator for all the property of the intestate, and impairs the
purpose and efficiency of the probate act which imposes the right and duty of possession and
control of the whole estate upon the representative of the intestate.
III. It is confidently submitted that the legislative intention to require all the property of an
intestate, which by law is authorized to be sold to pay any debt of the decedent, to be sold by
the administrator, under the provisions of the probate act, is clear. And, also, that the law
contemplates that the proceeds of every such sale shall be brought into court, and distributed
by the administrator, under the direction of the court, to the parties justly entitled thereto, in
satisfaction of only valid claims against the estate, according to their respective priority, as
established by law. It is only by requiring all sales to be made under the direction of the
probate court that the unity and object of this legislative system, for the settlement of the
estates of decedents, can be preserved.
IV. The power of the legislature to determine what shall constitute a claim against the
property of a deceased person, or whether such property shall be subject to any of his debts
whatever, is plenary. Its authority to direct the method of ascertaining what shall constitute a
valid claim against such property is equally ample. With the policy of that act the courts are
not concerned. Its provisions are plain, their meaning apparent, their terms mandatory. No
reason is shown why their observance should not be required.
V. It is no longer a debatable question, in this jurisdiction, that the decedent died seized of
the title of all of his real estate, mortgaged as well as unmortgaged, and that the holder of the
mortgage has no estate therein, other than a lien thereon as security for the payment of his
mortgage debt. The title and right of possession of mortgaged premises passes to the
administrator just the same as it does to that of unincumbered real estate.
ises passes to the administrator just the same as it does to that of unincumbered real estate.
The right, interest and estate of the intestate in mortgaged property is property, and constitutes
assets of the estate. This property and asset the administrator must possess, must appraise,
must preserve, and must account for, the same as other property of the estate, and the only
lawful account which he can render therefor, is either that the decedent had no right, title, or
estate therein, or that the administrator, under the direction of the court, has applied the same
to the discharge of valid claims against the estate, or distributed the same to the persons
lawfully entitled thereto. It is confidently believed that it would be no justification for the
administrator, nor release of his official sureties, for him to report that property of the
decedent had been taken from his possession, in satisfaction of demands against the intestate
which were never presented or allowed by the administrator, or approved by the court, or
established as valid claims against the estate of the intestate, in the only manner provided by
law for determining their validity.
VI. If the policy of the law is to be considered, it is just as essential, in order to save
useless costs and expenses, to require the presentation of secured and unsecured claims before
suit may be brought thereon, and it is certainly desirable that the costs, commissions and
expenses of advertising several sales be avoided, where every right can be preserved by one
sale in a proceeding already commenced, either as to proof of debt or method of sale, is found
in the law. The several provisions of the statute, heretofore cited, unmistakably demonstrate
that the legislature has provided a complete, comprehensive, speedy and equitable plan and
scheme for determining who are creditors of a deceased person, what property shall be sold to
pay the debts, and who, alone, are entitled to have the proceeds of the sale applied to the
satisfaction of their demands, and what, if any, preference they have in reference thereto.
VII. That this is an action upon a contract of the deceased, cannot be questioned. The
judgment sought is upon a claim for money. A mortgage to secure the payment of a debt is
not the debt, but is only a security. It does not pay the debt, nor change its nature."
does not pay the debt, nor change its nature. (Mahoney v. Stewart, 31 S. E. 385.) The
plaintiff seeks by this action to do more than establish the debt. He desires to have execution,
or its equivalentan order of saleand a judgment which will give him a priority of
payment. Yet these are all effects which the statute unmistakably says shall not be given to
any judgment against an estate upon any such claim.
VIII. The question here presented came before the Supreme Court of California twice,
under statutory regulations similar to those of this state, and it was expressly decided, and
reaffirmed after an elaborate argument and full consideration, that the due presentation of a
debt secured by a mortgage to the representative of an estate for allowance is an essential
prerequisite to the maintaining of any action thereon, although all claim against the estate,
other than the mortgaged property, is expressly waived. (Pitte v. Shipley, 46 Cal. 157, 161;
Harp v. Calahan, 46 Cal. 222, 232-233; Adams v. Smith, 19 Nev. 268; Douglass v. Folsom,
21 Nev. 445, 448.)
IX. It will be observed that similar ruling have been made in Florida and Texas. The
reasons for contrary decisions in other jurisdictions is pointed out by Judge Woerner in his
able and exhaustive work on the Law of Administration, viz.: That probate courts generally
have no jurisdiction of actions to foreclose mortgages. (2 Am. Law of Adm., sec. 409.) While
in this state the power to sell the mortgaged premises and apply the proceeds according to the
respective rights and prioritiesall that a court of equity could do in an independent
actionis unquestionably given; and in addition the statute expressly includes mortgages as
claims, which are to be presented, by directing that, if the claim is secured by a mortgage, it
shall be attached and filed therewith.
X. What is alleged to have taken place before the judge, when he was considering
plaintiff's claim, is entirely immaterial. No leave to amend the claim was asked or granted,
and no showing made of any mistake or excusable neglect which would have justified
granting leave to amend, even if it had been asked. What the purpose of the alleged offer was,
must rest in the breast of the person making it, for there is nothing showing that it was
disclosed.
was, must rest in the breast of the person making it, for there is nothing showing that it was
disclosed. The district judge, in his able and comprehensive opinion, completely answers this
contention. The statute had forever barred plaintiff's claim before any attempt was made to
cure the fatal error of the claim as presented, and, by that limitation, jurisdiction to amend it
had become lost, even if any such power ever existed.
The appellant instituted this action to foreclose a mortgage. A demurrer to the complaint
was interposed and sustained, and a judgment rendered in favor of the respondent The appeal
is taken from the judgment and the order sustaining the demurrer.
The facts shown by the complaint are that C. C. Powning died intestate at Washoe county,
Nevada, about the 4th day of November, 1898, leaving an estate therein; that on the 6th day
of December, 1898, an order was made by the district court of said state in and for said
county appointing the respondent administratrix of the estate of said decedent, and that on
said day letters of administration were regularly issued to her as administratrix of said estate,
and that ever since she has been and is the appointed, qualified, and acting administratrix of
said estate; that on the 17th day of December, 1896, at said county of Washoe, the said C. C.
Powning, deceased, executed and delivered his certain promissory note, bearing date of that
day, to the appellant, by which he promised to pay appellant, on or before June 17, 1897,
$2,500 at the banking office of the Washoe County Bank, with interest at the rate of 8 per
cent per annum from date until paid, a copy of which note is fully set out; that to secure the
payment of said principal sum and interest mentioned in said note the said Powning executed
under his hand and seal, and delivered to the appellant, a mortgage bearing date of December
17. 1896, conditioned for the payment of said sum and interest, which mortgage was duly
acknowledged and certified and recorded on the 19th day of December, 1896, in the office of
the county recorder of Washoe county in Book M of Mortgages, page 537.
A copy of the mortgage, containing a description of the real estate covered thereby, with
the indorsements thereon, is fully set out in the complaint.
It is further shown:
That there is due and unpaid to the appellant on said note and mortgage the principal sum
and interest thereon at the specified rate, amounting to $400.
That on the 31st of December, 1898, and within the time allowed by law for the
presentation of claims against the estate of said C. C. Powning, the appellant presented his
said claim, duly verified, to the administratrix of said estate for allowance, and filed the same
with the clerk of the court for the amount hereinbefore set forth.
That thereafter, and within the time allowed by law, the respondent considered said claim,
and allowed the same by statutory limitation, and thereafter she notified appellant to be and
appear before the judge of said court, and show cause why said claim should be allowed.
That, pursuant thereto, appellant appeared before said judge to show cause, as aforesaid,
and offered said judge, sitting in chambers, the original note and mortgage hereinbefore set
forth, for the purpose of attaching the same to said claim as filed. Counsel for respondent
interposed no objection to said offer, and appellant left said original note and said original
mortgage with the said judge for the purpose of attaching the same to said claim, and making
the same a part thereof, and said judge retained said note and mortgage until the ____ day of
June, 1899,
That on the 15th day of May, 1899, said judge considered said claim, and, while in
possession of said note and mortgage, rejected the same.
That the claim presented is in the words and figures following: In the Second Judicial
District Court of the State of Nevada in and for Washoe County. In the Matter of the Estate of
C. C. Powning, Deceased. Creditor's Claim. The undersigned, a creditor of the estate of C. C.
Powning, deceased, presents his claim against the estate of said deceased, with the necessary
vouchers for approval, to wit: Estate of C. C. Powning, deceased, to R. Kirman. To note and
mortgage, dated Reno, Nevada, December 17, 1896, recorded December 19th, 1S96, at 46
min. past 9 a.m.,
recorded December 19th, 1896, at 46 min. past 9 a.m., in Record M of Mortgages, page 537,
records of Washoe county, Nevada, which note and mortgage is hereby referred to and made
a part of this claim, $2,500; to interest on same to December 17, 1898, $400total, $2,900.
To this claim there was attached the statutory affidavit. The appellant asks for a decree of
sale of the land in the usual manner, the proceeds to be applied to the discharge of the amount
due, and for the usual relief in proceedings of foreclosure, waiving recourse to any other
property of said deceased other than the property described in the mortgage.
The important question to be considered is made by the claim of the respondent that no
action can be maintained against the representative of a deceased person to foreclose a
mortgage upon any property of the deceased, under the statutes of this state regulating the
settlement of the estates of deceased persons, unless the same has been presented to such
representative within the time and in the manner prescribed by said statute.
In support of this contention it is argued that the statute giving to the representative of a
deceased person possession and control of all the property of the intestate, the right to
maintain actions to recover the possession of all the real estate of the deceased, and damages
thereto, the right to the rents, issues, and profits of the same, and the imposed duty to keep the
same in reasonable repair, the duty to inventory and appraise all the estate of the deceased,
and his many other duties regarding accounting, sale of property, order of the payment of
debts, shows that such was the intention of the legislature on the passage of the act.
While the question is not a new one, and there seems to be some conflict in the decision of
the question between the courts of the various states, such conflict doubtless arising from the
form of the various statutes, or the language used therein, yet, so far as this court is
concerned, because of the recent passage of the act regulating the settlement of estates of
deceased persons, the question is comparatively new, and a just and reasonable determination
involves the judicial construction of the act, aided, in some respects, by the opinions of other
courts upon statutes in many points similar to our own, where such opinions seem to be
based upon sound logic and reason.
our own, where such opinions seem to be based upon sound logic and reason.
Briefly stated, by the requirements of said act all persons having claims against the
deceased must within a certain time file the same, with necessary vouchers, with the clerk of
the court; if the claim be not filed within the time specified, it shall be forever barred.
It is further required that such claim shall be supported by affidavit, the form and contents
of which are fully set out in the act. It is made the duty of the administrator within a certain
time to endorse thereon his rejection or allowance of such claim, and within a limited time
thereafter he is required to present all claims allowed by him to the district judge for his
approval or rejection.
Quoting from the act, it is further provided that: All claims, when approved by the judge,
shall be ranked among the acknowledged debts of the estate, to be paid in due course of
administration. If the claim be founded upon a bond, bill, note, or other instrument, the
original instrument need not be filed, but a copy with the indorsements may be attached to the
statement of the claim and filed therewith, and if the claim be secured by mortgage or other
evidence of lien, it shall, or a certified copy from a record, be attached to the claim and filed
therewith. (Comp. L. 1900, secs. 2893-2896.)
A mortgage is something more than a claim against the deceased. It is a lien upon the
specific property described therein, carrying with it the right, in case of default, of action to
foreclose, and by such proceedings have applied to its discharge the proceeds arising from the
sale of the specific property.
The district judge acting in probate matters under the sections above cited has no power or
authority to determine the question of the validity or invalidity of the lien of the mortgage, or
to make any decree or order for the sale of the mortgaged premises upon the presentation of
the claim as defined in the statute. His allowance or rejection of the claim does not determine
the validity of the lien created by the mortgage. It is not sufficient to say that the act
prescribing the order of the payment of the debts of the decedent confers authority upon the
district judge to determine in this manner the validity of the mortgage lien.
decedent confers authority upon the district judge to determine in this manner the validity of
the mortgage lien.
The statute makes a distinction between liens of mortgages and claims against deceased
persons.
If the claim be founded upon a bond, bill, note, or other instrument, the original
instrument need not be filed, but a copy with all indorsements may be attached to the
statement of a claim and filed therewith, and if the claim be secured by mortgage or other
evidence of lien, it shall, or a certified copy from a record, be attached to the claim and filed
therewith. (Comp. L. 1900, sec. 2896.)
That the legislature did not intend that the rights of the mortgagee and the validity of the
mortgage lien should be determined in the summary manner prescribed by the statute is not
only apparent from these provisions of the act, but also from the subsequent section providing
that, when any sale is made by an administrator, pursuant to the provisions of this act, of land
subject to any mortgage which is a valid claim against the estate of the deceased, the purchase
money shall be applied, after paying the necessary expenses of the sale, first to the
satisfaction of the mortgage, and the residue in due course of administration; and such
application shall be made without delay, and the land shall remain subject to such mortgage
until the purchase money shall have been actually so applied; and that no lien against any
estate shall be affected by the statute of limitations pending the proceedings for the settlement
of such estate. (Comp. L. 1900, sec. 2943.)
It seems to us that the language used in this section, taken in connection with the language
used in the sections above quoted, is conclusive of the question. It preserves, in direct terms,
the lien of a mortgage upon the land sold until the proceeds arising from such sale have been
actually applied to the discharge of the mortgage lien. It has been claimed that the words
valid claim, used in the last section, must be held to mean a claim against the deceased
which has been duly presented in the manner required by the provisions heretofore cited.
We are not disposed to give to the words used the strained and technical construction
contended for, in view of the further provision of the same act requiring that it shall be
liberally construed, to the end that justice may be done all parties.
ther provision of the same act requiring that it shall be liberally construed, to the end that
justice may be done all parties. (Comp. L. 1900, sec. 3055.) The legislature, by the use of the
words valid claim against the estate of the deceased, construed with the other language used
in the same section, clearly intended that lands sold by the administrator, which were justly
chargeable with the payment of a mortgage lien, should be subject to sale divested of such
lien only upon the actual application of the proceeds as specified.
By this provision valuable property charged with such liens may be used for the purposes
of administration without impairing any of the rights of the mortgagee.
To place a different construction on the statute requires that we should not only ignore the
last clause contained in the section, which declares that no lien against any estate shall be
affected by the statute of limitation pending the proceedings for the settlement of such estate,
but must hold, in direct contravention thereof, that the failure of the mortgagee to present his
lien within a few days after notice of appointment or failure to sue upon the same within a
few days after presentment and notice of rejection shall operate as a perpetual bar to any
action to enforce the same.
We have examined a large number of cases decided by the courts of other states.
Woerner, in his work on the American Law of Administration, correctly states the general
rule, as we believe, governing the majority of these cases. He says: Actions to foreclose
mortgages or to enforce other collateral securities or liens are distinct from the allowance of
the debts so secured; and since, generally, probate courts have no jurisdiction of such actions,
the limitations and conditions imposed on the parties enforcing the payment of simple debts
against executors or administrators are not applicable. Thus, mortgages or venders' liens may
generally be foreclosed without having proved the debt in the probate court, or making the
affidavit of claimant presenting demands against administrators, or proceeding within the
time required for the presentation of claims against deceased persons; nor, on the other hand,
does the probate of the claim affect the holder's right of foreclosure. For the same reason the
right of foreclosure gives the holder no remedy against the general assets of the estate,
and does not give such a claim a preference thereto, and his claim in this respect for any
deficiency is barred like any other claim, unless he presents the same in proper time."
reason the right of foreclosure gives the holder no remedy against the general assets of the
estate, and does not give such a claim a preference thereto, and his claim in this respect for
any deficiency is barred like any other claim, unless he presents the same in proper time. * *
* (Woerner, Admn. 409; 8 Am. & Eng. Enc. Law, 2d ed., 1070. See, also, authorities cited in
footnotes to text of the above authorities.)
The Supreme Court of Washington, discussing the same question, under a statute with
provisions similar in many respects to our own, says: As to the first objection raised by the
defendant, we think that the plaintiff's rights, under his mortgage, as to the lands mortgaged,
were not barred by a failure to present his claim secured thereby to the executrix; that the
failure to present his claim would only operate to prevent him from making any deficiency
that might remain after exhausting the mortgaged property out of the testator's other estate.
(Scammon v. Ward (Wash.), 23 Pac. 439.)
It is necessary to notice briefly one other question raised. It is claimed that the facts shown
by the complaint do not constitute a sufficient filing or presentment of a claim to save the bar
of that provision of the act which declares that no holder of any claim against an estate shall
maintain any action thereof unless it shall have been first filed, and under the conditions
specified. (Comp. L. 1900, sec. 2899.)
The point of this contention is that a strict compliance with the provisions of this section
requires that the appellant should have attached copies of the note and mortgage to his claim,
or the statement thereof, as provided for by section 2896, supra.
This contention is correct if we are required to construe the words may and shall, used
in the last clause of said section 2896, as mandatory.
We do not believe it was intended that the language should be given such construction.
Taking the language of sections 2803 and 2896, and we are of the opinion that it was the
manifest intention of the legislature that formal and technical pleading should not be required
in the presentation of claims; that the court should investigate these claims in a summary
manner without pleadings that required the skill and learning of an attorney at law in
their preparation; that by such procedure expense and delays to both claimants and the
estate should be avoided.
investigate these claims in a summary manner without pleadings that required the skill and
learning of an attorney at law in their preparation; that by such procedure expense and delays
to both claimants and the estate should be avoided.
This act shall be liberally construed, to the end that justice may be done all parties, and a
speedy settlement of estates at the least expense secured, is the declaration of said section
3055, and, if this statutory rule is to be applied to any of the provisions of the act, it seems
most appropriate to apply it to those sections regulating mere matters of pleading, and not of
substantive law.
We are of the opinion that a claim, or statement of a claim, properly verified, which shows
the nature and character and amount of the same, and the liability of the estate of the
decedent, and, if there is future litigation as to the fact of presentment, it can be distinguished
from all other similar claims, and is sufficient to bar another proceeding upon it, is a
sufficient compliance with the terms of these sections of the statute when given the liberal
construction of the statutory rule above quoted.
Of the authorities from the courts of other states examined, the following decisions of the
Supreme Court of Alabama are cited, and are, as we believe, considered with the provisions
of the statute of that state regulating the settlement of estates of deceased persons, based upon
sound reason. (Flinn v. Shackleford, 42 Ala. 202; Bibb v. Mitchell, 58 Ala. 657; Agnew v.
Walden, 84 Ala. 502.)
Quoting from the opinion in Flinn v. Shackleford, supra, Mr. Justice Byrd, speaking for
the court, says: The code declares that all claims against the estate of a deceased person
must be presented within eighteen months after the same have accrued or within eighteen
months after the grant of letters testamentary or administration; and if not presented within
that time are forever barred.' * * * The statute previous to the adoption of the code was, in
substance, upon this subject, the same as the above provision. This court has long held that
under this statute it is not necessary for the claimant to present the original claim to the
executor or administrator in order to hold them liable, and the presentation of a copy or
abstract, or even notice given of the claim, with the assertion of the liability of the estate,
and that he looked to the executor or administrator for payment, would be sufficient.
tation of a copy or abstract, or even notice given of the claim, with the assertion of the
liability of the estate, and that he looked to the executor or administrator for payment, would
be sufficient. * * * The code also provides that every person having any claim against an
estate which has been declared insolvent must file the same in the office of the judge of
probate within nine months after such declaration, or after the same accrues, verified by the
oath of the claimant, or some other person who knows the correctness of the claim, and that
the same is due, or the same is forever barred.
The court in this case, discussing the construction to be placed upon this provision of the
statute relative to the filing of claims against estates declared to be insolvent, further on in the
same opinion, uses the following forceful language: Such a ruling preserves the analogies
which should be observed in the construction of statutes which are in pari materia. Besides,
too rigid a rule should not be enforced against parties in a court which has no technical rules
established for its proceedings, and which looks to the substantial administration of justice
and equity without being held down to the strict rules of the courts of common law.
Our statute regulating this matter also seems to be in harmony with the following rule,
tersely stated in the 8th Am. & Eng. Enc. Law, 2d ed., 1077: In presenting claims against the
estate to the probate court, or by filing the claim in the office of the probate judge, no formal
complaint is necessary. All that is required is that the statement show the nature and amount
of the claim with sufficient precision to bar another action, and show also a prima facie right
to recover.
There is also one other view to be taken of the matter. It is shown by the complaint that the
statement of the claim filed within the statutory time was allowed by operation of the original
provisions of section 2896, supra, by the failure of the administratrix to indorse her
allowance or rejection of the same. (Stats. 1897, p. 136, sec. 111.)
It is further shown that thereafter the appellant was notified to appear and show cause
before the district judge why said claim should be allowed, and that he appeared before said
district judge, and before said claim had been rejected by him, and offered to attach the
original note and mortgage to the statement of the claim, and left said note and mortgage
with the said district judge for the purpose of having the same attached; that thereafter
the district judge rejected the claim, and, it seems, returned to the appellant the original
note and mortgage.
before said district judge, and before said claim had been rejected by him, and offered to
attach the original note and mortgage to the statement of the claim, and left said note and
mortgage with the said district judge for the purpose of having the same attached; that
thereafter the district judge rejected the claim, and, it seems, returned to the appellant the
original note and mortgage.
While, as above stated, it was the manifest intention of the legislature to dispense with
formal and technical pleadings in the presentation of claims against deceased persons, yet it
did, in its wisdom, enact as a part of the law regulating these matters that, when appropriate,
or the same may be applied as auxiliary to the provisions of the act, and when not otherwise
especially provided in the act, all the provisions of the law regulating proceedings in civil
cases shall apply in matters of estate. (Comp. Laws, 3067.)
Under the authority of this provision we are unable to understand why, before the final
rejection of a claim by the district judge, and even after the time within which a claimant is
allowed to file a claim against the estate of deceased persons, the claimant should not be
permitted, in furtherance of justice, under the declared rule of the civil practice act, to amend
his claim as to any technical matter which does not substantially change the nature and
character of the same.
While we have been unable to find, after diligent search, any authority directly in point, yet
such an application of the rule seems to be justified by the provisions of the statute, and its
application cannot operate to harm or injure any person interested in the estate.
This rule as to the right to amend seems to be supported by the decisions of the Supreme
Court of the State of California and the Court of Appeals of the State of Colorado, and we
have not been able to find any authority or decision which conflicts with it. (In re
Sullenberger's Estate, 72 Cal. 549; Dickey v. Dickey, 8 Colo. App. 141.)
If, then, the right to amend exists, as suggested above, may not the averments of the
complaint be sufficient to justify the court in holding that the statement of appellant's claim
was amended by attaching the original note and mortgage thereto?
It is hardly necessary to discuss the objection raised by the respondent that the point of
the exception to the order sustaining the demurrer to the complaint is not stated.
the respondent that the point of the exception to the order sustaining the demurrer to the
complaint is not stated.
If the rule of the statute announced in McGurn v. McInnis, 24 Nev. 370, 55 Pac. 304, could
have any application to the record in the case at bar, it would be sufficient to say that the
statement containing the complaint, demurrer, order of the court sustaining the demurrer, and
decision thereon constituting the record on appeal, very clearly shows the point of the
appellant's exception.
For the reasons above given, the judgment and order appealed from will be reversed, and
the cause remanded for further proceedings in accordance herewith.
The respondent urges in her petition for rehearing, in effect, that, having adopted the
provisions of the probate act of California as it existed prior to 1876, we must, under the
settled rule of construction, also adopt the construction placed upon those provisions by the
court of that state, and cites authorities in which the Supreme Court of California has held
contrary to the rule announced by this court.
We considered the California cases cited, but did not deem it necessary to discuss them, as
our act of 1897 and the subsequent amendments thereto contained provisions, not found in
the California act, which we believe warranted us in holding as we did.
An examination of the California act reveals the fact that it contains no direct statutory rule
of construction, as is found in our probate act.
It will also be observed that section 148 of the California act forbade the sale of any
property of the estate of a deceased person, unless made under an order of a probate court,
and under the provision of the act, while section 124 of our act (Comp. L. 1900, sec. 2909),
which corresponds with the said section 148 of the California act, not only makes valid sales
of such property under the provisions of the act, but other acts, also. A marked difference
exists between the provisions of section 157 of our act (Comp. L. 1900, sec. 2943), cited in
the opinion, and the provisions of the corresponding section of the California act relating to
the sale of lands by the executor or administrator subject to mortgage or other lien, the
application of the proceeds arising therefrom, and the bar of the statute of limitations
pending proceedings for the settlement of the estate.
sponding section of the California act relating to the sale of lands by the executor or
administrator subject to mortgage or other lien, the application of the proceeds arising
therefrom, and the bar of the statute of limitations pending proceedings for the settlement of
the estate. That section of the California act found in volume 2 of the Codes and Statutes of
California (1876, sec. 11,569) contains language not found in section 157 of our act, limiting
the provision of the section to mortgage or other liens which have been presented and
allowed.
Other differences having a direct bearing upon the construction of the statute might be
noted, but, being fully satisfied that the differences between the provisions of our act and the
California act are so marked that the rule relied upon by the respondent cannot be properly
applied to the question considered, and following the established rule that in statutory
construction the court will look to the statutes and the language used therein, in order to
ascertain the true meaning and intent thereof, we are fully convinced that the decision
heretofore announced, determining the rights of the parties under the facts of the record, is
amply supported by the provisions of our statute.
The petition for a rehearing will therefore be denied.
____________
25 Nev. 399, 399 (1900) Jones v. Powning
[No. 1574.]
JOHN P. JONES, Appellant, v. CLARA A. POWNING, as Administratrix of the Estate of C.
C. Powning, Deceased, Respondent.
Estates of Deceased PersonsClaimsStatute of LimitationWaiver. Under probate act, sec. 113 (Comp.
Laws, sec. 2898), providing that no claim shall be allowed by an administrator which is barred by
limitations at the death of the person whose estate is being administered, a waiver of the statute by an
administrator, and his allowance of a claim barred thereby, are invalid.
IdemIdemIdemIdem. Defendant's intestate borrowed certain stock of plaintiff, to be used as collateral
security for a note, his receipt for the stock stating: Should I be unable to meet said note by reason of
accident or death, or return of said stock to (plaintiff), it is my wish that so much of my * * * property as
may be sufficient to cover this obligation shall be sold to * * * reimburse (plaintiff). Intestate did not pay
the note, but the stock was sold to meet it; and intestate died more than six years thereafter, without
having reimbursed plaintiff for the stock: Held, that plaintiff's cause of action for the value of the stock
accrued when intestate failed to pay the note and allowed the stock to be sold.
Action by John P. Jones against Clara A Powning, as administratrix of the estate of C. C.
Powning, deceased. From a judgment sustaining a demurrer to the complaint, plaintiff
appeals. Affirmed.
I. The administratrix, who signed said promise to pay as witness, and who was most likely
to know whether the same or any part of it had ever been paid, allowed the claim of plaintiff
by statutory limitation, and, after the same had been allowed as a valid claim, the court,
without any showing, rejected the same. A promise by an administrator to pay will take the
case out of the operations of the statute of limitations. It is a personal privilege, and can be
exercised by a personal representative. (Hodgson v. White, 11 N. H. 211; Johnson v.
Beardslee, 15 Johns. R. 3; Emerson v. Thompson, 16 Mass. 429; Angell on Lim. 278;
Williams on Executors, 1196; 13 Am. & Eng. Enc. Law, p. 707.) The law does not require
an executor to make his testator sin in his grave' by setting up an unconscious defense."
grave' by setting up an unconscious defense. (Note 2, p. 707, 13 Enc. Law, and long list of
authorities.)
II. If the plea of the statute of limitations is a personal privilege, which can be exercised
by the personal representative, or be waived, the plea was waived by the personal
representative in this case, by allowing the claim, and the moment it was waived by the
personal representative, the claim became a live and valid claim, and the court erred in
rejecting it, because it had then passed beyond his control, by the admission of the personal
representative that the debt was still due and owing.
III. It is submitted that the words and should I be unable to meet said note by reason of
accident or death, or return of said stock to said John P. Jones, make the promise a
conditional promise, and attach the condition to the time when any one can determine
positively when the statute would begin to run against said promise to pay, because the
breach of the contract did not occur until the accident or death occurred which prevented the
promissor from paying said note, or return of said stock. (McCarthy v. White, 21 Cal. 495;
Wood on Limitations, p. 266, sec. 90; Broxton v. Wood, 4 Gratt. (Va.) 25; Egan v. Kergill, 1
Demorrest (N. Y.) 464; Tebou v. Robinson, 29 Hun (N. Y.) 243.)
IV. Taking the promise to pay as a whole, it is exceedingly difficult to construe the same
in any other light than a promise to pay when able, and the whole shows that John P. Jones
accepted it, and impliedly promised not to demand payment until the promissor was able to
pay, or until the accident or death occurred, which event would force him to file his claim
against the estate.
A. E. Cheney and Oscar J. Smith, for Respondent:
I. The averments of the amended complaint show that the plaintiff loaned C. C. Powning
certain stock on December 17, 1888, of the value of $18,750, and that said C. C. Powning
agreed to pay plaintiff said sum of $18,750 for said stock, or within a reasonable time return
said stock. The complaint, as well as the claim which was presented for allowance, demands
interest from December 17, 1888. There should be no difference of opinion as to this
complaint. It is an action to recover a money demand due in 1SSS.
action to recover a money demand due in 1888. Certainly the debt became due when the
stocks were sold in 1890. In either event more than six years had elapsed prior to the death of
C. C. Powning, October 4, 1898.
II. The claim of the appellant, that the administratrix could or did waive the statute of
limitation, is quite remarkable in view of the provisions of our statutes and the decided cases
in other jurisdictions having similar enactments. (Stats. 1897, p. 136, sec. 113; Boyce v. Fisk,
110 Cal. 107-117; In re Mouillerat's Estate, 14 Mont. 245, 36 Pac. 186; Butter v. Johnson,
111 N. Y. 204.)
The complaint shows, among other things, that C. C. Powning died at Reno, Washoe
county, Nevada, on the 4th day of October, 1898, leaving an estate in said county; that on the
6th day of December, 1898, Clara A. Powning was duly appointed administratrix of said
estate; that on the 17th day of December, 1888, the plaintiff loaned to C. C. Powning, at his
request, certificate No. 713, for 250 shares of the capital stock of the Anglo-Nevada
Assurance Company, of the value of $18,750, to be used, and which was used, by Powning as
collateral security for the payment of his certain promissory note, executed December 17,
1888, to the Bank of California, at San Francisco, for the sum of $18,750; that Powning
agreed to pay plaintiff said sum for said stock, or within a reasonable time to return said
stock; that subsequently, on the 2d day of January, 1889, said C. C. Powning executed and
delivered to plaintiff an instrument in writing, in words and figures following, to wit:
Reno, Nevada, January 2, 1889. This is to certify that on the 17th day of December, 1888,
I received from John P. Jones cert. No. 713, Anglo-Nevada Assurance Co. of San Francisco,
for 250 shares, to be used, and was so used, by me as collateral security for a certain
promissory note given by me on said date to the Bank of California for the sum of $18,750;
and should I be unable to meet said note by reason of accident or death, or return of said stock
to said John P. Jones, it is my wish and desire that so much of my real and personal property
as may be sufficient to cover this honorable obligation shall be sold, to fully and completely
reimburse said John P.
able obligation shall be sold, to fully and completely reimburse said John P. Jones against any
loss on account of his testimonial of friendship. And I so decree to all whom it may concern.
C. C. Powning. Witness: Clara A. Powning.
It is also shown by the complaint that said Bank of California in the year 1890 sold said
stock so pledged by said C. C. Powning as security as aforesaid for the sum of $21,909.37;
that said C. C. Powning has never returned said stock to the plaintiff, or any part thereof, and
has never paid said sum of $18,750, or any part thereof, and has never paid any interest
thereon.
It also appears that on the 28th day of January, 1898, the plaintiff filed with the clerk of the
district court his claim against the deceased, setting forth said instrument, and claiming that
there was due thereon the principal sum of $18,750, and legal interest on the same in the sum
of $13,125; that thereafter the said administratrix allowed said claim to the full amount,
$31,875, and that the judge of the district court rejected the whole of said claim.
The defendant demurred to the complaint on two grounds. The second ground was that it
appears upon the face of said amended complaint that the cause of action set forth therein
accrued more than six years before the death of C. C. Powning, and that said claim, when
presented for allowance as a claim against said estate, was, and now is, barred by the statute
of limitation. The court sustained the demurrer. The plaintiff elected to stand on his
complaint, and so stated in open court. The court gave judgment to the effect that the plaintiff
take nothing by his said complaint, and that the defendant recover of him her costs, taxed at
$1.80. Judgment was entered accordingly. This appeal is taken from said judgment and the
order sustaining said demurrer.
Counsel for appellant contends that when a claim is presented to an administrator for
allowance, although barred by the statute of limitations at the time of the death of the
decedent, the administrator may waive the statute and allow the claim, and it becomes a valid
claim against the estate. He cites several authorities to support this contention. Respondent's
counsel cite several authorities holding to the contrary. The weight of authority, in our
opinion, is against the appellant's contention, besides, the mandatory provisions of section
113 of the probate act {section 2S9S, Comp.
the appellant's contention, besides, the mandatory provisions of section 113 of the probate act
(section 2898, Comp. Laws) settle the question against the appellant, to wit: No claim shall
be allowed by the executor or administrator or the district judge which is barred by the statute
of limitation at the time of the death of the person whose estate is being administered.
The second contention for appellant is that the statute of limitation did not begin to run
against said claim till the death of C. C. Powning, and was not a bar, while it is the contention
for respondent that the statute began to run against the claim in 1890, at the time said stock
was sold by the bank.
Counsel for appellant says: It is submitted that the words and should I be unable to meet
said note by reason of accident or death, or return of said stock to said John P. Jones,' make
the promise a conditional promise, and attach the condition to the time when any one can
determine positively when the statute would begin to run against said promise to pay, because
the breach of the contract did not occur until the accident or death occurred which prevented
to promisor from paying said note, or return of said stock.
We may not fully comprehend the above contention, but, as we understand it, it is that
there was no breach of the contract by C. C. Powning till his death; that by reason of his death
he was prevented from paying said note and from returning said stock, and then, at his death,
the right of action accrued to the plaintiff, and not before. This contention, we think, is not
tenable.
The complaint shows that when Powning borrowed the stock he agreed to pay Jones
therefor $18,750, or return the stock within a reasonable time. About three weeks thereafter,
on the 2d day of January, 1889, he executed said instrument. This, evidently, was some time
before the maturity of his said promissory note. By this instrument he expressed a desire that
sufficient of his property should be sold to pay Jones for said stock, in case he should be
unable to meet said note, by reason of accident or death, or to return said stock. Evidently,
death did not prevent him from paying said note, for his death did not occur until more than
six years after his default in paying the same.
his default in paying the same. If he were prevented by accident from paying the note, the
accident occurred more than six years before his death.
His breach of contract occurred upon his failure to meet said note, and when he let said
stock be sold as said collateral security, instead of returning it to Jones; and thereupon Jones'
right of action accrued.
We do not perceive that said instrument had any value, except as a written
acknowledgment of Powning that he had received said stock as a loan, to be used by him as
collateral security for the payment of his said promissory note, and his liability for its value if
he permitted it to be sold by the bank, or otherwise failed to return it.
The plaintiff's claim against the deceased was barred at Powning's death by the statute of
limitations; and said section of the probate act prohibited its allowance by the administratrix,
and its approval by the district judge. (Mouillerat's Estate, 14 Mont. 245.)
The judgment and order appealed from are therefore affirmed.
____________
25 Nev. 405, 405 (1900) Simon v. Matson
[No. 1567.]
GUS SIMON, et al., Respondents, v. WILLIAM
MATSON, et al., Appellants.
Practice on AppealNotice of AppealService by MailWhen Complete. Under civil practice act, secs. 497,
498, authorizing service of notices and other papers by mail by deposit in the postoffice and extending
the time of such service one day for each twenty-five miles distance, service of a notice of appeal is
completed on its deposit in the postoffice, since the extension of time provided does not apply to a notice
of appeal for which no such time to enable action to be taken thereon is necessary.
IdemVerdict Not Supported by Evidence. Where, to recover for ore, it was necessary to prove that it was
taken from a certain mine, and the only witness on such point, on being recalled, and shown a diagram of
an adjacent mine, testified that it was taken from such adjacent mine, a verdict for the plaintiff was
contrary to the evidence, and a judgment based thereon must be reversed.
Appeal from the Fourth Judicial District Court, White Pine County; G. F. Talbot, Judge.
Action by Gus Simon, and others, against William Matson, and others. From a judgment
in favor of plaintiffs, defendants appeal. Reversed.
F. X. Murphy and E. S. Farrington, for Appellants:
I. The appeal was properly perfected. The notice of appeal was filed December 13, 1898.
Thereafter, and on the same day, the notice was served by depositing a copy thereof in the
postoffice at Ely addressed to respondents' attorney at Reno. On the same day an undertaking
on appeal and stay of execution was filed. The distance from Ely to Reno is more than four
hundred miles. A letter deposited so as to be carried on the train from Eureka to Palisade
would reach Reno late in the evening of the day following the day of its departure from Ely.
Gen. Stats., sec. 3353: The appeal shall be made by filing with the clerk of the court, with
whom the judgment or order appealed from is entered, a notice, stating the appeal from the
same, or some specific part thereof, and serving a copy of the notice upon the adverse party or
his attorney. Gen. Stats., sec. 3363: To render an appeal effectual for any purpose, in any
case, a written undertaking shall be executed, * * *. Such an undertaking shall be filed * * *
within five days after the notice of appeal is filed."
taking shall be filed * * * within five days after the notice of appeal is filed.
II. The respondents contend that the undertaking cannot be filed until after the notice of
appeal has not only been filed but served, and that, inasmuch as the service was by mail, the
service was not finally made upon respondents' attorney until eighteen days from the time of
deposit. If it be conceded that the undertaking cannot be filed until after the notice has not
only been filed but served, the only question is as to when the notice by mail is served. Is it
served when deposited in the postoffice, or is it served at the expiration of a time which is
computed at the rate of one day for each twenty-five miles of the distance between the point
of deposit and the residence of the person who is to be served? If the latter, then service by
mail is out of the question in all cases where the distance is over 125 miles, and service upon
the county clerk is also impossible, because the statute says that the service is not complete
until ten days after filing the notice with the clerk. The statutes (1893, p. 88) provide that in
case a new trial is demanded the affidavits or statement shall be filed and served on the same
day. If respondents' view of the land is correct, a new trial in many cases is an absolute
impossibility. If the party to be served resides at the opposite end of the state, actual service
on the same day is a physical impossibility. Service by mail, according to counsel, would be
impossible, because the time of service must be increased one day for each twenty-five miles
between the place of deposit and the residence of the party to be served. Service on the clerk
would be impossible, because such service is not complete until ten days have elapsed. Such
results show that the construction of the law contended for by counsel is not only
unreasonable but impossible. (Reese M. Co. v. Rye Patch Co., 15 Nev. 343; Lyon Co. v.
Washoe Co., 8 Nev. 177; Johnson v. Badger Co., 12 Nev. 261; 4 Watts, Practice, p. 622; 22
Enc. Law, 160.)
III. When the notice was deposited in the postoffice, properly directed and the postage
prepaid, the service was complete. In proving service it was not necessary to show that the
notice had been received by the person to whom it was addressed. The service by mail was
complete, even though the notice might be destroyed or lost by the postal clerks.
the notice might be destroyed or lost by the postal clerks. Section 3515, Gen. Stats., provides
that written notice of motion shall be given five days before the time for hearing. Section
3520 provides that in case of service by mail the time of service shall be increased one day for
every twenty-five miles, etc. This simply means that the time, within which the party
addressed must act or appear, shall be increased one day for every twenty-five miles.
Thomas Wren, for Respondents:
I. Where service is made by mail the time of service is increased one day for each
twenty-five miles between the place of deposit and the place of residence of the attorney upon
whom it is to be served. Under this provision of the statute it was eighteen days from the time
of the deposit until service was finally made on counsel for respondent. The same section of
the statute provides that service may be made by filing the notice in the clerk's office and that
service shall be complete when ten days have elapsed.
II. The methods of taking appeals are matters of purely statutory regulation. (Burbank v.
Rivers, 20 Nev. 81.) The undertaking on appeal must be filed after the notice of appeal has
been served, or the appeal will be dismissed. (Johnson v. Badger Co., 12 Nev. 261; Reese M.
Co. v. Rye Patch M. Co., 15 Nev. 341.) Both undertakings in this case were filed before a
copy of the notice of appeal had been served on the attorney for respondent. The question
naturally suggests itself, in construing the above provisions of the statute, that to hold that the
notice of appeal is not served until the time elapses fixed by statute would be to subject an
attorney serving a notice upon an opposing attorney not residing at the county seat to
inconvenience. This is true, but only to a very limited extent. Usually an attorney upon whom
notice is to be served will acknowledge the service as of any day desired, or, the attorney
desiring to serve notice, if there is a refusal to stipulate, or otherwise, the notice could be
placed in the hands of some one, an officer or another attorney, to be served according to
directions. Upon the other hand, to hold that there has been a sufficient service as soon as the
copy of notice is deposited in the postoffice, or filed with the clerk, would result in
depriving the respondent of a substantial right.
filed with the clerk, would result in depriving the respondent of a substantial right. Upon the
filing of the notice of appeal in the clerk's office, and the service of a copy on the adverse
attorney, the appellant may file his undertaking on appeal, or he may wait five days before
filing it. After filing his undertaking the respondent has five days within which to except to
the sufficiency of the sureties. Taking this case as an illustration of the result of the latter
construction, and it is apparent at once, to give the statute the latter construction, that
respondent was cut off from a substantial right. Under no circumstances could respondent
have had any actual notice that an appeal had been taken by filing the notice in the clerk's
office, mailing a copy, when either undertaking was filed, and he had no opportunity to
except to the sufficiency of the sureties. (Gen. Stats. 3370.)
III. The supreme court of this state, so far as I have been able to ascertain, has never had this
point directly before it for decision, although in one case, where it was not necessary to
construe the statute, they have intimated that if a notice had been served at all it was served at
the time a copy of the notice was deposited in the postoffice, but it was not necessary to argue
the question, and it was not argued by counsel, and it was not necessary in deciding the case
to construe the law in respect to service by mail. (Lyon Co. v. Washoe Co., 8 Nev. 177.)
Respondents move to dismiss the appeal for the reason that the undertaking on appeal was
filed before the copy of the notice of appeal was served. The action was tried at Ely, in White
Pine county. One of the attorneys of appellants resides at that place. The attorney for
respondents resides at Reno, in Washoe county. The distance from Ely to Reno is upward of
400 miles. There is a regular mail communication between the places. The attorney for
appellants filed the notice of appeal December 13, 1898, and mailed a copy, postage paid, at
Ely, on the same day, addressed to the respondents' attorney at Reno. There is no contention
as to the facts.
The question is: At what time did the service take place? The provisions of the civil
practice act applicable, are as follows:
The provisions of the civil practice act applicable, are as follows:
Sec. 497. Service by mail may be made, when the person making the service and the
person upon whom it is to be made, reside at different places, between which there is a
regular communication by mail.
Sec. 498. In case of service by mail the notice or other paper shall be deposited in the
postoffice, addressed to the person upon whom it is to be served, at his place of residence,
and the postage paid. And in such case the time of service shall be increased one day for
every twenty-five miles distance between the place of deposit and place of address.
(Sections 3592, 3593, Comp. Laws.)
Appellants claim that the notice was served by depositing a copy in the postoffice.
Respondents contend that, as the service was by mail, it was not complete until eighteen days
from the time of the deposit, as the statute increases the time of service one day for each
twenty-five miles of the distance between the place of deposit and place of address. If
respondents' contention is the law, the notice of appeal was not served until after the filing of
the undertaking upon appeal, and the appeal should be dismissed. When the deposit is made
in the postoffice under the provisions above set forth, nothing further is required, and the
service is complete.
The purpose of the statute in extending the time of the service one day for every
twenty-five miles between the place of deposit and the place of address is to give the party
receiving the notice or other paper time to act upon it if action is required. No time is required
for action upon a notice of appeal by the notice, and the statute does not contemplate such a
case.
The motion is denied.
Numerous specifications of error are made. In the view that we have taken it will only be
necessary to consider the question whether the verdict of the jury is contrary to the evidence.
It appears that the Comanche mining claim was located in the year 1878; that some time
thereafter the Homestake mining claim was located. The claims run in a northerly and
southerly direction. Between them was an unappropriated piece of mining ground about 300
feet in width at its southerly end, running to a point at the north, caused by the
convergence of the west line of the Homestake, and the east side line of the Comanche.
ated piece of mining ground about 300 feet in width at its southerly end, running to a point at
the north, caused by the convergence of the west line of the Homestake, and the east side line
of the Comanche. This piece of ground, apparently triangular in shape, was located by the
plaintiffs as the Last Chance mining claim. They claimed that the thirty-two tons of ore in
controversy were taken out of this ground.
It is admitted that, to have entitled them to the verdict, it was incumbent upon them to
have established the fact by the testimony. Mr. Roberts, one of the plaintiffs, was the only
witness who testified in their behalf in this respect. In his testimony in chief he said that the
ore was taken out of the Last Chance mine in the year 1897, but, upon being recalled, and
shown the diagram of Comanche mine as surveyed by Mr. Pardy, October 11, 1893, testified
that the ore in dispute was taken from that part of the ground which is represented on this
map by the word ore' written in pencil, just west of the east side line (of the Comanche).
Considering the testimony as a whole, it was contrary to the verdict rendered, and the
judgment must be reversed, and cause remanded for a new trial.
It is so ordered.
____________
25 Nev. 411, 411 (1900)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JULY TERM, 1900.
____________
25 Nev. 411, 411 (1900) Swinney v. Patterson
[No. 1578.]
B. F. SWINNEY, Appellant, v. W. H. PATTERSON,
Respondent.
Notes and BillsFraudulent ConsiderationPatentsPurchase With Notice. Plaintiff wrote the cashier of a
bank at the city of defendant's residence that R., who would soon be in that city, represented a thoroughly
responsible concern, and would offer a meritorious article for sale. Thereafter, R. arrived, accompanied
by another, and they established themselves in the business of selling safes and territorial rights thereto,
representing to defendant and others that the safe was a patented article and new to the local markets, and
on these representations obtained notes of the defendant and of others for about $10,000 in return for
safes and rights. Plaintiff afterwards purchased these notes, and R. gave to him a writing, signed by
defendant, which recited that defendant had received certain safes for samples, together with order
blanksbeing everything promised in a transaction wherein defendant's notes were executedand that
the same would be paid when due. Similar writings were secured from other makers. The safes were not
patented in entirety, and were not new to the markets: Held, that in an action on the notes a verdict in
favor of defendant was sustained by the evidence, on the ground that plaintiff was not an innocent
purchaser, without notice of the fraudulent representation.
PatentsFraudRecord of Patent Office. Where a purchaser of a patent right claims that he was induced to
purchase by fraudulent representations of the seller, the representations of the seller as to what was
covered by the patent are admissible, though, by searching the records of the patent office, the buyer
might have discovered the fraud.
IdemIdemDesigns and Inventions Distinguished. Where the seller of a patent right represented to the
purchaser that the articles were patented in their entirety, and they were in fact only design patents, the
representation is false, in that patents for design differ from patents for invention, in that they have
reference to appearance, rather than invention.
IdemIdemNotesEvidence. Where, in an action on notes, the defense was that they were obtained by
fraudulent representations of the payee in selling articles for which the notes were given, testimony
showing that at about the same time the payee made similar representations to other persons in the same
locality was admissible.
Appeal from the Second Judicial District Court, Washoe County; G. F. Talbot, Judge,
presiding.
Action by B. F. Swinney against W. H. Patterson. From a judgment in favor of defendant,
and an order denying a motion for a new trial, plaintiff appeals. Affirmed.
Benjamin Curler, for Appellant:
I. There was no fraud perpetrated by Rosser and Sherman upon respondent. Where a party
can protect himself by ordinary care and prudence, he must do so, and with full means of
knowledge. In this case the respondent could have searched the patent office records and
discovered the fraud. (1 Story, Eq. Jur., 3d ed., 199; Brown v. Leach, 107 Mass. 364; Long v.
Warren, 68 N. Y. 426; Mamlock v. Fairbanks, 46 Wis. 415; Poland v. Brownell, 131 Mass.
138; Reynolds v. Palmer, 21 Fed. 433; 1 Benjamin on Sales, 4th Am. ed., 641; Veasey v.
Daton, 3 Allen (Mass.) 380; Farrow v. Anderson, 69 Ala. 96.)
II. No fraud was perpetrated by Rosser and Sherman upon the respondent, for the reason
that, at the time they sold the territorial rights to respondent, a design patent had been issued
by the United States government for the calendar clock safe, and afterwards a patent was
issued to the parties that Rosser and Sherman represented. (Judson v. Cope, 1 Band. (U. S.)
327; Miller v. Smith, 5 Fed. Rep. 359; Carter v. Baker, 1 Saw. (U. S.) 512.)
III. If Rosser and Sherman did procure the said promissory notes through fraudulent
representations, the evidence all shows that the notes were negotiable promissory notes, and
that the appellant purchased them in the usual course of business before they became
due, and that he paid a valuable consideration for said notes, without notice or any
knowledge or any equities existing between the original parties, or of any fraud having
been used in procuring the execution of the notes.
and that the appellant purchased them in the usual course of business before they became due,
and that he paid a valuable consideration for said notes, without notice or any knowledge or
any equities existing between the original parties, or of any fraud having been used in
procuring the execution of the notes. The respondent made, executed and delivered a receipt
to V. O. Rosser, which was delivered to appellant before he purchased the notes in question,
which shows that the respondent had received everything promised by the Calendar Clock
Safe Company, in which he said the notes would be paid when due.
IV. The only evidence in the whole case that shows that the appellant had anything to do
with Rosser or Sherman is a letter written by appellant to C. T. Bender, cashier of the Washoe
County Bank, Reno, Nevada, in which he hands a check of $1,000, to be placed to the credit
of V. O. Rosser, and in said letter he states that Rosser represents the Calendar Clock Safe
Company, and that J. M. Curtice is the owner, and if he should see fit to examine the safe,
which Mr. Rosser is placing before your people, that he was sure that he would agree with
him, that it is a piece of kitchen furniture which almost any family could well afford to have.
V. The holder of negotiable paper, endorsed before maturity, is supposed to be the bona
fide owner of the same, and all intendments are in favor of his right. The safety and
convenience of the commercial community depend on this rule, and it is not to be defeated by
any suspicions. (Himmelman v. Hotaling, 40 Cal. 111; Steinhart v. Boker, 34 Bar. 442; Bedell
v. Herring, 77 Cal. 572; Palmer v. Goodwin, 5 Cal. 459; Poorman v. Mills, 35 Cal. 120, 39
Cal. 349.)
VI. The court, under the objection of counsel for appellant, allowed the witnesses,
Patterson, Morrill, Bender, and others, to testify to what Rosser and Sherman did and said in
procuring the notes from respondent, and divers other notes; and the court, in the presence of
the jury, talked about frauds and the plaintiff was a participant in said fraud, and slight
circumstances connected therewith showing any fraud, and you offer now, then, to prove
similar, or other, transactions of similar fraud, until the jurors' minds were so poisoned and
prejudiced against the appellant that they could not impartially consider the evidence on
the part of the appellant or the instructions given by the court.
lant that they could not impartially consider the evidence on the part of the appellant or the
instructions given by the court.
Torreyson & Summerfield, for Respondent:
I. A very casual inspection of the transcript on appeal will show that the real issue in the
action was whether appellant received the notes under such circumstances and conditions
which are evidentiary in law as would justify the jury in imputing to him at the time of their
acquirement such knowledge of the original fraud in their procurement as to make him a
transferee mala fides occupying the same legal status as the transferrer.
II. Caveat emptor does not apply in cases of fraud and misrepresentation to the effect that
an article is patented when in fact it is not. The purchaser of patent rights may rely upon the
representations of the vendor, and is not required to investigate the records of the United
States Patent Office to verify the representations made to him. The authorities cited by
appellant in support of his contention that ordinary care and prudence required an
examination of the records of the patent office, to verify the truth of the representations made
to him that the calendar clock safe was in its entirety a patented article, do not support his
position. All that respondent has been able to find at the time of writing this brief appertain
entirely to cases of the sale of tangible personal property where the vendee had easily
accessible opportunity to examine the amount and quality of the property purchased. In such
cases it is admitted that the wholesome rule of caveat emptor applies. The authorities all,
however, seem to hold the contrary in transactions relating to patent rights and the scope of
patents. A purchaser of a patent right may rely on the representations of the seller as to what
is covered by the patent. (Rose v. Hurley, 39 Ind. 77; David v. Park, 103 Mass. 501; Gaty v.
Holcomb, 44 Ark. 216; Tabor v. Peters, 74 Ala. 90; Page v. Dickinson, 28 Wis. 694; Fargo
Co. v. Electric Co., L. R. A. 593, author's note; Hicks v. Stevens, 121 Ill. 186.)
III. Appellant's contention, that, because a design patent had been issued at the time the
territorial rights were disposed of to respondent, no fraud was perpetrated upon
respondent, cannot be sustained.
posed of to respondent, no fraud was perpetrated upon respondent, cannot be sustained. A
design patent has reference only to configuration, shape, appearance, and ornamentation, and
is not dependent upon utility and novelty as in cases of mechanical patents. (U. S. Rev. Stats.,
secs. 4929-33; Smith v. Whitman Saddle Co., 148 U. S. 674; Dobson v. Dorman, 118 U. S.
10; Cahoone v. Rubber Co., 45 Fed. 682; Untermeyer v. Freund, 37 Fed. 342.)
IV. The record on appeal affirmatively shows that at the time appellant's assignor and
copartner, Sherman, represented to respondent that the calendar clock safe was patented in its
entirety, and it also shows affirmatively that at the time the representations were made to
respondent there was only an application for patent pending, and that the principal features of
the application were rejected on four successive rulings of the commissioner of patents. The
letters patent were simply for improvement in kitchen safes, almost insignificant in nature,
and as much unlike the pending application existing at the time the misrepresentations were
made to respondent as day is unlike night. It will readily be perceived from the transcript on
appeal that the calendar clock safe, which was represented to respondent as being patented in
its entirety, as in fact patented only in the trivial particular of the receptacle and position of an
ordinary clock.
V. The holder of negotiable paper must acquire it, in order to maintain the status of
innocent purchaser for value, without notice of fraud, defect of title, illegality of
consideration, or other fact which impeaches its validity in his transferrer's hands; and the
word notice in this connection signifies the same as knowledge. Knowledge of fraud or
illegality impeaches the bona fides of the holder, or at least destroys the superiority of his
title, and leaves him in the shoes of the transferrer. (Hanauer v. Doane, 12 Wall. 342; Fisher
v. Leland, 4 Cush. 456; Norvell v. Hudgins, 4 Munf. 496; Kasson v. Smith, 8 Wend. 437;
Skidling v. Warren, 15 Johns. 270; Crampton v. Perkins, 65 Md. 24; Smith v. Bank, 74 Tex.
458; Mace v. Kennedy, 68 Mich. 389; McNamara v. Gargett, 68 Mich. 454; Bank v. Edholm,
25 Neb. 742; 1 Dan. Neg. Insts., par. 789; Limerick Nat. Bank v. Adams, 40 Atl.
166; 1 Daniel, Neg. Insts., par. 801 and citations; Gruber v. Baker, 20 Nev. 476.)
VI. Some of the many convincing evidentiary circumstances closely connecting appellant
with the frauds perpetrated upon respondent are as follows: (1) Appellant's letter to C. T.
Bender of July 19, 1897, recommending his assignor and the calendar clock safe. (2)
Purchase of several thousand dollars in notes on January 25, 1898, and sending them to the
Washoe County Bank for collection the next day, January 26, 1898. (3) The purchase of notes
almost due against parties whom he had by previous investigation found to be reliable and
solvent, at a discount of 25 per cent. (4) His six years acquaintanceship with Rosser, his
fraudulent assignor. (5) His investigation of the financial responsibility of respondent and
other makers of notes before purchasing. (6) His previous purchase of promissory notes from
Rosser. (7) His favorable acquaintanceship of Rosser. (8) His examination of the Patterson
receipt. (9) That the notes were payments relating to the calendar clock safe. (10) At the time
of purchasing the notes he had a calendar clock safe in his own home and must have known
that the same was marked Patented. (11) In his letter to C. T. Bender of July 19, 1897, he
represented Rosser as representing the Calendar Clock Safe Company, yet he purchased a
large number of promissory notes payable to V. O. Rosser. (12) He knew that Mr. Curtice had
previously patented the standard cabinet, a similar article to the calendar clock safe.
VII. Appellant argues that respondent's receipt contained in page 13, vol. 2, of transcript
on appeal is conclusive against respondent upon the question of his liability. A mere receipt is
always open to explanation and is never conclusive against the signer. Respondent's
testimony shows conclusively that the receipt was signed in a hurry and was intended only to
embrace certain safe covers entirely outside of the original agreement. This evidence is
uncontradicted and is not open to dispute. The receipt is itself a badge of fraud. It is so
unnatural in its connection with the original transaction with respondent that it can have no
other significance than a guilty attempt to secure a careless ratification of the original
fraud.
a guilty attempt to secure a careless ratification of the original fraud.
VIII. The court did not err in admitting the evidence of Morrill, Bender, Ferrell, Robinson,
Westerfield, Stoddard and Chamberlain, to show similar frauds by appellant's assignor at
about the same time and relative to the same subject matter and fraudulent
misrepresentations. The authorities are overwhelming in upholding the admission of evidence
of similar frauds, collateral in nature, but at about the same time, and relating to the same
subject matter, in order to show the quo animo of the perpetrator. (Gillett on Indirect
Evidence, 80; 1 Jones on Evidence, 80; Nicholls v. Baker, 75 Me. 334; Jordan v. Osgood,
109 Mass. 461; Heath v. Page, 63 Pa. St. 108; Adams v. Kenney, 59 N. H. 133; Day v. Stone,
59 Tex. 612; Moline Co. v. Franklin, 37 Minn. 137; Ferbrache v. Martin, 32 Pac. 252.)
IX. The sanctity of commercial paper in the hands of an innocent purchaser for value
before maturity is admitted. But it is respectfully submitted that the trend of decisions in cases
where it is fairly apparent that the transfer of commercial paper was in furtherance of fraud,
or even attended by strong suspicious circumstances, is to the effect that the aid of the courts
cannot be invoked successfully.
Plaintiff claimed to recover judgment upon twelve promissory notes, of the aggregate
value of $1,472.03, made payable to the order of V. O. Rosser, and by him indorsed to
plaintiff for value before maturity. The answer admits the execution of the notes, but alleges
want of consideration, by reason of fraudulent representations by Rosser and one G. H.
Sherman, and charges fraud and conspiracy by plaintiff, Rosser, Sherman, and others, in
obtaining them. A jury found for defendant. Plaintiff appeals.
The evidence showed that plaintiff had sent the following letter to Mr. C. T. Bender,
cashier of the Washoe County Bank, at Reno:
Kansas City, Mo., July 19, 1897. C. P. Bender, Esq., Cashier, Reno, NevadaDear Sir: I
herewith hand you our check on New York for $1,000, for the credit of Mr. V. O. Rosser,
who will be in your place some time soon, representing the Calendar Clock Safe Co., and
there may be some inquiry as to his company.
check on New York for $1,000, for the credit of Mr. V. O. Rosser, who will be in your place
some time soon, representing the Calendar Clock Safe Co., and there may be some inquiry as
to his company. I beg to advise that the same is owned by Mr. J. M. Curtice, of this city, who
is amply able to carry to completion any contract he proposes to make. In fact, he stands
first-class here, and is one of our most enterprising citizens. If you should see fit to examine
the safe which Mr. Rosser is placing before your people, I am sure you will agree with me
that it is a piece of kitchen furniture which almost any family could well afford to have. Mr.
Rosser is a first-class gentleman, and I bespeak for him and the parties with him your best
treatment. Yours very truly, E. F. Swinney, Cashier.
Soon after the receipt of this letter by Mr. Bender, Rosser, the payee of the notes, and
Sherman appeared in Reno, where they were unacquainted, and established themselves in the
business of selling calendar clock safes and territorial rights thereto; representing to defendant
and others that the calendar clock safe was a patented article, in its entirety, and new to the
markets of the Pacific Coast. By reason of representations of this nature, they obtained the
promissory notes of the defendant and other citizens of Reno and its vicinity, in exchange for
calendar clock safes and territorial rights for their sale, of the aggregate amount of about
$10,000. Before the purchase of the notes, Rosser gave to appellant the following paper
writing:
Received of the Calendar Clock Safe Co. four calendar clock safes, for samples, together
with order blanks; being everything promised in a transaction had with them wherein I
executed notes payable to the order of V. O. Rosser, which will be paid when due. W. H.
Patterson.
Appellant ascertained to his satisfaction, before purchasing, that defendant and all others
that had signed similar notes at about the same time, and for a similar consideration, were
entirely solvent. Upon these facts appellant purchased of Rosser all of these notes, amounting
to about $10,000 in value, at a discount of 25 per cent, taking at the same time an assurance
similar to the receipt above set forth from each signer. It was shown that the calendar clock
safe was not a patented article, in its entirety; that a mechanical patent had issued
therefor, embracing only the receptacle for an ordinary clock; that a design patent had
been issued for it; that the word "patented" was marked upon all calendar clock safes;
that appellant had one in his home in Kansas City; that the calendar clock safe was not
new to the markets of the Pacific Coast.
safe was not a patented article, in its entirety; that a mechanical patent had issued therefor,
embracing only the receptacle for an ordinary clock; that a design patent had been issued for
it; that the word patented was marked upon all calendar clock safes; that appellant had one
in his home in Kansas City; that the calendar clock safe was not new to the markets of the
Pacific Coast.
According to the testimony, it must be admitted that Rosser's representations to defendant
were fraudulent, and as between them the notes would be voidable. Appellant, however,
claims that he is an innocent purchaser, without notice of any equities existing between the
original parties. The question is whether the testimony supports the contention. The letter to
Mr. Bender was intended and used as a general and favorable introduction of Rosser, and the
scheme which he and Sherman afterwards presented to defendant and others, and tended to
show appellant's interest in their operationsnot necessarily a guilty interest; but, when
appellant's subsequent ownership of the notes is coupled with the statements of the letter,
there was sufficient testimony to support the verdict.
Further support may be found in the reiteration of the promise to pay the notes at maturity.
This paper was signed by defendant at the request of Rosser and Sherman in their hurried
departure for Missouri. The reiteration of the promise occurred a few days after the execution
of the notes, and before the discovery of the falsity of the representations. Under the
circumstances, it was an unusual act, and so unnecessary to support a transaction that up to
that time had not been questioned, that it may have excited suspicion, and been considered
evidence tending to support the defense. The further fact may be noticed that neither Rosser
nor Sherman appeared at the trial. A commission to take Rosser's testimony was issued at the
instance of defendant, but the notary to whom it was directed returned that Rosser could not
be found.
A question made at the trial was whether the defendant had the right to rely upon
representations of the vendor that the calendar clock safe was patented in its entirety.
The rule of law governing this question is well stated by the court of appeals of New York
in Mead v. Bunn, 32 N. Y. 2S0, as follows: "Every contracting party has an absolute right
to rely on the express statement of an existing fact, the truth of which is known to the
opposite party and unknown to him, as the basis of a mutual engagement; and he is under
no obligation to investigate and verify statements, to the truth of which the other party to
the contract, with full means of knowledge, has deliberately pledged his faith."
the court of appeals of New York in Mead v. Bunn, 32 N. Y. 280, as follows: Every
contracting party has an absolute right to rely on the express statement of an existing fact, the
truth of which is known to the opposite party and unknown to him, as the basis of a mutual
engagement; and he is under no obligation to investigate and verify statements, to the truth of
which the other party to the contract, with full means of knowledge, has deliberately pledged
his faith.
Under this rule it has been decided that the representations of the seller of a patent right are
admissible to show what is covered by the patent, although by searching the records of the
patent office the buyer might have discovered the fraud. (David v. Park, 103 Mass. 502; Rose
v. Hurley, 39 Ind. 77; Tabor v. Peters, 74 Ala. 90; Gaty v. Holcomb, 44 Ark. 216; Page v.
Dickerson, 28 Wis. 694.)
It is claimed, however, that this objection is obviated by the issuance of a design patent.
The authority for patents for designs is found in section 4929, Rev. St. U. S., which
provides that: Any person who, by his own industry, genius, efforts, and expense, has
invented and produced any new and original design for a manufacture, bust, statue,
alto-relievo, or bas-relief; any new and original design for the printing of woolen, silk, cotton,
or other fabrics; any new and original impression, ornament, patent, print, or picture to be
printed, painted, cast, or otherwise placed on or worked into any article of manufacture; or
any new, useful, and original shape or configuration of any article of manufacture, the same
not having been known or used by others before his invention or production thereof, or
patented or described in any printed publication, may, upon payment of the fee prescribed,
and other due proceedings had the same as in cases of inventions or discoveries, obtain a
patent therefor.
The difference between patents for designs and those for inventions or discoveries is stated
by Judge Nixon in Theberath v. Trimming Co., 15 Fed. 246, as follows: Patents for designs
differ from patents for inventions or discoveries in this respect: That they have reference to
appearance, rather than utility. Their object is to encourage the arts of decoration, more than
the invention of useful products.
products. A picture or design that merely pleases the eye is a proper subject for such a patent,
without regard to the question of utility, which is always an essential ingredient in an
invention or discovery patent.
There is, therefore, no foundation for the claim that a design patent fulfills the
representations made by the vendor that the article was patented in its entirety.
For the purpose of showing the fraudulent representations made by the vendors, testimony
was admitted showing that, at about the same time they represented to other persons in or
about Reno that the calendar clock safe was a patented article in its entirety, they were
empowered to sell county rights in the counties of the State of California, and that the
invention was entirely new to the Pacific Coast. These representations were so closely
connected with those made to the defendant that it was proper for the jury to consider the
intention actuating the vendors, and for that purpose the evidence was admissible.
It is generally true that contemporaneous frauds may be proved when they tend to show a
fraudulent intent in the particular transaction under investigation. In the numerous cases in
which this question has been considered, there may be slight differences in result, not entire
uniformity in deciding in what cases one fraud may properly be said to make manifest the
intention which pervades another transaction; but the rule of evidence certainly goes to this
extent, as stated in Jordan v. Osgood, 109 Mass. 461: That another act of fraud is admissible
to prove the fraud charged, when there is evidence that the two are parts of one scheme of
fraud, committed in pursuance of a common purpose. (Nichols v. Baker, 75 Me. 337.)
Judgment and order denying motion for new trial affirmed.
____________
25 Nev. 422, 422 (1900) Ex Parte Maher
[No. 1589.]
Ex Parte ARNOLD MAHER, Petitioner.
Criminal SentenceHard LaborHabeas Corpus. Under Compiled Laws of 1900, secs. 4715, 4802, 4879,
grand larceny is punishable by imprisonment in the state prison for not less than one nor more than
fourteen years. Sections 1428, 1440 require that all able-bodied prisoners shall perform labor: Held, that
a sentence of one convicted of grand larceny to five years at hard labor is not void; that the words at
hard labor in said sentence were mere surplusage, and in no manner affected the validity of the
judgment.
Original proceeding. Application by Arnold Maher for writ of habeas corpus to the
Warden of the State Prison. Writ dismissed.
E. T. Dupuis, for Petitioner:
I. Was the judgment pronounced by the court in excess of its jurisdiction? Petitioner most
earnestly submits that it was. There is no provision of law in this state which permits a court
in rendering judgment for a felony to add as a further punishment to a term of years, the
punishment of hard labor. The statute is clear and mandatory. It does not prescribe hard
labor. It merely prescribes imprisonment for a term of years, not less than one nor more
than fourteen. (State v. Gray, 37 N. J. 368; Ex Parte Page, 49 Mo. 291; People v. Kelly, 97
N. Y. 213.)
II. In England the settled practice is that, where the inferior court on a valid indictment
transcends its power in passing sentence by giving one which the law does not authorize, the
superior or appellate court will neither pass the proper sentence nor send back the record to
the court below, in order that they may do so, but that they will reverse the judgment and
discharge the prisoner. (The King v. Ellis, 5 Barn. & Cress. 395; The King v. Bonne, 7 Ad. &
Ellis, 58.)
III. In Ex Parte Reynolds, 87 Ala. 139, the prisoner was convicted of violating a
prohibition ordinance, and was sentenced to imprisonment at hard labor upon the streets for a
period of thirty days, while the punishment in such a case was only by fine and imprisonment.
He was released upon a petition of habeas corpus, on the ground that the law did not
confer upon the justice the authority to impose labor on the streets as a punishment.
a petition of habeas corpus, on the ground that the law did not confer upon the justice the
authority to impose labor on the streets as a punishment. (See also Ex Parte Kelly, 65 Cal.
154; Ex Parte Bernert, 62 Cal. 524; People v. Riley, 48 Cal. 549; In re Funston, 55 Neb. 708;
In re Johnson, 46 Fed. Rep. 477; In re Pridgeon, 57 Fed. Rep. 200; In re Graham, 138, U. S.
462.)
W. D. Jones, Attorney-General, and J. Emmett Walsh, District Attorney, for Respondent:
I. The rule adopted by this court in the construing of statutes relating to the same subject
matter is: Statutes relating to the same subject matter which can stand together should be so
construed as to make each effective. (State v. Hoover, 5 Nev. 141; State v. Rogers, 10 Nev.
319; State v. Donnelly, 20 Nev. 214.)
II. A state prison has been established and the commissioners have such supervision of all
matters connected with it as is provided by law. (Art. V, sec. 21, Const.) The legislature has
provided by law that the convicts therein shall perform faithful labor, and receive
commutations of sentence. (Comp. Laws, 1428, et seq.) The petitioner, therefore, cannot
complain that he has been sentenced to hard labor in the state prison, for it was authorized by
law.
III. Under the rule cited above, the statute authorizing the court to sentence the petitioner
to the state prison not to exceed fourteen years (Comp. Laws, 4879), the court had authority
to sentence petitioner to the state prison for five years; and under the statute (Comp. Laws,
1428, et seq.) the court had authority to include in the sentence at hard labor, for the prison
commissioners do require hard labor of those convicts capable of performing hard labor; and
by performing hard labor petitioner benefits himself by commuting his time nearly one year,
or nearly one-fifth of his entire time. Thus reading the statute fixing the punishment for the
crime for which petitioner was convicted (Comp. Laws, 4879) with the statute that compels
him to perform labor (Comp. Laws, 1428, et seq.) the law authorized the court to adjudge that
petitioner should perform labor, hence the writ should be denied.
Arnold Maher was indicted, tried, and convicted for the commission of the crime of grand
larceny, and was thereupon sentenced by the court to imprisonment in the state prison of the
State of Nevada for a term of five years at hard labor. He is now serving the term of
imprisonment imposed, and brings this proceeding for his discharge, basing his right thereto
upon the claim that the judgment is absolutely void, for the reason that the court exceeded its
jurisdiction in imposing hard labor as a part of the penalty.
By the terms of our statute grand larceny is punishable by imprisonment in the state prison
for a term of not less than one year nor more than fourteen years. (Comp. L. 1900, secs. 4715,
4802, 4879.)
The petitioner urges that, notwithstanding the court had jurisdiction of the subject matter
and of his person, it had no power or jurisdiction to render the particular judgment, and cites a
large number of authorities in support of this contention.
This court has held in Ex Parte Dela, 25 Nev. 346, 60 Pac. 217, in effect, that the
judgment of a court upon trial and conviction without indictment is void because in excess of
jurisdiction, recognizing to that extent the rule relied upon. A large number of authorities for
and against the claim have been cited by counsel. A concise statement of the rule, fully
annotated, will be found in 15 Am. & Eng. Enc. Law, 2d ed., p. 170, et seq., and a very full
and fair discussion of the reason therefor in Ex Parte Cox (Idaho), 32 Pac. 197.
We do not believe we are required to apply the rule invoked to the facts shown, as we have
a statute providing for the government of the state prison, by the provisions of which all
able-bodied prisoners are required to perform labor, the faithful performance of which inures
to their benefit in the commutation of the penalty imposed by the court. (Comp. Laws, secs.
1428, 1429, 1440.)
Under the provisions of this act the sentence of the court added nothing to the severity of
the punishment and nothing to the infamy of the prisoner. It was harmless, so far as the
petitioner is concerned. The words at hard labor, under the facts shown and the statutes,
should therefore be treated as mere surplusage, and in no manner affecting the validity of
the judgment.
as mere surplusage, and in no manner affecting the validity of the judgment.
While, therefore, we cannot discharge the petitioner for the reasons given, yet it is
undoubtedly the safe and better practice to strictly limit the penalty to that of the statute
prescribing the punishment for each offense.
Let the writ be dismissed, and the petitioner remanded to the custody of the warden.
____________
25 Nev. 425, 425 (1900) Ex Parte Douglas
[No. 1588.]
Ex Parte LESLIE E. DOUGLAS.
Criminal LawGrand LarcenyExcessive BailHabeas Corpus. Petitioner was held upon preliminary
examination upon a complaint charging him with the larceny of eighteen head of cattle of the value of
$30 each, with bail fixed by the justice at $5,000: Held, that the bail was excessive.
Original proceeding. Application for writ of habeas corpus by the State, on the relation of
Leslie E. Douglas, to obtain a reduction of bail. Bail reduced.
The facts appear in the opinion.
Torreyson & Summerfield, for Petitioner.
W. D. Jones, Attorney-General, for the State.
Per Curiam:
The petitioner was committed to the custody of the sheriff of Churchill county by a justice
of the peace upon a preliminary examination for the crime of grand larceny. The order of
commitment fixes the amount of bail in the sum of $5,000. The complaint charges him with
the larceny of eighteen head of cattle, of the value of $30 each. He contends that the bail is
excessive, and brings habeas corpus to obtain a reduction thereof.
Under well-settled rules, and the showing made, we are of the opinion that the amount of
bail fixed is excessive. The proper order will therefore be made, reducing the amount of bail
required from $5,000 to $3,000.
It is ordered that the petitioner be admitted to statutory bail in the sum of $3,000; the bail
to be approved by an officer duly authorized to take such bail.
____________
25 Nev. 426, 426 (1900) Ex Parte Buncel
[No. 1594.]
Ex Parte LEO BUNCEL.
Criminal LawArsonAffidavit for ArrestSufficiencyInformation and Belief. Under Comp. L. 1900, sec.
4073, providing that, when a complaint is laid before a magistrate of the commission of a public offense,
he must examine on oath the complaint, etc., provided, if a complaint by proper affidavit setting forth the
nature of the charge and the facts within the knowledge, information, or belief of the party making the
same, be filed with the magistrate, and it sufficiently appears that an offense has been committed by some
person, known or unknown to the affiant, triable within the county, the justice may issue a warrant of
arrest, an affidavit charging a person with the crime of arson on information and belief of the affiant, and
stating the facts constituting the offense, is sufficient to authorize the issuance of a warrant.
Original proceeding. Application by Leo Buncel for a writ of habeas corpus to W. H.
McInnis, Sheriff of Washoe County. Writ denied.
The facts appear in the opinion.
E. E. Copeland, for Petitioner.
W. D. Jones, Attorney-General, and E. L. Williams, District Attorney, contra.
Per Curiam:
The application of the petitioner charges that he is unlawfully imprisoned and restrained of
his liberty by W. H. McInnis, sheriff of Washoe county, Nevada, in the county jail of said
county. The illegality of such imprisonment is said to consist of his arrest by virtue of a
warrant issued by a justice of the peace upon a charge of arson based upon an affidavit or
complaint charging the applicant with the crime of arson upon information and belief of the
party making the same.
The affidavit, in effect, charges Leo Buncel, on information and belief, with having, at the
county of Washoe, State of Nevada, on the 2d day of September, 1900, committed the crime
of arson, to wit: that said applicant, in the daytime, then and there unlawfully, feloniously,
and maliciously did burn a certain building known as the Bottling Works of the Washoe
Brewery, of the value of more than $50, the property of the estate of Samuel W. Bowman,
deceased.
25 Nev. 426, 427 (1900) Ex Parte Buncel
The applicant contends that this affidavit was insufficient, under our statute, to authorize
the issuance of the warrant for the arrest of the defendant, and therefore in excess of
jurisdiction. Certain decisions of the Supreme Court of California are cited in support of this
contention, but we do not regard them as controlling the matter, because of the very marked
difference between the California statute and our statute regulating these proceedings.
By section 103 (Comp. L. 1900, sec. 4073) it is provided that, when a complaint is laid
before a magistrate of the commission of a public offense triable within the county, he must
examine on oath the complainant or prosecutor, and any witness he may produce, and may
require their depositions to be reduced to writing, and subscribed by the parties making them,
if the magistrate deem it advisable; provided, if a complaint by proper affidavit setting forth
the nature of the charge and the facts within the knowledge, information, or belief of the party
making the same, be filed with the magistrate, and it sufficiently appears that an offense has
been committed by some person, known or unknown to the affiant, triable within the county,
the justice may issue a warrant of arrest.
The proviso of the above section is not found in the California statute. This proviso
authorizes the issuance of a warrant upon the complaint made upon information and belief.
The nature of the charge and the facts constituting the same sufficiently appear in the
complaint.
The defendant will therefore be remanded to the custody of the sheriff for such further
proceedings before the magistrate as the law may authorize.
____________
25 Nev. 428, 428 (1900) Lonkey v. Powning
[No. 1579.]
In the Matter of the Estate of C. C. POWNING, Deceased, O. LONKEY, Appellant, v.
CLARA A. POWNING, as Administratrix, Respondent.
Estates of Deceased PersonsClaimsEffect of RejectionPractice. The rejection of a claim by the
administratrix under our statute, for any reason, is not a final determination of the rights of the claimant.
The claimant may institute a suit thereon and reserve all questions affecting his rights for review in the
appellate court.
IdemIdemDefective AffidavitAmendmentPracticeAppeal. Section 3041, Compiled Laws of 1900,
provides that a party affected by a decision concerning an estate of a decedent can appeal, such appeal
to be governed in all respects as an appeal from a final decision in actions at law. Section 2894
provides that the district court, in its discretion, can permit an amendment of a defective affidavit to a
claim: Held, that in an action by a claimant on a rejected claim, that an appeal would not lie from an
order refusing permission to amend a defective affidavit, since the claimant may, in making his proofs in
the action upon the rejected claim, reserve any question growing out of the abuse of the court of its
discretion in such matter.
Proceeding to enforce a rejected claim against the estate of C. C. Powning, deceased. From
an order refusing claimant's motion to amend his defective affidavit of claim against the
estate, the claimant appeals. Dismissed.
Torreyson & Summerfield and F. H. Norcross, for Appellant:
I. The order of the court denying the motion for leave to amend the affidavit to the claim
is a final judgment from which an appeal will lie within one year. (Mayberry v. Bowker, 14
Nev. 336; State v. Logan, 1 Nev. 509; Cal. St. Tel. Co. v. Patterson, 1 Nev. 150; Perkins v.
Mining Co., 10 Nev. 405; Probate Act, sec. 269, Comp. L. 1900, sec. 3055.)
II. It is urged by respondent's counsel that it does not appear that the appellant was
prejudiced by the order denying his motion to amend because a suit has been commenced
upon the rejected claim, and it does not appear that appellant has been prejudiced by reason of
the court's refusal of the amendment prayed for. This contention is manifestly without merit.
The holder of a rejected claim is required to bring action thereon within thirty days after
being notified of its rejection or it is forever barred.
to bring action thereon within thirty days after being notified of its rejection or it is forever
barred. (Comp. Laws, 2897.) In order to save the bar of the statute, suit had to be brought
upon the rejected claim within the thirty days. But the right to bring the suit and the right to
recover judgment are two separate affairs. If the affidavit was so defective that it could not be
allowed by the administrator, judgment certainly could not be had thereon unless it could be
amended so as to comply with the statute. It therefore appears that the amendment of this
affidavit was a prerequisite to the right of recovery upon the claim in the action. The only
object of having the complaint introduced in the record was to show that the right of action on
the claim was not barred.
III. A defective affidavit will not support a judgment in an action upon the claim
supported by the defective affidavit. Hence the necessity of having the defective affidavit
amended before going to trial in the suit upon the claim. (Perkins v. Onyett, 86 Cal. 348.)
IV. Appellant has the right of appeal from the order of the lower court denying his
application to amend the affidavit to his claim, even though it was discretionary in the court
to grant the motion, it clearly appearing that there was an abuse of a legal discretion. (2 Enc.
Pl. & Pr. 94.)
A. E. Cheney and O. J. Smith, for Respondent:
I. The affidavit of the claimant constitutes no part of the record on appeal. This is claimed
to be an appeal from a judgment, not an order. And it is only where the appeal is from an
order that affidavits may be annexed to the order in the place of a statement. (Comp. Laws,
sec. 3432.)
II. It does not appear that the appellant was prejudiced by the order denying his motion to
amend. A suit upon his claim appears to have been commenced. Whether it has been
prosecuted successfully or not does not appear. Unless he was prevented from making proof
of his claim because of the action of the court in refusing his amendment, he has sustained no
injury thereby. Prejudicial error must appear affirmatively in a proceeding of this character. It
will not be presumed.
III. The granting of the leave to amend was discretionary with the trial court. Since it
involves no legal right, no appeal will lie. (2 Enc. Pl. & Pr. 92.)
On the 14th day of January, 1899, O. Lonkey filed his claim against the estate of C. C.
Powning, deceased. The claim was based upon a note executed by the decedent in his
lifetime, the original being attached to the statement of the claim and the affidavit in support
thereof. On the 10th day of February, 1899, the administratrix rejected said claim, for the
reason that the affidavit thereto attached failed to comply with the requirements of the statute.
It is not necessary to note the defects in the affidavit. Thereafter, on the 20th day of February,
1899, the administratrix notified the claimant of the rejection of the claim, and on the 17th
day of March, 1899, Lonkey instituted suit in the district court upon said claim. On the 3d day
of June, 1899, upon notice to the administratrix to that effect, the claimant made application
to the district court for leave to amend the affidavit, which application was by the order of the
court refused. This appeal is from the order refusing claimant's motion to amend.
The administratrix contends that an appeal will not lie from this order, and asks us for an
order of dismissal. The claimant contends that the order comes within the provisions of
section 255 (Comp. L. 1900, sec. 3041) of the act to regulate the settlement of estates of
deceased persons, and should be treated as an appeal from a final judgment in an action at
law. The question, as far as we have been able to ascertain after a careful search, is new and
must be determined by the provisions of the above act.
The section prescribing the form of the affidavit to be attached to the claim authorizes the
district court in its discretion, for good cause, upon application made at any time before the
filing of a final account, to allow a defective affidavit to be corrected or amended. (Comp. L.
1900, sec. 2894.)
It cannot be doubted that there should be some procedure by which the abuse of the
discretion reposed in the court should be reviewed and corrected; otherwise, as it is urged
under the decision of the Supreme Court of California, the defect in the affidavit would
operate to defeat the right to recover in the action upon the rejected claim.
under the decision of the Supreme Court of California, the defect in the affidavit would
operate to defeat the right to recover in the action upon the rejected claim. It is not necessary,
as we think, to anticipate what should be the rule as to the effect of a defective affidavit upon
the claimant's right to recover under our statute, nor is it necessary to discuss the California
case cited, as the determination of these questions of procedure by all the courts is, of
necessity, based upon the language, to a very great extent, used in the particular statute to be
construed. The rejection of a claim by the administratrix under our statute, for any reason, is
not a final determination of the rights of the claimant; he may, under the statute, institute a
suit thereon in which there are adverse parties, and, under the statutory rules, reserve all
questions affecting his rights for review in the appellate court. It seems to us, as necessarily
arising from the provisions of our act, that the claimant, having made his application to the
court for leave to amend, may, in making his proofs in the action upon the rejected claim,
reserve any question growing out of the abuse of the court of its discretion in this matter.
The appeal will, therefore, be dismissed.
____________
25 Nev. 432, 432 (1900) State v. Simas
[No. 1580.]
THE STATE OF NEVADA, Respondent, v. GEORGE
SIMAS, Appellant.
Criminal LawIndictmentGrand Jury. Where defendant had not been held to answer before the finding of an
indictment against him, and he moved to set it aside on the ground that no list of names selected as grand
jurors for the session at which the indictment was found, was certified by the officer making the selection,
the motion was properly overruled, since Comp. Laws, secs. 4241, 4149, 4150, declaring the grounds for
a motion to set aside an indictment where the defendant has not been held to answer, before the finding of
the same, include no such ground.
IdemIdemMotion to Set AsideGrand JuryStatutory Grounds of Challenge. Comp. Laws, sec. 4241,
declares that, where a defendant has not been held to answer before the finding of an indictment against
him, he may move to set it aside on any good ground for challenge either to the panel or to any individual
grand juror: Held, that where a defendant had not been held to answer before the finding of an
indictment, and he moved to set it aside on the ground that the several members of the grand jury were
not shown to be qualified grand jurors, the motion was properly overruled, since the ground of the motion
was not a statutory ground of challenge to an individual grand juror, within Comp. Laws, sec. 4150,
setting forth the statutory grounds for challenge of individual grand jurors.
IdemIdemBurglaryOwnership of Building. Where an indictment for burglary charged that defendant
broke into a certain room occupied by a certain company in a particular building, it was not necessary to
allege the ownership of the building, since the allegation that defendant entered the room occupied by the
prosecutor sufficiently laid the ownership of the premises entered in the company.
IdemIdemIdemIdem. Comp. Laws, sec. 4208, declares that an indictment shall be sufficient if it can be
understood therefrom that the act or omission charged as an offense is clearly and distinctly set forth, in
ordinary and concise language, and in such manner as to enable a person of common understanding to
know what is intended: Held, that were an indictment for burglary charged that defendants entered into a
certain room occupied by a certain company as a store, it was not necessary to allege that the company
was either a corporation, an association, or a copartnership.
IdemBurglaryInstructionOwnership Presumed From Possession. Where an indictment for burglary
charged that defendant broke and entered a room occupied by a certain company as a store, it was proper
to refuse an instruction from which the jury would have been led to believe that it was incumbent on the
state to show ownership of the company otherwise than by its possession and occupancy of the store.
IdemIdemIdemCorporate Owner. Where defendant was charged with having burglarized a room
occupied by a company as a store, it was not error to refuse an instruction that unless the
jury found from the evidence, beyond a reasonable doubt, that the company was a
corporation duly organized and existing, they must acquit the defendant.
25 Nev. 432, 433 (1900) State v. Simas
it was not error to refuse an instruction that unless the jury found from the evidence, beyond a reasonable
doubt, that the company was a corporation duly organized and existing, they must acquit the defendant.
IdemIdemIdemSufficiency Of. Where, on a prosecution for burglary, the court stated to the jury each
fact essential to be proven by the state, and said that unless they believed, beyond a reasonable doubt, each
of the facts, they must acquit the defendantthat nothing was to be taken by implication against the
defendant; that the law presumed him innocent of the crime until he was proven guilty beyond a reasonable
doubt, by competent evidence, and that, if the evidence left on the minds of the jury a reasonable doubt,
they should acquit him, and that they must determine the question of his guilt from all the evidence in the
case; and that unless they could say, after a consideration of all the evidence in the case, that every essential
fact was proved beyond a reasonable doubt, they should find for the defendantthe instructions fully
informed the jury as to their duty.
IdemIdemIdemProvince of Jury. It was not an error to refuse an instruction that the jury are the sole
judges of the facts and every fact essential to the proof of the crime alleged, since such instruction might
have misled the jury into the belief that they were judges as to what were the essential facts to be proved by
the state.
IdemIdemIdemModification ofBreaking Not Necessary. Where an indictment charged defendant with
breaking and entering a room occupied by a company as a store, and the defendant offered an instruction to
the effect that, before the jury could find a verdict of guilty the state must show, beyond a reasonable
doubt, that defendant broke and entered the store, it was not error to modify the instruction by striking out
the words broke and, since, under the statute, burglary is the entering in the nighttime of any building.
IdemIdemIdemConfession. An instruction, that, if the jury believed that defendant made confessions as
alleged and attempted to be proved in the case, they should treat them as they would any other testimony,
was proper.
IdemIdemIdemIdemWeight to be Given. A charge that the confessions of a prisoner out of court are
doubtful species of evidence, and should be acted upon with great caution, and, unless they are supported
by some other evidence tending to show that the prisoner committed the crime, they are rarely sufficient to
warrant a conviction, was erroneous, since the weight to be given to the confession is an inference of fact to
be made by the jury, and not an assumption of law to be made by the court.
IdemEvidenceLimited by InstructionsWhen Omission Not Error. Where certain evidence for the state
was admitted against the objection of defendant, and the court stated that it would properly limit the
evidence by its instructions, and failed to give such an instruction, but no suggestion was made to the court
in respect to such evidence, except as stated, defendant could not assign error for the court's failure to limit
the effect of the evidence.
25 Nev. 432, 434 (1900) State v. Simas
IdemBurglaryConfessionsInducement. Where, on a prosecution for burglary, the state called a deputy
sheriff to prove certain alleged confessions as to what defendant had said, and his testimony was excluded
as inadmissible because it appeared that they had been made subsequent to inducements held out to
defendant, it was not error to permit the witness to testify that defendant showed him the place where
certain goods were, which the witness found concealed at that place, and which were proved by other
witnesses to be the property charged to have been taken.
IdemIdemIdemWhen AdmissibleInducements. Where, on a prosecution for burglary, defendant's
brother had testified that a deputy sheriff and deputy constable had told him that it would be better for the
defendant to tell all about the thing, and give up the property taken, and that he had told the defendant at a
certain time what these officers had said, and the state called the deputy constable to prove a certain
confession, and defendant's counsel objected on the ground that the alleged confession was made
subsequent to the time of the conversation between defendant's brother and the witness, it was not error to
admit such evidence, it appearing that the confession in question was made the day preceding the
inducements offered.
IdemJuryChallengeBias. Comp. Laws, sec. 4307, declares that in a challenge for an implied bias one or
more of the causes stated in section 340 must be alleged, and in a challenge for actual bias it must be
alleged that the juror is biased against the party challenging him: Held, that where, on a trial for burglary,
the juror was challenged by the defendant for cause, such challenge was insufficient.
IdemIdemIdemOpinion. Where some answers of a juror to questions by defendant's counsel tended to
show that a juror had formed an opinion concerning the guilt or innocence of defendant from what he had
heard on the street, but he stated that he had not formed any opinion, it was not error not to remove such
juror.
IdemIdemIdemIdemNewspapers. Where a juror testified that he had formed an opinion concerning
the guilty or innocence of defendant from what he had read in the newspapers; that he would be wholly
governed by the evidence given in the case, and disregard any opinion that he may have formed from
newspaper accounts; and that he had no prejudice or bias for or against defendant, and knew of no reason
why he could not give him a fair trial, it was not error not to remove such juror.
George Simas was convicted of burglary, and he appeals. Affirmed.
25 Nev. 432, 435 (1900) State v. Simas
A. E. Chaney, O. H. Mack, and E. D. Vanderlieth, for Appellant:
I. The motion to set aside the indictment should have been granted. A list of the names
so selected as grand jurors shall be made out and certified by the officers making such
selection and be filed in the clerk's office, and the clerk shall immediately issue a venire,
directed to the sheriff of the county, etc. (Compiled Laws, sec. 3869.) The foundation of the
right or authority for the clerk to issue the venire is a lawful certificate filed in his office.
Without it, any venire which he issues is void. Being a ministerial officer exercising a special
statutory power, there is no presumption of jurisdiction, and the record must show a
compliance with conditions which alone authorize the exercise of the power. As well might
he issue a summons without a complaint being filed, an attachment without affidavit or
undertaking, an injunction upon the verbal order of the judge, or a warrant of arrest without
pleadings to support it. It is not an instance of an imperfect exercise of power by the clerk, but
absence of any right to act at all. The certificate is the only legal evidence of the fact of the
selection of certain persons to be grand jurymen, and is prima facie proof of the qualifications
of those selected. Without it, there is nothing which establishes either the fact of any selection
having been made or that the persons selected are qualified. The paper filed with the clerk
with nothing but the names written thereon was no more authority for him to issue the venire
than if there had been nothing thereon. The oral direction of the district judge to issue the
venire imparted no force to the clerk's act, for his authority to issue the venire comes from the
statute when the certificate is filed and not from order of the judge or court. The provision for
making and filing the certificate is for the protection of those accused of crime, and a
guaranty that the grand jury has been impartially selected and is composed of qualified
citizens. It is one ground of the motion that it was not shown that the members of the grand
jury were qualified jurors. Upon the hearing of the motion no proof was given upon that
point. In the absence of a certificate or evidence, there can be no presumption that they were
qualified jurors.
25 Nev. 432, 436 (1900) State v. Simas
presumption that they were qualified jurors. The action of the court in ordering a certificate to
be made and filed as of the date of the issuing of the venire is of no effect. A ministerial act
done without jurisdiction is not given vitality by any such proceeding. Criminal proceedings
and personal liberty rest upon more secure foundations The motion should have been granted.
(State v. McNamara, 3 Nev. 70; Bruner v. Superior Court, 92 Cal. 248-249; State v.
Greenman, 23 Minn. 210-211.)
II. The demurrer to the indictment should have been sustained. There is no allegation of
ownership of the building alleged to have been burglarized. For all that appears, it may have
been the property of the defendant. It must be alleged that it is the property of another. (Com.
v. Perris, 108 Mass. 1.) There is no averment who or what the Nevada Hardware and Supply
Company iswhether a partnership, association or corporation. Neither was there any proof
of its existence.
III. It appears from the bill of exceptions that Mr. Morrill had a fixed opinion as to the
guilt or innocence of the defendant. It also appears that he had read about the case in the
newspapers and that his son had stated to him what he thought were the facts in the case.
True, he says he does not think what his son said to him had anything to do with his opinion.
But who can say that it did not? It is quite enoughindeed, it is doubtful if it is not too
muchto have trial jurors with a fixed opinion founded upon newspaper reports. It is
altogether too much to require a defendant to be tried for his liberty by a juryman who has a
fixed opinion as to his guilt, derived from sources which disqualifies as well as that which
does not, and leave it to the jury to say upon which information he bases his opinion. It would
be strange, indeed, if a newspaper report could be confirmed by a man's son and have no
influence upon the opinion formed by the reading of the report. Men may honestly believe
that they are not affected by such things, but for others to believe it is to fly in the face of
experience of ages and the history of mankind.
IV. J. E. Ede: This juror testified that he had heard that the defendant and Hammersmith
had robbed the hardware store.
25 Nev. 432, 437 (1900) State v. Simas
ware store. He believed what he had heard. Would have to until there was further evidence.
And, if he should hear nothing more, he would certainly be satisfied. Then this examination
was had: By the CourtYou mean you have an opinion concerning the guilt or innocence of
the defendant of the crime charged? A.No, sir. He might be innocent for all I know. Judge
CheneyLet me inquire, until you hear something though, you don't think he is, do you?
A.No, I haven't expressed any opinion yet. Q.You have the opinion, but you didn't
express it? A.Yes. Thereupon the challenge was renewed, overruled, and an exception
taken and no further examination of the juror was had. This is a clear and unmistakable
statement that the juror had an opinion, absolute and unqualified, formed but not expressed.
A. D. Gould: It clearly appears that this juror had a fixed opinion of the guilt of the
defendant formed upon what he had read in the newspapers. That he believed what he read
and, until something to the contrary appeared, he would rely upon it. In State v. McClear, 11
Nev. 39, the right of trial by an impartial jury is fully asserted. It declares that it is immaterial
from what source the fixed opinion is derived, it disqualifies. And such must be the law. The
constitutional guaranty is against being tried by partial jurors. The consequences to the
defendant are quite the same, irrespective of the causes which create the bias. In either event
the defendant has placed upon him the unwarranted burden of overcoming an adverse opinion
which destroys the benefit of the presumption of innocence. It is not claimed that impressions
formed from reading newspaper accounts should or do disqualify. But it is asserted that,
where from such information a defendant is compelled to be tried by a juror who has formed
a fixed opinion (as several of these jurors had), the constitutional right of trial by an impartial
jury had been denied.
V. The court erred in not permitting the defendant to prove that the act of the brother of
the defendant, in pointing out to the witness Hayes the place where certain property was
deposited, was the result of the promise of immunity and protection which had been given to
the defendant.
25 Nev. 432, 438 (1900) State v. Simas
ant. The court had ruled that the alleged admissions or confessions of the defendant were
incompetent because not voluntary. Yet, it permitted the state to prove by Mr. Hayes that, in
consequence of what had been said in that confession, he went with the defendant to the place
where certain property, alleged to have been stolen, was found. If, in consequence of a
promise of protection, a person accused of larceny puts his hand in his pocket and produces
the stolen article, is not the act induced by the unlawful promise quite as much within the
protection of the rule as the words which accompany the act? Yet, the court ruled that what
the defendant said was incompetent and what he did at the time was competent, although both
were plainly the result of the inducements and promises which had been held out to him. It
will be observed that the court stated that at the proper time instructions limiting the evidence
to the fact of knowledge of the place where the property was located would be given. Yet no
such instruction was ever given.
VI. The court erred in permitting the witness Leeper to testify that he did not make any
promise of immunity or benefit or hope to the defendant, against the specific objection of the
defendant that it called for the opinion of the witness as to the effect of the communication,
instead of requiring him to state the communication itself. Whether or not a confession is
voluntary and admissible is for the court alone to decide. (6 Am. & Eng. Enc. Law, 554.) Of
course, if there was no inducement given, the evidence was competent. But to permit a
witness to testify that there was none is to permit him to decide that the confession is
voluntary and to pass upon the admissibility of his own testimony. A similar objection and
ruling was made later when, against the objection of the defendant that the prisoner was under
arrest and that it was not shown that what he said was voluntary, the witness Leeper was
permitted to testify that he had not at that time promised the defendant any immunity from
punishment or any benefit or held out any hopes or threatened him in any way. That clearly
made the witness and not the court the judge of the admissibility of his evidence. All
confessions are prima facie involuntary; the state must prove their competency before they
are admissible.
25 Nev. 432, 439 (1900) State v. Simas
state must prove their competency before they are admissible. (6 Am. & Eng. Enc. Law, 2d
ed., pp. 553-554.)
VII. After the witness Leeper had been permitted to testify that what the defendant said
was voluntary, and was asked to state the conversations with the defendant, the defendant
desired an opportunity to offer proof that the communication which the witness was about to
narrate was after inducements had been held out to him, and therefore the evidence was
inadmissible. The offer was denied by the court; an exception taken by the defendant, the
witness permitted to relate the conversation, a motion made to strike it out, the motion
denied, and an exception taken. Whenever objection is made to the competency or
admissibility of evidence, it is the duty of the court to determine it. Whether or not a
confession is admissible depends upon the circumstances of each case. To determine that
question in this action, the court heard the proof offered by the state and refused to hear that
which the defendant offered. The very essence of judicial action, as contradistinguished from
arbitrary power, is that it decides after both sides have had an opportunity to present proofs,
and not before. It was error for the court to deny the defendant an opportunity to show that
what defendant had said to Leeper was caused by such promises and inducements as to make
it inadmissible; and to permit the evidence to go to the jury even if an opportunity was
afterwards given to make the offered proof, or the evidence stricken out, was to deny the
defendant a fair trial. (People v. Fox, 121 N. Y. 449; Palmer v. State, 136 Ind. 393; Com. v.
Culver, 126 Mass. 464; People v. Soto, 49 Cal. 67; Lefevre v. State, 50 Ohio St. 584; State v.
Kinder, 96 Mo. 548.)
VIII. Seven instructions, offered by the defendant, the court refused to give. The
indictment charges that the building burglarized was occupied by the Nevada Hardware and
Supply Company. It did not allege whether that occupancy was lawful or unlawful or in what
capacity or by what right the company so occupied it. The court refused to instruct the jury
that proof of ownership was necessary to warrant a conviction. It is submitted that ownership
of the building alleged to be burglarized is an element necessary to be alleged and proved.
25 Nev. 432, 440 (1900) State v. Simas
IX. The sixth instruction refused requested the judge to direct the jury that they were the
sole judges of the facts. No instruction of similar import was given elsewhere. The defendant
had the right to have the jury instructed that they were the sole judges of the facts and every
fact essential to the proof of the offense charged.
X. The seventh instruction refused required the jury to find that the defendant both broke
and entered the building. The court modified it by striking out the word broke. Of course,
there may be burglary without a breaking. But that arises only when the building is already
open. Here the indictment charged both breaking and entry, and the court instructed that entry
alone was sufficient.
E. L. Williams, District Attorney, for Respondent:
I. The motion to set aside the indictment was properly denied. The motion to set aside the
indictment is, in effect, to originate a new and distinct ground of challenge to the panel of a
grand jury. Our statute provides only three grounds for challenging the panel of a grand jury,
and the motion does not set forth any of the grounds specified in the statutes. (Gen. Stats.
4149.) In this case it is neither claimed nor shown that there was any fraud or collusion in the
selection of the grand jury; but it is argued by appellant's counsel that the provisions of the
statute (sec. 3869) were not strictly complied with, while the respondent takes the position
that the error complained of in respect to the uncertified list of grand jurors filed with the
clerk neither prejudiced nor injured the defendant in his rights, and was consequently
harmless. (State v. Collyer, 17 Nev. 275; Keech v. State, 15 Fla. 599.) It does not devolve
upon the state to show that the persons drawn as grand jurors were qualified as such. (52 Vt.
316.) That the court should look with disfavor upon technical objections to harmless
omissions and irregularities in the manner of selecting jurors will cite Ferris v. People, 31
How. Pr. 145; 35 N. Y. 125; 64 N. Y. 492; 12 Tex. 27; 50 Pac. Rep. 912; 41 Pac. Rep. 126.
II. The demurrer to the indictment was properly overruled. That the ownership of the
storerooms of the Nevada Hardware and Supply Company, situated in the Eureka block, was
properly laid in said company, by the allegation that said rooms were occupied by them as
a store.
25 Nev. 432, 441 (1900) State v. Simas
was properly laid in said company, by the allegation that said rooms were occupied by them
as a store. (State v. Parker, 16 Nev. 79.) It was not necessary to allege that the Nevada
Hardware and Supply Company was a partnership, association, or corporation, nor to prove
the same in the trial of the cause.
III. The Challenges to the Trial Jurors: The challenge to George Robinson upon the
ground that he had formed an opinion on a material matter concerning the charge, and not as
to the guilt or innocence of the defendant, was not well taken. In the challenge to Enoch
Morrill as a juror upon his examination no ground was stated. I infer it was for having
expressed a fixed opinion as to the guilt or innocence of the defendant based on a newspaper
report. In the challenge to juror Ede, for having formed an opinion which he had not
expressed, the only ground given was for cause. The challenge to juror Comstock, on the
ground that he had formed or expressed an opinion on a material issue, was made without
stating any grounds. The challenge to juror Cahlan, for having formed an opinion respecting
the innocence or guilt of the defendant and for having expressed an opinion respecting the
merits of the case, was properly denied, considering all the evidence given in his
examination. In the challenge to juror Gould, for having formed an unqualified opinion
concerning the guilt of the defendant, his examination shows that the said opinion was based
upon what he had read in the newspaper. The party challenging a juror for cause or implied
bias must specify the particular ground or grounds of his challenge. (2 Nev. 226; 11 Nev. 98;
6 Nev. 320; 6 Nev. 128; 22 Nev. 285; 49 Cal. 161; 61 Cal. 548.) A juror is not disqualified by
reason of having formed or expressed an unqualified opinion based on a newspaper report.
(Gen. Stats. 4305; 49 Cal. 169; 59 Cal. 346; 61 Cal. 248; 62 Cal. 377.)
The defendant was convicted in the Second Judicial District Court in and for Washoe
county of the crime of burglary, and by the judgment of the court was sentenced to
imprisonment in the state prison for the term of one year.
25 Nev. 432, 442 (1900) State v. Simas
He appeals from the judgment, and from an order denying his motion for new trial.
Motion to Set Aside Indictment: The trial court denied the defendant's motion to set aside
the indictment, and the ruling is assigned as error. An indictment may be set aside on motion
of the defendant on certain grounds named in section 4240, Comp. Laws; and, when the
defendant has not been held to answer before the finding of the indictment, it may be set aside
on any good ground for challenge, either to the panel or to any individual grand juror.
(Section 4241, Id.)
Sections 4149, 4150, respectively, give the grounds of challenge to the panel and to any
individual grand juror. The defendant in this case had not been held to answer before the
finding of the indictment. He specified numerous grounds for his said motion, but the only
statutory ground embraced therein, is the third ground of challenge to the panel, to wit, that
the drawing was not had in the presence of the officers or officer designated by law. (Section
4149.)
This ground is not sustained by the facts as disclosed by the bill of exceptions.
Two of the grounds alleged for the motion and argued are, substantially: First, that no list
of names selected as grand jurors for said term of said court, or the session at which said
indictment was found and presented, was certified by the officers making such selection;
second, that the several members of said grand jury are not shown to be qualified grand
jurors.
The statute does not make the failure to certify the list of names of grand jurors a ground
of challenge to the panel. Neither is the alleged second ground a statutory ground of challenge
to an individual grand juror, and neither of said grounds is otherwise made a statutory ground
for setting aside an indictment. While said motion could have been properly made on any
ground that would be good ground of challenge to the panel or to an individual grand juror,
courts have no power to originate a new and distinct ground of challenge. (State v. Collyer,
17 Nev. 275, 30 Pac. 891, and cases cited.)
Indictment and Demurrer: The indictment charges that said defendants, William J.
25 Nev. 432, 443 (1900) State v. Simas
said defendants, William J. Hammersmith and George Simas, on the 2d day of February, A.
D. 1900, or thereabouts, and before the finding of this indictment, at the said county of
Washoe, State of Nevada, in the nighttime, into a certain room occupied by the Nevada
Hardware and Supply Company as a store, in a building known as the Eureka Block,' then
and there situate and being, did unlawfully, feloniously, and forcibly break and enter, with the
intent then and there feloniously and burglariously to steal, take, and carry away the goods,
money, and property of the said Nevada Hardware and Supply Company, then and there
being. * * *
The defendant demurred to the indictment on the grounds (1) that said indictment does not
substantially conform to the requirements of sections 234 and 235 of the criminal practice act;
(2) that the facts stated do not constitute a public offense. The demurrer was overruled and
error assigned. The specific objections to the sufficiency of the indictment are: FirstThere
is no allegation of ownership of the building alleged to have been burglarized.
We do not think it was necessary to allege who was the owner of the building known as
the Eureka Block. It was a certain room in that building occupied by said company as a
store, into which it is charged that the defendant entered. The ownership is correctly laid in
the party or parties having the occupancy, possession, and control at the time of the alleged
burglary. (3 Enc. Pl. & Prac. 762, note 3; State v. Parker, 16 Nev. 79.)
It was shown by the testimony in this case that the Nevada Hardware and Supply Company
occupied and had control of said storeroom at the time of the burglary. The allegation that the
defendants entered into a certain room occupied by the Nevada Hardware and Supply
Company as a store, in a building known as the Eureka Block, sufficiently lays the
ownership in said company of the particular premises entered.
In People v. Rogers, 81 Cal. 209, the charge was that defendant burglariously entered the
store occupied by Jones & Harding, with intent, etc. It was held that the ownership of the
building was sufficiently designated.
25 Nev. 432, 444 (1900) State v. Simas
Counsel cites Com. v. Perris, 108 Mass. 1, in support of his contention. But in that case it
was charged that the defendants on * * * in the nighttime at * * * in said county, the
building known as Warren Block,' there situate, did break and enter. * * * In that indictment
there was total absence of any allegation of ownership, occupancy, possession, or control of
said building.
The second objection is that there is no averment who or what the Nevada Hardware and
Supply Company iswhether a partnership, association, or corporation.
It is provided by section 4208, Comp. Laws, that the indictment shall be sufficient if it can
be understood therefrom: * * * Sixth, that the act or omission charged as the offense is
clearly and distinctly set forth in ordinary and concise language, without repetition, and in
such manner as to enable a person of common understanding to know what is intended.
Under the statute and the following authorities, we do not think that it was necessary to
allege that said company was either a corporation, an association, or a copartnership: People
v. Henry, 77 Cal. 445; People v. Rogers, 81 Cal. 209; Burke v. State, 34 Ohio St. 79;
Hamilton v. State, 34 Ohio St. 82; Fisher v. State, 40 N. J. Law, 169; State v. Shields, 89 Mo.
259, 3 Enc. Pl. & Prac. 757, 761.
InstructionsOwnership: The court of its own motion instructed the jury as to the
ownership of the storeroomin effect, that it was essential for the state to show by the
evidence, beyond a reasonable doubt, that the Nevada Hardware and Supply Company,
named in the indictment, was the owner, or in the possession and occupancy, of the room
described in the indictment, before they could find a verdict of guilty. The defendant asked
for several instructions, by which, doubtless, the jury would have been led to believe that it
was incumbent on the state to show the ownership of said company otherwise than by its
possession and occupancy of said storeroom. These instructions were refused, which is
assigned as error. And an instruction was offered to the effect that unless the jury found from
the evidence, beyond a reasonable doubt, that the Nevada Hardware and Supply Company
was a corporation duly organized and existing, they must acquit the defendant.
25 Nev. 432, 445 (1900) State v. Simas
existing, they must acquit the defendant. That instruction was refused, and error assigned. In
view of the authorities cited above, we do not think the court erred in refusing to give either
of said instructions.
The court refused the sixth instruction offered by the defendant, and this is claimed to be
error. The instruction was, in part: The jury are the sole judges of the facts, and every fact
essential to the proof of the offense alleged. * * * The instruction is endorsed, Refused for
the reason that the same was given in substance. * * * The court had stated to the jury clearly
and specifically each fact essential to be proven by the state; that unless the jury believed
from the evidence, beyond a reasonable doubt, each of such facts, they must acquit the
defendant; that nothing was to be presumed or taken by implication against the defendant;
that the law presumed him innocent of the crime charged until he was proven guilty beyond a
reasonable doubt, by competent evidence; that, if the evidence in the case left upon the minds
of the jury any reasonable doubt of defendant's guilt, the law made it their duty to acquit him;
that the jury must determine the question of his guilt from all the evidence in the case; that
unless the jury could say, after a careful consideration of all the evidence in the case, that
every essential fact was proved beyond a reasonable doubt, they should find a verdict of not
guilty.
The instructions given by the court we think fully informed the jury as to their duty and
province in respect to matters of fact. We think the said sixth instruction was calculated to
mislead the jury into the belief that they were the judges as to what were the essential facts to
be proven by the state.
The seventh instruction offered by defendant was to the effect that, before the jury could
find a verdict of guilty, it was the duty of the state to show beyond a reasonable doubt each of
certain propositions, to wit: * * * (3) That the defendant broke and entered that storeroom.
The court modified the instruction by striking out the words broke and. This action of the
court is assigned as error. Under the statute there is but one species of burglary, the essential
definition of which is the entering in the nighttime any dwelling house or tent, or any other
house or building whatever, or any vessel, water craft, railroad, passenger, or freight car,
with intent, etc.
25 Nev. 432, 446 (1900) State v. Simas
ever, or any vessel, water craft, railroad, passenger, or freight car, with intent, etc. (State v.
Watson, 11 Nev. 30.) The court did not err in modifying said instruction.
It is contended that instructions Nos. 14, 15, and 16 are so conflicting and
self-contradictory as to require a reversal of the judgment.
Instruction No. 14, given at the request of the district attorney, was to the effect that, if the
jury believe from the evidence that the defendant made the confessions as alleged and
attempted to be proved in the case, they should treat and consider such confessions as they
would any other testimony.
By instruction No. 15 the court charged that the confessions of a prisoner out of court are
a doubtful species of evidence, and should be acted upon with great caution; and, unless they
are supported by some other evidence tending to show that the prisoner committed the crime,
they are rarely sufficient to warrant a conviction.
It may be that confessions are a doubtful species of evidence, and should for that reason be
acted upon with great caution; yet such conclusion is only an inference of fact, which should
be made by the jury, and not a presumption or conclusion of law, to be declared by the court.
In regard to instructions as to verbal admissions and confessions there is much conflict of
authority, but the weight of authority, it is believed, is to the effect that the trial court should
not make any statement which will tend to disparage the value of such evidence. (11 Enc. Pl.
& Prac. 333, 334, notes.)
We do not think instruction No. 16, given at request of the district attorney, is subject to
criticism. Counsel quotes only a part of a clause thereof in his brief. The instruction as given
was correct.
We are of the opinion that No. 14 was correct, and that No. 15 was not correct, and should
not have been given. But it was in favor of the defendant, and could not have misled the jury
to his prejudice. Besides, it was given at his request. (11 Ency. Pl. & Prac. 149, and cases
cited.) Against the objection of the defendant, certain evidence of witness Hayes was
admitted by the court for certain purposes stated by the court.
25 Nev. 432, 447 (1900) State v. Simas
by the court. At that time, in the midst of the trial, the court, in response to a verbal request of
defendant's counsel, stated that it would properly limit the evidence by its instructions. In
instructing the jury on the case, the court failed to give such instruction, doubtless through
inadvertence. No such instruction was presented to the court, and no suggestion was made to
the court in respect to said evidence, except as above stated, doubtless through inadvertence
of defendant's counsel.
If the defendant desires the court to charge the jury upon any given point, it is his right
and his business to prepare such instruction, and ask the court to give it. (State v. Smith, 10
Nev. 106.) The defendant presented a great number of instructions, but none limiting said
evidence.
It has been held in numerous cases that, in the absence of a specific request, error cannot
be assigned for the court's failure to limit the effect of evidence admitted for a certain
purpose. (11 Enc. Pl. & Prac. 225, 277, note 2; People v. Ah Yute, 53 Cal. 613; People v.
Collins, 48 Cal. 227; People v. Gray, 66 Cal. 276, 5 Pac. 240; 11 Enc. Pl. & Prac., supra,
217, et seq.)
The state called John Hayes, deputy sheriff, to prove certain alleged confessions or
admissions of the defendant alleged to have been made to the witness. Testimony as to what
defendant had said was excluded by the court as being inadmissible, from certain alleged
facts testified to by defendant's brother, but he was permitted to testify to a certain act of the
defendant; that is, that the defendant showed him the place where certain goods were, which
the witness found concealed at the place pointed out, and which were proved by other
witnesses to be the property of the Nevada Hardware and Supply Company, and were proven
to have been feloniously taken from the room described in the indictment on the night of the
alleged burglary. It is claimed that the admission of the testimony as to what the defendant
did as aforesaid was reversible error. But we think the evidence was properly admitted. (1
Greenl. Ev. 231; People v. Ah Ki, 20 Cal. 178; Deathridge v. State, 1 Sneed, 80; 2 Benn. &
Heard Cr. Cas. 615; Beery v. U. S., 2 Colo. 186; 3 Am. & Eng. Enc. Law, 481, note 2.)
25 Nev. 432, 448 (1900) State v. Simas
The state called Deputy Constable Leeper to prove certain alleged confessions and
admissions made to him by the defendant. The witness was asked to state whether or not he
had any conversation with the defendant on the 9th or 10th of February. Defendant's counsel
objected to the question upon the ground it appears from the evidence which has already
been produced that that was subsequent to the time of the alleged conversation with his
brother, and that Mr. Leeper was the officer that had held out the inducement as testified by
Emanuel The court replied, I don't think it is shown that it was subsequent to that
conversation.
Emanuel Simas, defendant's brother, had testified that Deputy Sheriff Hayes and Deputy
Constable Leeper had said to him that it would be better for the defendant to tell all about the
thing; to give out the knives and razors and other things; that the trial would be lighter for
him, etc. He testified that he had told the defendant, at a certain time named, what these
officers had said. On this testimony the proffered evidence of Mr. Hayes as to defendant's
alleged confession to him was excluded. It was the above evidence of Emanuel that counsel
referred to in his objection to the question put to Mr. Leeper.
The examination of witness Leeper was continued by the district attorney. He testified to a
certain conversation he had with the defendant on the morning of the 9th day of February, and
that he had another conversation on the evening of the same day, at 7 o'clock. He was asked
to state what the latter conversation was. To this counsel objected, and stated, I also desire to
offer proof at this time to show that this conversation was after the inducements had been
held out to the defendant. The inducements referred to were those testified to by Emanuel,
given above. By the Court to Leeper: What day did you say this was? Answer: This was
on the evening of the 9th (February), about 7 o'clock. By the Court: The offer at this time
will be denied.
It is urged by counsel that the denial of said offer at that time is fatal error, and he cites
several authorities to support his contention. We do not think these authorities are in point.
They are to the effect that in a criminal case, when an alleged confession of the defendant is
offered in evidence against him, and he objects to its admission on the ground that he has
been induced to make the confession through threats or promises of favor, etc., and
offers evidence to prove such inducement, it is error to admit the confession before giving
the defendant the opportunity to produce his proffered evidence.
25 Nev. 432, 449 (1900) State v. Simas
an alleged confession of the defendant is offered in evidence against him, and he objects to its
admission on the ground that he has been induced to make the confession through threats or
promises of favor, etc., and offers evidence to prove such inducement, it is error to admit the
confession before giving the defendant the opportunity to produce his proffered evidence. But
in this case the defendant's witness Emanuel had testified fully as to the inducement offered
to the defendant, and clearly and definitely fixed the date thereof as Saturday, the 10th day of
Februarythe day after the alleged confession to Leeper.
It was not claimed that any mistake had been made as to the date of said inducements by
Emanuel. It was not proposed to show by any other evidence than that given already by
Emanuel that the said inducements were given prior to the confession made to Leeper.
Indeed, it appears that the defendant had no other evidence to offer; for subsequently
Emanuel was recalled by the defendant, and testified as before as to the date of said
inducements, and did not testify to any other inducements as having been offered to defendant
at any other time. Defendant produced no other witness on the subject, although the court
informed the defendant, after Leeper had testified to the said conversation of the evening of
the 9th, that he could then introduce any evidence he might have concerning the matter.
There was nothing in the former or latter evidence of Emanuel, or any other evidence in
the case, tending to show that the confessions made to Leeper on the 9th of February, as he
testified, were subsequent to any inducements held out to the defendant. It seems that counsel
had in mind that by the testimony which Emanuel had given it appeared that the alleged
confession was made subsequent to said alleged inducements, to which Emanuel had
testified, while the court was satisfied to the contrary. It clearly appears that the court was
correct. The earnest contention of counsel that the court erred with respect to the admission of
the alleged conversation had between Leeper and the defendant on the evening of the 9th day
of February is without merit.
The JuryChallenges: Enoch Morrell was challenged by defendant for cause, challenge
denied, and the ruling assigned as error. "In a challenge for implied bias one or more of the
causes stated in section three hundred and forty must be alleged.
25 Nev. 432, 450 (1900) State v. Simas
assigned as error. In a challenge for implied bias one or more of the causes stated in section
three hundred and forty must be alleged. In a challenge for actual bias, it must be alleged that
the juror is biased against the party challenging. (Comp. Laws, sec. 4307.) This was not
done, and consequently the challenge was insufficient to raise any point for the consideration
of this court. (State v. Vaughan, 22 Nev. 285, 20 Pac. 733; State v. Gray, 19 Nev. 212, 8 Pac.
456; State v. Raymond, 11 Nev, 98; State v. Squaires, 2 Nev. 226.) In State v. Chapman, 6
Nev. 320, it was held that, when the only specification of grounds of challenge to a juror was
for cause, it was entirely insufficient, and that on appeal no objection would be entertained.
The statute and the above authorities sustain the ruling of the court denying the challenge to
juror Morrell.
The defendant challenged J. E. Ede and A. D. Gould, each upon the ground that the juror
had formed an unqualified opinion concerning the guilt or innocence of the defendant. Each
challenge was denied, and the ruling assigned as error. The answers of Mr. Ede to questions
put to him by the district attorney tend to show that he had not formed any opinion whatever
as to the guilt or innocence of the defendant, while some answers to questions by defendant's
counsel tend to show that he had formed an opinion concerning the guilt or innocence of the
defendant from what he had heard in talk upon the street. Mr. Gould testified that he had
formed an opinion concerning the guilt or innocence of the defendant from what he had read
in the newspapers; that he would be wholly governed by the evidence given in the case and
instructions of the court, and disregard any opinion he might have formed from newspaper
accounts. Each of them testified that he had no prejudice or bias for or against the defendant,
and that he knew of no reason why he could not give the defendant a fair trial.
In State v. McClear, 11 Nev. 39, the court, after an extended consideration of the question
of the competency of trial jurors, and the citation of numerous authorities, said: Now, it does
not follow from anything we have said, or from any of the opinions we have quoted, that the
mere fact that the juror had formed or expressed an opinion upon the guilt or innocence of
the defendant necessarily renders him an incompetent juror.
25 Nev. 432, 451 (1900) State v. Simas
innocence of the defendant necessarily renders him an incompetent juror. As a matter of fact,
it is well known that in this enlightened age, where railroads, postoffices, and the telegraph
open up every avenue of communication, and where every man reads, or ought to read, the
newspapers containing the current news and events of the day, a man who may have formed
and expressed an opinion that defendant is guilty or innocent from what he has read in the
daily papers, or heard from idle rumor on the street, or partial statements gleaned from casual
conversations with witnesses or other persons, may nevertheless be a competent juror, and
might, upon a full hearing of the case, from the testimony delivered under oath in a court of
justice, be fully prepared to render an impartial verdict according to the law and the
evidence.
The jurors being examined in the presence of the judge of the trial court, and subject to his
observation and examination, and the judge in most instances being personally acquainted
with the jurors, where there is not a dense population from which the jurors are summoned,
his judgment as to the qualification of the jurors is entitled to great weight, and should not be
overruled by the appellate court unless it is clearly manifest that he has erred in his rulings
upon the challenge interposed. It devolves upon the appellant to affirmatively and clearly
show error. Considering the whole examination of these jurors, respectively, we cannot say
that either of them had formed an unqualified opinion or belief that the prisoner is guilty or
not guilty of the offense charged, in the sense of the statute; that is, an opinion so
deliberately entertained that it had become a fixed and settled belief of the prisoner's guilt or
innocence. (State v. McClear, 11 Nev., supra.)
Some other objections were made during the progress of the trial, and exceptions taken to
the rulings of the court thereon, but we do not consider that they require consideration in this
opinion.
Not finding that the court misdirected the jury in the matter of law, nor that the verdict of
the jury is against law or contrary to the evidence, as alleged as grounds for defendant's
motion for new trial, and finding no material error in the record, the order and judgment
appealed from are affirmed.
25 Nev. 432, 452 (1900) State v. Simas
in the record, the order and judgment appealed from are affirmed.
I concur: Belknap, J.
Massey, J., concurring:
It is with reluctance that I give my assent to that part of the opinion which holds that it was
not error to allow the juror Enoch Morrell, under the facts of the record, to remain on the jury.
While it is true that the challenge of this juror failed to state any one of the causes
prescribed by section 340 of the criminal practice act, yet it is apparent that the court treated
the challenge as based upon the eighth subdivision of said section.
But, being unwilling to disturb the settled rule announced in the cases cited, I therefore
concur.
____________
25 Nev. 452, 452 (1900) State v. Stoddard
[No. 1590.]
STATE OF NEVADA, ex rel. W. E. WINNIE, Relator, v. A. B. STODDARD, et al., as the
Board of County Commissioners of Storey County, Respondents.
Constitutional LawLegislatureApportionment. The constitution of this state contains no restrictive or
mandatory provisions as to the time when, or how often, the legislature may make the representative
apportionment. The legislature, therefore, may make such apportionments as often as it so wills.
IdemRule. This court will not pass upon a constitutional question unless it is clearly involved, and a decision
thereon is necessary to a determination of the case.
MandamusWhen Writ Will Issue. This court, in the exercise of its discretion, in proceedings in mandamus,
will grant the peremptory writ only when the right sought to be protected is clear and undoubted.
IdemElectionsLegislative Apportionment. Where, on an application for mandamus to compel a board of
county commissioners to issue notice of a general election for members of the legislature under the
apportionment act of 1891, on the ground that the apportionment act of 1899 is unconstitutional, it
appears that the act of 1891 is subject to the same objections, the writ must be denied.
Original proceeding. Application for a writ of mandamus by the State, on the relation of
W. E. Winnie, to compel A. B. Stoddard, and others, as the Board of County
Commissioners of Storey County, to cause their clerk to issue an election notice.
compel A. B. Stoddard, and others, as the Board of County Commissioners of Storey County,
to cause their clerk to issue an election notice. Certain other parties intervened by permission
of court. Writ denied.
W. E. Winnie, in pro. per.:
I. Relator contends that the act of 1899 is unconstitutional and void, in that the
apportionment of senators and assemblymen made therein was not based upon an
enumeration of the inhabitants of this state taken under the direction of the legislature thereof,
nor upon any census taken under the direction of the congress of the United States, as
required by the provisions of section 13 of article XV of the constitution of this state, and
violates section 13 of the declaration of rights in said constitution. (Stats. 1899, p. 121;
Const., sec. 13, art. XV; sec. 13, Declaration of Rights; Nevada Const. Debates and
Proceedings, p. 66 and 614.)
II. That the act of 1899 being unconstitutional and void, the act of 1891 is still of full
force and effect. (11 Nev. 69; 22 Nev. 351-354; 3 Am. & Eng. Enc. Law, 678.)
III. There is no question but that the last official census of Nevada, taken prior to the
passage of the act of 1899, was taken in 1890, under the direction of the congress of the
United States. The apportionment act of 1891 was passed at the next session of the legislature
following the taking of this census. It is conclusively presumed that this act was based upon
that census, that all of the constitutional prerequisites were compiled with and the act
properly passed. (56 Pac. Rep. 1008.)
E. L. Williams, District Attorney of Washoe County, Frank McNamee, District Attorney of
Lincoln County, Thomas Wren and A. E. Cheney, for Respondents and Interveners:
I. The writ of mandate is only granted when, in the exercise of discretion, it can be seen
that the right sought to be protected is clear and undoubted. No other remedy exists and the
writ if issued will be effectual. (High, Extr. Leg. Rem., 3d ed., sec. 9; State v. LaGrave, 22
Nev. 417; 13 Enc. Pl. & Prac. 493, 494.)
II. There is no constitutional mandate in this state as to when or how often the legislature
shall apportion the representation. There being no restriction upon that body, it may act as
often as it sees fit. It possesses every legislative power not expressly denied. With the
exercise of its discretion courts will never interfere, unless there has been a plain, flagrant and
intentional disregard of the constitutionunless it can be seen from the act itself that it has
been enacted not in the exercise of a power granted by the constitution to secure some end
sought by the fundamental law, but in disregard of the grant of power and destroys the very
protection sought to be afforded. (People v. Rice, 135 N. Y. 473; Baird v. Supervisors, 142
N. Y. 527; People v. Thompson, 155 Ill. 451; State v. Campbell, 48 Ohio St. 435; Prouty v.
Stover, 11 Kan, 235, 261; Opinion of Justices, 18 Me. 458, 468, 488; State v. Ruhe, 52 Pac.
275.)
III. It is manifest that the act of 1899 is more equal and just under existing conditions than
that of 1891. If the act of 1899 is unconstitutional, that of 1891 also is, and the relator is not
entitled to a writ to enforce a right claimed under an unconstitutional act. (People v.
Thompson, 155 Ill. 451; Parker v. Powell, 133 Ind. 201-203.) If the act of 1899 is invalid, the
court must go back until it finds a valid one. (Board v. Blacker, 92 Mich. 638, 653.)
By the Court, Massey J.:
This is an action by the state, on the relation of W. E. Winnie, the district attorney and an
elector of Storey county, against the respondents, the board of county commissioners of said
county, to compel them as such board to cause their clerk, by proper order, to issue the
necessary notice of the ensuing general election for members of the state senate and members
of the assembly under the apportionment act of 1891.
The relator contends that the subsequent act of 1899 is not based upon the population, as
shown by the census taken under the act of congress in 1890, and is therefore unconstitutional
and void.
It is shown by the petitioner, among other things, that the respondents, on the 6th day of
August, 1900, refused the request and demand of the relator to make the order for the
election under the act of 1S91, and did at that time make an order for the notice of
election of senators and assemblymen as provided for by the act of 1S99.
request and demand of the relator to make the order for the election under the act of 1891,
and did at that time make an order for the notice of election of senators and assemblymen as
provided for by the act of 1899. Upon this petition the alternative writ was issued. The
respondents by answer practically admit all the facts alleged in the petition.
By permission of court, Washoe and Lincoln counties have intervened and contest the
relator's right to the peremptory writ. The interveners, among other matters, contend that the
act of 1899 is valid, or, if invalid for the reason assigned by the relator, the act of 1891, upon
which relator bases his right of representation in the legislature, and all other prior acts,
contain the same or greater infirmities and inequalities, and are for like reasons invalid, and
therefore, under settled rules, the court should deny the peremptory writ.
In 1891 the legislature passed An act for the reapportionment of senators and
assemblymen in the several counties of this state, by which Storey county was given a
representation in the senate of two senators and a representation in the assembly of six
assemblymen. By the same act Washoe county was given a representation of one senator and
four assemblymen; Elko county, one senator and three assemblymen; Lincoln county, one
senator and one assemblyman, and Humboldt county, one senator and two assemblymen.
(Stats. 1891, p. 23.)
In 1899 the legislature amended the above act by which the representation of Storey
county was reduced to one senator and four assemblymen. This amended act gave to Washoe
county two senators, to Elko county four assemblymen, to Humboldt county three
assemblymen, and to Lincoln county two assemblymen. (Stats. 1899, p. 121.)
The representation provided for the other counties of the state will be referred to as it may
become necessary in the discussion of the question presented.
It is made the duty of the several boards of county commissioners, by section 4 of the act
relating to elections, to cause their clerks to make out and send by mail to the registry agents
of their respective counties as least twenty days before any general election notices of such
election, the prescribed form of which, with other matters, requires that the names of the
offices to be filled shall be set out therein.
names of the offices to be filled shall be set out therein. (Comp. L., 1900, sec. 1588.)
The jurisdiction of this court to declare, in a proper case, an apportionment act invalid and
unconstitutional is not questioned by the interveners, and is, as we believe, so well
established as not to require discussion or citation of authorities to support it. The relator rests
his contention as to the invalidity of the act of 1899 upon the declaration of section 13, article
I, of the constitution, that Representation shall be apportioned according to population, and
upon the further provision of section 13, article XV, of the same instrument, which requires
that the enumeration of the inhabitants of the state shall be taken under the direction of the
legislature, if deemed necessary, in 1865, 1867 and 1875, and every ten years thereafter, and
these enumerations, together with the census that may be taken under the direction of the
congress of the United States in 1870, and every subsequent ten years, shall serve as the basis
of representation in both houses of the legislature. These provisions of our organic law were
intended to secure to the citizen an equal representation in making the laws of the stateone
of the most sacred rights of citizenshipa right to be enjoyed equally by all the citizens of
the state.
It is fundamental that every law passed by the legislature and approved by the governor is
presumed to be constitutional; every intendment is in its favor and it should be sustained
unless there are specific constitutional restrictions upon the power of the legislature, and the
law is shown to be within those restrictions.
The relator urges that under the provisions of our constitution above cited, making the
population ascertained by the census of 1890 (no census having been taken in 1895 under the
authority of the legislature for that purpose) the basis of representation in making
apportionments, and under the rule announced by the courts of other states, with
constitutional provisions similar to those found in our constitution (holding that, in making
representative apportionments, numerical equality of population, so far as practicable, is
imposed by these provisions upon the legislature), if in making representative apportionments
under these provisions there should be such a wide and bold departure from this rule that
it could not be justified by the exercise of any judgment or discretion, and that shows an
intention on the part of the legislature to ignore and disregard the rule in order to
promote some other object than a constitutional apportionment, then it becomes our duty
to declare the act making such apportionment unconstitutional and void.
visions there should be such a wide and bold departure from this rule that it could not be
justified by the exercise of any judgment or discretion, and that shows an intention on the part
of the legislature to ignore and disregard the rule in order to promote some other object than a
constitutional apportionment, then it becomes our duty to declare the act making such
apportionment unconstitutional and void.
The following cases are cited in support of this contention: Giddings v. Secretary of State,
93 Mich. 1; State v. Cunningham, 53 N. W. (Wis.) 48; State v. Cunningham, 81 Wis. 440;
State v. Thompson, 155 Ill. 451.
If our investigations were limited in these proceedings to ascertaining whether said act of
1899 is constitutional or not, then it might become necessary to say how far and to what
extent the rule relied upon should apply; but the relator asks us to direct the respondents to
make an order for the notice of election under the apportionment act of 1891, basing his right
thereto upon the claim that the last-named act was founded upon the census of 1890, and is
therefore valid.
As against this contention the interveners claim that said act of 1891, under which the
relator as an elector bases his rights, contains grosser inequalities that the act of 1899, by
which other citizens and electors of the state are deprived of their right of representation. If
we are limited in our investigation to the act of 1899, and the destruction thereby of the rights
of the relator, and the other citizens of Storey county, then is the relator's contention tenable.
In the discussion of this question it is well to note at this time that there are not found in the
articles of our constitution above cited, or in any of the other articles constituting that
instrument, any restrictive or mandatory provisions whatever as to the time when and how
often the legislature made make the representative apportionment, and it is too well
established even to require discussion that, in the absence of such restrictive or mandatory
provisions, the legislature may in its discretion make such apportionments as often as it so
wills.
Returning, then, to the question as to how far and to what extent the court will go in its
investigation of the acts of 1891 and 1899, and for what purpose, in proceedings of this kind,
we find that the question is not entirely new, and there are well-considered opinions of the
courts of other states which throw much light and greatly assist in its correct
determination.
are well-considered opinions of the courts of other states which throw much light and greatly
assist in its correct determination.
In the case of Parker v. Statean action in mandamus to compel certain officers to take
the necessary steps to hold the election of 1892 for senators and representatives under the
apportionment act of 1879, and enjoin them from proceeding under the later act of
1891Mr. Justice Coffey, of the Supreme Court of Indiana, discussing the precise question,
uses the following language: The chief object of this suit is to secure a decision upon the
question of the constitutionality of the several acts of the general assembly referred to in the
complaint. The question is presented in the same manner as the question was presented in the
case of Giddings v. Secretary of State, supra, and in the case of People v. Rice, 135 N. Y.
473. The case of Giddings v. Secretary of State was an action to enjoin the secretary of state
of the State of Michigan from taking the necessary steps to hold an election for state senators
under an apportionment act approved in 1891, upon the ground that such act was
unconstitutional, and to compel him by mandamus to proceed under an apportionment act
approved in the year 1885. The case of People v. Rice was an action to enjoin the proper
officers of the State of New York from proceeding to the election of senators and
representatives under an apportionment act approved in the year 1892, upon the ground that
such apportionment act was unconstitutional, and to compel them by mandamus to proceed to
such election under an apportionment act approved in the year 1879. In each of these cases it
seems not to have been doubted that the question of the validity of these several acts was
presented in such a form as to require a decision upon that point. So in this case we are
unable to perceive how the merits of the controversy are to be determined without a decision
upon the question of the validity of the apportionment law of this state passed in the year
1891. Should we reach the conclusion that this act is not unconstitutional, it will not be
necessary to pass upon the validity of the other acts, but, should be decide it invalid, then, in
determining whether the appellee was entitled to the relief demanded, it would become
necessary to pass upon the validity of the act of 1S79, and, if that is found valid, the
question of the constitutionality of the act of 1SS5 arises.
ity of the act of 1879, and, if that is found valid, the question of the constitutionality of the act
of 1885 arises. If the act of 1891 and the act of 1879 are both unconstitutional, the appellee
was not entitled to the relief sought, and the question of the validity of the act of 1885 is not
involved in such a way as to require a decision upon its constitutionality.
Mr. Justice Elliott, in a separate opinion, uses the following language, which seems to us
to be based upon sound reason: The relator's complaint rests entirely upon the theory that the
act of 1879 is valid, but, if he is right in the grounds upon which he assails the subsequent
acts, that act is as bad as any of the others. Hence he has no standing in court, as he himself
makes evident; and, when we have adjudged that he has no standing in court, we have
decided all questions properly in the case, except jurisdictional ones, so that we cannot
properly or authoritatively give judgment upon the validity of subsequent legislative
enactments. The relator is involved in a fatal dilemma. If the acts of 1885 and 1891 are valid,
he can have no relief. If they are void, so also is that of 1879. So that, whether the acts of
1885 and 1891 are valid or void, he can have no relief, and in either event he must utterly fail.
The act of 1879 being void according to the relator's own theory, he has, as he himself
demonstrates, no fulcrum capable of supporting a lever for the overthrow of subsequent
legislative enactments; and hence all that we can decide, beyond jurisdictional questions,
without transgressing settled principles, is that by his own averments his case is
foundationless. Such a decision ends the case, and we cannot with propriety consider other
questions, except jurisdictional ones, and certainly not high and grave constitutional
questions. If the system which the relator avers is in conflict with the constitution is to be
smitten to its death by the courts, it must be at the suit of one who assails all the legislative
acts founded on that system; for it cannot be done at the suit of a party who demands that one
of the acts resting on that system be upheld, and the others destroyed. The relator is the actor,
and is bound to make a case rendering it imperatively necessary to decide the constitutional
questions he assumes to present; and he must succeed upon the strength of his own case or
fail, for he cannot succeed upon the weakness of his adversaries.
upon the weakness of his adversaries. The act of 1879 is, according to his own theory, as full
of evil as those he assaults, so that, if one goes down, so must all; and with the fall of the act
of 1879 ends the relator's case. It would be strange indeed if one of several acts resting upon
the same system should be upheld, and the others cast downand stranger still if that should
be done where the one rescued from condemnation contains more of evil than those
condemned. One who secures or demands a benefit under an unconstitutional act is estopped
to assert its invalidity. (Parker v. State, 133 Ind. 178.)
In the case of Giddings v. Secretary of Statean action in mandamus to restrain the giving
notice of election of senators under the apportionment act of 1891, and to compel such notice
to be given under the prior act of 1885Mr. Justice Grant, of the Supreme Court of
Michigan, says: The petition prays that the respondent be directed to give notice of the
election under the apportionment act of 1885. The constitutionality of this act is therefore
directly involved in the controversy, unless it be held to be removed from the question by the
fact that the people have acquiesced in its validity by acting under it for three elections. It
must be conceded that this act is affected with the same constitutional infirmity as the act of
1891. It is unnecessary to determine whether such infirmity exists to an equal or greater or
less degree. It is sufficient to say that it is not in accord with the constitution, and for the same
reasons which apply to the act of 1891. It is therefore insisted with great force by the
attorney-general that no election should be ordered under the former act, and he also urges in
consequence that no relief can be granted. It is also said by him that, so far as he has
examined other apportionment acts, they are all subject to the same objection. Under this
reasoning, it would follow that, if the act of 1891 is held to be void, there is no remedy except
the executive of the state decides to call a special session of the legislature. In such case there
would be no apportionment law under which the people might elect a legislature. While the
constitution requires the legislature to rearrange the district at the next session after each
enumeration, yet we are of the opinion that each apportionment act remains in force until it
is supplanted by a subsequent valid act.
that each apportionment act remains in force until it is supplanted by a subsequent valid act. It
was my opinion that the respondent should be directed to give notice under the act of 1885,
inasmuch as the people have acquiesced in its validity by so long acting under it. But I yield
my opinion to that of my brethren, who are of the opinion that the notice should be given
under the law of 1881, the validity of which is not here brought in controversy, unless the
executive shall call a special session of the legislature. (Giddings v. Secretary of State, 93
Mich. 9.)
In the same case Mr. Chief Justice Morse uses the following language: We have been
obliged, under the issues here made, to investigate but two apportionmentsthose of 1891
and 1885. Both are tarred with the same stick. We do not care to go further, since there is a
remedy in the hands of the executive and legislature. (Giddings v. Secretary of State, 93
Mich. 13.)
The court in the above case declared both acts unconstitutional and ordered the notice of
election to be given under the act of 1885; but, as we shall presently show, the conditions of
legislation in this state are such as to preclude us from going as far as the Supreme Court of
Michigan.
In a prior case the same court held the act apportioning representatives in 1891 void, and
the act of 1885 also void; and, upon an examination of the act of 1881, the same was held to
be valid, and ordered the notice of election given under that act. (Board of Supervisors v.
Secretary of State, 92 Mich. 638.)
In the case of People v. Thompsonan action involving the constitutionality of an act
making an apportionment of the state into senatorial districts, approved June 15, 1893, and to
compel the issuance of notices of election under the apportionment act of 1882Mr. Justice
Carter, of the Supreme Court of Illinois, says: Counsel for the appellants say that the only
question involved is the constitutionality of the apportionment act of 1893, while counsel for
appellee insist that the validity of the act of 1882 is equally involved. As the relator seeks
relief under the act of 1882, on the assumption that it is still in force as a valid and
constitutional act, is seems clear that, if the act of 1893 be found invalid, the act of 1SS2
must be subjected to the same constitutional test, and if it, also, be found invalid,
judgment must go against the relator to the same extent as if the act of 1S93 should be
found to be valid.
invalid, the act of 1882 must be subjected to the same constitutional test, and if it, also, be
found invalid, judgment must go against the relator to the same extent as if the act of 1893
should be found to be valid. Indeed, a plausible argument is made by counsel for appellee on
the theory that it clearly appears that both acts are subject to the same vice, and that this court
should proceed no further, but affirm the judgment on the ground that, if one act be void, both
are, and that, even if relator should succeed in having the act of 1893 set aside, he must still
fail in his suit to establish the legal existence of the alleged Nineteenth district formed by the
act of 1882; that the court can be called upon to determine the constitutionality of a statute
only when such determination is necessary in the decision of a cause; and that it is
unnecessary in this case, because, whether the relator succeeds or fails in his attack on the act
of 1893, he must lose his caseboth acts, if either should fall, going down together before
the same onset. This view was taken by Mr. Justice Elliott, of the Supreme Court of Indiana,
in a separate opinion in a similar cause in that court; but a majority of the court held that the
constitutionality of the apportionment acts there brought in question was fairly presented for
decision. (Parker v. State, 133 Ind. 178.) While we recognize the well-settled and
long-established rule that courts will not go out of their way to pass upon the constitutionality
of a statute assailed, but will decide the case on other grounds when other grounds exist and
the cause can be properly determined without considering whether the act be valid or invalid,
we are of the opinion that the question of the validity of the apportionment act of 1893 is not
only fairly presented, but is necessarily involved in the decision of the case, and that, if that
act is found to be invalid, the question whether or not the act of 1882 is unrepealed and
constitutional would than arise. (People v. Thompson, 155 Ill. 460.)
In the above case, after an exhaustive discussion of the constitutional questions involved,
the court determined that the act of 1893 was constitutional.
The following additional cases may also be consulted as throwing some light upon the
question: People v. Rice, 135 N. Y. 473; Baird v. Supervisors, 142 N. Y. 527; State v.
Campbell, 4S Ohio St.
Campbell, 48 Ohio St. 435; Prouty v. Stover, 11 Kan. 235; Opinion of Justices, 18 Me. 458.
We come now to a consideration of the alleged inequalities in the apportionment acts of
1891 and 1899, and in this connection we deem it advisable to say that it is unnecessary to
express any opinion upon the suggested question as to whether our legislature has the power
or authority, under the constitutional provisions cited, to determine the population from the
number of votes cast at an election based upon so-called established ratio of votes to
population, and to use the same as the basis of representation in making apportionments.
By the census taken under the act of congress of the United States in 1890, the entire
population of the state was 45,761. Under the act of 1891, 3,000 of the population, as shown
by the census of 1890, is approximately the unit of senatorial representation, and 1,500 is
approximately the unit of representation in the assembly. By that act Churchill county, with a
population of 703, has one senator, while Elko county, with a population of 4,794, and
Washoe county, with a population of 6,437, and Ormsby county, with a population of 4,843,
are each given but one senator. Nye county, with a population of 1,290, is given the same
senatorial representation as Washoe, Elko and Ormsby counties. Churchill county, with the
population above stated, has the same representation in the senate and assembly as Lincoln
county, with a population of 2,446. Lyon county, with a population of 1,987, has the same
senatorial representation as Elko, Washoe and Ormsby, and one more member of the
assembly than Lincoln county with its population of 2,446. White Pine county has the same
representation in senate and assembly, with a population of 1,721, as Lincoln, with the
population above stated. Other inequalities might be pointed out, but we deem these
sufficient for the purposes of the case. Without pointing out the specific inequalities under the
amended act of 1899 based upon the same census, it is sufficient to say that, no matter upon
what reasonable basis the unit of representation is estimated, nearly all of the infirmities of
the act of 1891 are reenacted in the amended act of 1899. The equalization of representation
of the counties of Elko, Washoe and Lincoln resulted in an injustice to Storey county, and
carried with it many of the grossest vices of the act of 1S91.
tation of the counties of Elko, Washoe and Lincoln resulted in an injustice to Storey county,
and carried with it many of the grossest vices of the act of 1891. The right of representation in
the legislative department under the constitution is just as sacred to the electors of Lincoln or
Washoe as to the electors of Storey; and, if the act of 1899 must fall because it deprives the
electors of Storey county of that right, so must the act of 1891 fall because it deprives the
electors of Washoe, Lincoln and other counties of the same high and sacred right.
If we could find some prior act containing the elements of that legislative equality
contemplated by the rule upon which to base a judgment, as was found by the court in
Michigan, and under like legislative conditions, the question would be easy of solution; but in
looking back of the act of 1891, under the contention of the interveners, we are confronted
with the proposition that there is no act of that date which could be based upon the census of
1890, and, so far as we have investigated, the act of 1881, in the language above quoted, is
tarred with the same stick. We are also met with the further obstacle that if we undertake to
rest our decision upon acts prior to 1881, or even upon the constitutional apportionment,
some counties would be entirely deprived of representation.
Further, if we declare these acts unconstitutional, with the near approach of the general
election, at which all members of the assembly are to be elected, and a part of the members of
the senate, we are again confronted with the question whether our decision might not, under
certain other provisions of the constitution fixing the term of office of senators and
assemblymen, deprive the state of all legislative action at the time fixed by the constitution.
Under these circumstances, and facing these conditions, we must rely upon general rules
announced by this courtthat it will never pass upon a constitutional question unless it is
clearly involved, and a decision thereon is necessary to a determination of the case, and that
this court, in the exercise of its discretion in proceedings in mandamus, will grant the
peremptory writ only when the right sought to be protected is clear and undoubted. (State v.
LaGrave, 22 Nev.
417; State v. Meder, 22 Nev. 265; State v. Wheeler, 23 Nev. 143.)
The act of 1891, upon which relator rests his right, is subject to the same objection as the act
of 1899, which affects the rights of others, and is, according to his own theory, invalid, and as
aid by Mr. Justice Elliott, as above quoted, By his own averments his case is
foundationless.
Therefore, upon the showing made, and for the reasons given, the peremptory writ will be
denied.
____________
25 Nev. 465, 465 (1900) State v. Maher
[No. 1584.]
THE STATE OF NEVADA, Respondent, v. ARNOLD
MAHER, Appellant.
Criminal LawInstructions. Where an instruction in a criminal case has already been given in substance and in
terms as clear, full and favorable as in the one requested, its refusal is not error.
IdemIdemRecord. Where defendant contends that the instructions refused were not embraced in the charge
given, he must affirmatively show such fact by the record.
IdemIdemIdem. Where there is no claim of error by defendant in the instructions as modified and given,
and the record does not contain the instructions requested, the appellate court cannot consider the error
assigned in the modification of such instructions.
IdemIdemIdemDuty of Court to Endorse Action. Though it was the court's duty to endorse on each of
the instructions asked the part given and the part refused, defendant cannot complain of the court's failure
in this respect, if the instructions as asked are not in the record.
IdemIdemSufficiency of Proof to Convict. An instruction that: You are instructed that every material fact
going to the guilt should be fully established in the same manner and to the same extent as if the whole
issue rested on it. You must be satisfied that each link in the chain of circumstances essential to the
conclusion sought to be established by the prosecution has been fully proved beyond a reasonable doubt;
otherwise, you must acquitis a fair statement of the two propositions of law; the one as to the
establishment of every material fact going to defendant's guilt, and the other as to the conclusiveness of
the proof.
IdemSentenceHard LaborModification. A sentence on a conviction of grand larceny is not void because
the court imposes as a part of the penalty at hard labor. In any event, the court could under the statute,
in this proceeding, modify the judgment by striking out the objectionable words.
25 Nev. 465, 466 (1900) State v. Maher
Appeal from the Fourth Judicial District Court, Ormsby County; C. E. Mack, Judge.
Arnold Maher was convicted of grand larceny, and appeals. Affirmed.
E. T. Dupuis, for Appellant:
I. The court erred in not giving instructions Nos. 3, 4 and 16 to the jury as they were
written and asked by the defendant's counsel. Each is modified by the court. But, as they
appear in the record, each fail to show how and wherein they were modified, although each
bear the endorsement and signature of the trial judge, to wit: Given as modified, C. E. Mack,
District Judge. This action on the part of the court was not in compliance with sections
387-388 of the criminal practice act, which says that Each party may present to the court any
written charge and request that it be given. If the court think it correct and pertinent, it shall
be given; if not, it shall be refused. * * * Upon each charge so presented and given, the court
shall endorse its decision and sign it. If part be given and part refused, the court shall
distinguish, showing by the endorsement what part of the charge was given and what part
refused. This the court did not do, and appellant assigns it as error. These three instructions
were rewritten by the trial judge, who modified them to suit his pleasure, without the consent
or knowledge of the defendant's counsel; without leaving any marks or words to indicate what
part was given and what part was refused or what words were added thereto.
II. Appellant assigns as error the court's action relative to instructions asked by the
defendant marked Nos. 1 and 6. The record shows that the court gave these two instructions
with modifications, but the modifications, whatever they may have been, are not shown by
the record certified to this court for review. (Section 426, Criminal Practice Act.) What
construction is to be given this statute? Is not its object to give to a defendant a manner of
appealing without the necessity of a bill of exceptions? It certainly can serve no other
purpose. It is to be read in conjunction with sections 387 and 388 of the criminal practice act,
which makes it obligatory of the trial judge that upon each charge so presented and given
or refused, the court shall endorse its decision and sign it.
25 Nev. 465, 467 (1900) State v. Maher
presented and given or refused, the court shall endorse its decision and sign it. If part be given
and part refused, the court shall distinguish, showing by the endorsement, what part of the
charge was given and what part refused.
III. Upon instruction No. 6 the court did not perform that duty. Appellant contends that, if
a statute gives to a defendant a mode of appeal dependent upon the performance of certain
acts required by law of the court, and the court refuses to follow the law, and through its
action, the defendant is denied the advantage of an appeal as to those points, the defendant is
deprived of a substantial right such as to warrant the reversal of the judgment. (State v.
McCombs, 13 Iowa, 426.)
IV. Instruction No. 6 was not given in the form in which it was asked, but was rewritten
by the court and endorsed given as modified, with the signature of the trial judge. The
original instruction bears no endorsement whatever and is consequently no part of the record.
(People v. Gleason, 1 Nev. 173; People v. Flahave, 58 Cal. 249, People v. Thethrow, 40 Cal.
287.) How is this court to review the modification made to this instruction? It must be
admitted that there is no way in which it can be done. The court's action had deprived
defendant of this right. The law gives the defendant a mode of appeal other than by bill of
exceptionsfrom the judgment roll. If the action of the lower court in this case is upheld,
does it not put this right of appeal exclusively in the discretion of the district court? If the trial
judge should neglect, as he has done in this case, to perform the duty imposed upon him by
law, would not the defendant's right to an advantage of appeal in this manner be cut off? The
right to have the instruction reviewed by the supreme court would certainly be denied the
defendant.
V. The only means of identifying the action of the court as to instruction No. 6 would be
to compare it with the original paper upon which the instruction was written. But how is this
court to know it was the original paper and the one requested by the defendant? it bears no
endorsement whatever or signature of the court. It was inserted in the record by the clerk. It
certainly cannot be used by the appellant to identify any error which may have been made by
the court in the instructions given instead. "It does not bear the authentication of the
court and forms no part of the record on appeal." {People v. January, 77 Cal. 179; Ham v.
W. I. & N. Ry. Co.,
25 Nev. 465, 468 (1900) State v. Maher
court in the instructions given instead. It does not bear the authentication of the court and
forms no part of the record on appeal. (People v. January, 77 Cal. 179; Ham v. W. I. & N.
Ry. Co., 61 Iowa, 720; sec. 288, Crim. Pr. Act; Baldwin v. Shill, 3 Ind. App. 291; Condon v.
Morning Star, 24 Ind. 150; Bois v. Henry, 32 Ill. 138.)
VI. The court committed error in modifying the following instructions asked by the
defendant's counsel: You are instructed that each circumstance essential to the conclusion of
the defendant's guilt should be fully established in the same manner and to the same extent as
if the whole issue rested upon it. You must be satisfied that each link in the chain of
circumstances essential to the conclusion sought to be established by the prosecution has been
fully proved beyond a reasonable doubt, to your entire satisfaction; otherwise, you must
acquit. The foregoing instruction was copied from the case of People v. Ah Chung, 54 Cal.
403, and in commenting upon the giving of this instruction by the lower court, the supreme
court of that state say: This was a clear and intelligible statement of the rule and fairly
presented to the jury the law of the case by which they were governed. The italicized words
show the modification of the instruction by the court. In lieu of the first words so italicized,
the court inserted the words every material fact going to. Appellant contends that this was
error. There is a broad distinction between a material fact and an essential circumstance.
A circumstance is something attending, appendant or relative to a fact or case, while a fact is
a thing done, a deed, an effect produced or achieved. The object of the instruction was to call
the attention of the jury that it was as necessary that a circumstance should be proven or
established as well as material facts in the case. The court by its modification of the
instruction confined the jury to material facts going to the guilt, which certainly must have
restrained it from giving any attention to the establishing of circumstances. A circumstance
not fully established may raise a reasonable doubt of guilt. Then, is it not as fully important
that each essential circumstance should be established in the same manner and to the same
extent as if the whole issue rested upon it, as well as every material fact? (Scott v. State, 19
Tex.
25 Nev. 465, 469 (1900) State v. Maher
App. 325; Starkie on Ev., 9th ed., sec. 856; Thomp. on Trials, sec. 2511; Sumner v. State, 5
Blackf. 579; Burrill, Cr. Evidence, p. 733; 3 Greenleaf on Evidence, sec. 30; People v.
Phipps, 39 Cal. 333.)
W. D. Jones, Attorney-General, and J. Emmett Walsh, District Attorney, for Respondent:
I. None of the purported instructions, either given, modified or refused, as contained in the
transcript on appeal on file, bear the file marks or any distinguishing or identifying marks of
the district court showing that they were asked or given in this action, and, so far as the record
is concerned, there is nothing to show that any of the purported instructions on pages 13 to
32, inclusive, of the transcript on appeal were every filed in the district court or that they are
the original papers in the case.
II. It has been repeatedly decided in this state that it is not error for the court to refuse an
instruction which has already been given in substance, and in terms as clear, full and
favorable to the defendant as those in which the court is asked to repeat it. (State v.
O'Connor, 11 Nev. 425; State v. Waterman, 1 Nev. 549; State v. Cardelli, 19 Nev. 330; State
v. McLane, 15 Nev. 364; State v. Rover, 13 Nev. 24; State v. Millain, 3 Nev. 449; People v.
Elliott, 119 Cal. 594; People v. Ramirez, 56 Cal. 538; People v. Douglass, 100 Cal. 5.)
III. Error is claimed by appellant upon the ground that some of the instructions were not
given as they were written and requested and that they fail to show wherein they were
modified. An examination of the transcript will show that some of the identical instructions
complained of are contained therein in duplicate and show the modification of the court, and,
without a bill of exceptions, how can it be proved to this court which set of these instructions
were read and given to the jury when they retired to consider their verdict? The court was not
required to give any reason for modifying these instructions and giving them as modified.
IV. The court is not bound to give instructions in the exact language used by counsel,
even if correct, but may add to, or change, the phraseology in order to made the language
more clear and explicit, or to prevent the jury from being misled."
25 Nev. 465, 470 (1900) State v. Maher
misled. (State v. Davis, 14 Nev. 413; Gaudette v. Travis, 11 Nev. 149.)
V. The action of the court in not designating what portion of the instruction was given and
what part modified was immaterial, for courts will not reverse a judgment for an abstract and
immaterial error. (People v. Ramirez, 56 Cal. 538; People v. Ybarra, 17 Cal. 166; People v.
Douglass, 100 Cal. 6.)
VI. When there is no bill of exceptions showing or referring to the evidence on which the
instruction is based, this court cannot presume that there was such evidence, but must
presume in favor of the correctness of the judgment, and consequently to presume that the
instruction was a mere abstract proposition, having no reference to the evidence in the case,
and therefore perfectly immaterial. In the absence of a bill of exceptions stating what the
evidence in the case was, the refusal of a judge to give an instruction about a legal
proposition, which might or might not be involved in the trial of a case, would not be error.
Even if it appeared affirmatively from the record that the court had given a wrong instruction
about a mere abstract principle of law, which had no application to the case on trial, this of
itself would not be such an error as to reverse the judgment. (State v. Waterman, 1 Nev. 558.)
The appellant was charged by indictment with the crime of grand larceny, and upon a trial
therefor was convicted, and sentenced to imprisonment for a term of five years. He appeals
from the judgment.
FirstIt is contended that the court erred in refusing to give to the jury instructions
numbered 2, 12, 13 and 14 asked by the appellant. Each of the instructions bears the
endorsement of the district judge to the effect that it has been given in other instructions. It
has been repeatedly decided by this court that it is not reversible error to refuse an instruction
which has already been given in substance and in terms as clear, full, and favorable as those
in which the court is asked to repeat it. (State v. Cardelli, 19 Nev. 330, 10 Pac. 433; State v.
McLane, 15 Nev. 364; State v. O'Connor, 11 Nev. 425; State v. Rover, 13 Nev. 24; State v.
Millain, 3 Nev. 409; State v. Waterman, 1 Nev. 543
25 Nev. 465, 471 (1900) State v. Maher
State v. Rover, 13 Nev. 24; State v. Millain, 3 Nev. 409; State v. Waterman, 1 Nev. 543.)
It has also been held that, if an instruction is refused because its substance has already been
given, that fact should be stated, and noted on the instruction. (State v. Ferguson, 9 Nev.
106.)
Appellant contends that it does not appear from the record that the instructions asked were
given in substance, as required by the rule. If this claim be tenable, he is at fault in not
bringing to this court all the instructions given. The record purports to contain the instructions
given by the court on its own motion, but the papers containing these instructions are no part
of the record, not being contained in a bill of exceptions, as required by the provisions of the
criminal practice act. (State v. Rover, 11 Nev. 343; State v. Forsha, 8 Nev. 137; State v.
Burns, 8 Nev. 251.)
It rests upon the appellant to show error. He must affirmatively show by the record that the
instructions asked were not embraced in the charge given; otherwise, how can we ascertain
whether or not the law contained in the charge given did not embrace the instruction refused?
The only inference which can be indulged from the record upon which the appellant relies is
that the instructions were refused because given in the instructions not carried up in the
record. (Bolen v. State, 26 Ohio St. 371; Delhaney v. State, 115 Ind. 499; Garrett v. State,
109 Ind. 527; 2 Enc. Pl. & Prac. 482, 483; 11 Enc. Pl. & Prac. 300.)
SecondThe appellant assigns as error the action of the court in modifying instructions 1
and 6 asked by him. These instructions, as modified and given, are set out in the record. The
instructions as asked are not in the record. It is not claimed that the modified instructions do
not contain a correct statement of the law. It is well settled that the court may modify
instructions so as to relieve them of any possible ambiguity, and make their meaning more
certain. (State v. Watkins, 11 Nev. 30; State v. Smith, 10 Nev. 106; State v. Davis, 14 Nev.
407.)
In the absence of any claim of error in the instructions as modified and given, and without the
record containing the instructions as asked, how can be predicate error in the modification
made under the rule announced?
25 Nev. 465, 472 (1900) State v. Maher
ification made under the rule announced? Conceding, for the argument only, that it was the
duty of the court to endorse upon each of these instructions as asked the part given and the
part refused, the appellant is not in a position to complain of the failure in this respect, as he
has not brought to this court the instructions as asked, showing such failure, and we cannot,
without having these instructions before us, say that the proper endorsements were not made.
In fact, the record does not show that the court either failed or refused to comply with the
statute in this respect.
ThirdIt is claimed that the court erred in giving instruction No. 18 asked by the
appellant, as modified. The instruction set out in the record as given is so mutilated by erasure
and interlineations that it would be only a guess for us to attempt to say to what extent it was
modified. As given it reads as follows: You are instructed that every material fact going to
the guilt should be fully established in the same manner and to the same extent as if the whole
issue rested upon it. You must be satisfied that each link in the chain of circumstances
essential to the conclusion sought to be established by the prosecution has been fully proved
beyond a reasonable doubt; otherwise, you must acquit. This instruction, it seems to us,
contains a fair statement of two propositions of law.
We believe it is well settled that every material fact going to the guilt of a person charged
with a crime should be fully established in the same manner and to the same extent as if the
whole issue rested upon it.
We are also of the opinion that, when the court charges the jury that, You must be
satisfied, it is equivalent to charging the jury that the facts embraced must be proved to their
satisfaction, and is sufficient without a repetition thereof.
The claim that the judgment should be reversed because the court imposed as a part of the
penalty at hard labor is without merit. The question was determined in Ex Parte Maher, 25
Nev. 422. Even if the claim possessed merit, we could, under the statute, in this proceeding
modify the judgment by striking therefrom the words at hard labor.
The judgment will be affirmed.
____________

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