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23 Nev.

1, 1 (1895)
RULES
OF THE
Supreme Court of the State of Nevada
Adopted September 1, 1879; amended November 15, 1895
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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.
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:
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.
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;
23 Nev. 1, 2 (1895) 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.
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.
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.
In all cases where an appeal has been perfected, and the statement settled (if there by 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.
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.
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 face and date of the filing of the undertaking on appeal; and the
same is in due form; the fact and time of the settlement of the statement, if there by one;
and also that the appellant has received a duly certified transcript, 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 have been demanded.
23 Nev. 1, 3 (1895) Rules of the Supreme Court
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 face and date of the filing of the undertaking on
appeal; and the same is in due form; the fact and time of the settlement of the statement, if
there by one; and also, that the appellant has received a duly certified transcript, 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 have been demanded.
RULE IV.
1. All transcripts of record in civil cases shall be printed on unruled white paper, ten
inches long by seven inches wide, with a margin, on the other edge, of not less than two
inches wide. The printed page, exclusive of any marginal note or reference, shall be seven
inches long and three and one-half inches wide. The folios, embracing ten inches 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.
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.
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.
4. No record which fail to conform to these rules shall be received or filed by the clerk of
the court.
23 Nev. 1, 4 (1895) Rules of the Supreme Court
RULE V.
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.
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.
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.
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.
23 Nev. 1, 5 (1895) Rules of the Supreme Court
tled thereto, they shall be taxed as claimed in his cost bill.
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.
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.
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.
RULE IX.
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.
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.
23 Nev. 1, 6 (1895) Rules of the Supreme Court
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.
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 of 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 point made.
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 this 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.
5. In criminal cases it is left optional with counsel either to file written, printed or
type-written points and authorities or briefs.
6. When the oral argument is concluded, the case shall be submitted for the decision of
the court.
7. The times herein provided for may be shortened or extended by stipulation of parties
or order of court, or a justice thereof.
23 Nev. 1, 7 (1895) Rules of the Supreme Court
extended by stipulation of parties or order of court, or a justice thereof.
RULE XII.
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.
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.
All opinions delivered by the court, after having been finally corrected, shall be recorded
by the clerk.
RULE XV.
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. 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 upon special order.
RULE XVI.
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 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.
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.
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.
23 Nev. 1, 8 (1895) Rules of the Supreme 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.
The writ of error shall be returnable within thirty days, unless otherwise specially directed.
RULE XXI.
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.
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.
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.
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 justices, the notice shall be five days.
RULE XXV.
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.
23 Nev. 1, 9 (1895) Rules of the Supreme Court
script, in the discretion of the party appealing, need not be printed; but if printed, all the rules
concerning the same shall still apply thereto.
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.
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.
RULE XXVI.
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 XXVII.
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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23 Nev. 10, 10 (1895) Rules of the District Court
RULES
OF THE
District Court of the State of Nevada
___________
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.
23 Nev. 10, 11 (1895) Rules of the District Court
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 question of law, or motions, as the case may be, may
be submitted on briefs of 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.
23 Nev. 10, 12 (1895) Rules of the District Court
briefs of 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.
23 Nev. 10, 13 (1895) Rules of the District Court
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.
23 Nev. 10, 14 (1895) Rules of the District Court
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, that 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.
23 Nev. 10, 15 (1895) Rules of the District Court
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 then shall 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.
23 Nev. 10, 16 (1895) Rules of the District Court
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 elizor, 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.
23 Nev. 10, 17 (1895) Rules of the District Court
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.
RULE XXV.
When a 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, elizor, or other person, he shall return the same with the cause
therefor and his proceedings thereunder indorsed 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.
23 Nev. 10, 18 (1895) Rules of the District Court
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.
23 Nev. 10, 19 (1895) Rules of the District Court
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 has 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.
23 Nev. 10, 20 (1895) Rules of the District Court
a certificate from the justice to the effect that he has certified the papers as required by said
section, but that the same has 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.
23 Nev. 10, 21 (1895) Rules of the District Court
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.
23 Nev. 10, 22 (1895) Rules of the District Court
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.
____________
23 Nev. 23, 23 (1895)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
OCTOBER TERM, 1895.
____________
23 Nev. 23, 23 (1895) Holmes v. Iowa Mining Co.
[No. 1435.]
GEORGE M. HOLMES, Respondent, v. IOWA MINING
COMPANY, A Corporation, Appellant.
AppealTranscriptOriginal Papers.Where, instead of a regular transcript, the original papers are sent up on
the appeal, under Stats. 1895, 58, they must be certified to be such originals, and to constitute, in whole or
in part, the record on appeal. Where there is no certificate to that effect, the appeal will, upon motion, be
dismissed. (Syllabus by Bigelow, C. J.)
Appeal from the First Judicial District Court, Storey county; Richard Rising, District
Judge:
Action by George M. Holmes against the Iowa Mining Company. From the judgment
rendered, defendant appeals. Heard on motion to dismiss. Granted.
The facts appear in the opinion.
Henry K. Mitchell, for Appellant.
F. M. Huffaker, for Respondent.
By the Court, Bigelow, C. J.:
The respondent moves to dismiss the appeal upon the ground that the record is not
certified or authenticated as required by law.
23 Nev. 23, 24 (1895) Holmes v. Iowa Mining Co.
required by law. It consists of the original papers as authorized by Stats. 1895, 58. That act
provides that when the appellant desires to have the original papers sent to the supreme court,
they shall be certified by the clerk of the district court, or by the respective parties or their
attorneys, to be such originals, or to constitute in whole or in part the record on appeal.
Several of the papers in the case are not certified in any manner either as copies or
originals, and none of them are certified to constitute in whole or in part, the record on
appeal. The motion must, therefore, be granted. This is a defect that doubtless could have
been remedied; but, although the motion was made more than two months ago, and thereby
the appellant's attention particularly called to the matter, no attempt has been made to do so.
Objection is also made to the manner in which a question upon a motion to set aside a
sheriff's sale is sought to be presented, and although unnecessary to notice the point upon this
appeal, it is not improper to call attention to the fact that the statute mentioned has in no wise
altered the method of presenting questions to the supreme court. Wherever a motion for new
trial, or a statement on appeal, was previously necessary to their proper presentation, it is still
necessary. The only difference is that, instead of having to present a transcript of the papers to
be used on the appeal, the originals may now be certified up.
The appeal is dismissed.
____________
23 Nev. 25, 25 (1895) State v. LaGrave
[No. 1445.]
THE STATE OF NEVADA, ex rel. GEORGE D. PYNE, Relator, v. CHARLES A.
LaGRAVE, State Controller, Respondent.
Appropriation by Legislature, What Necessary to ConstituteState Money.To constitute an appropriation of
state moneys by legislative act, there must be money placed in the fund applicable to the designated
purpose. An appropriation, in the sense of the constitution, means the setting apart a portion of the public
funds for a specific public purpose. No particular form of words is necessary, if the intention to appropriate
is plainly manifest.
Original Proceeding. Application by the State, on the relation of George D. Pyne, against
C. A. LaGrave, State Controller, requiring him to draw his warrant in favor of relator, as
secretary of Company B, First Regiment, Nevada National Guard, for rent of an armory for
the company. Writ denied.
The facts appear in the opinion.
J. Poujade, for Relator:
I. Section 11, Statutes of 1895, p. 109, is, if anything, an appropriation. It shows the
intention of the legislature, that money shall be paid, for a certain purpose, within a certain
amount, when, how, by whom and, as far as requisite, the fund from which it shall be paid.
(McCauley v. Brooks. 16 Cal. 28; City v. Dunn, 69 Cal. 73; Yolo County v. Dunn, 77 Cal.
133; Proll v. Dunn, 80 Cal. 220; Humbert v. Dunn, 84 Cal. 57; Irelan v. Colgan, 96 Cal. 415;
Gilbert v. Moody, 25 Pac. 1093; Reynolds v. Taylor, 43 Ala. 420; Carr v. State, 127 Ind.
204.)
II. An appropriation to pay limited amounts periodically may be constitutional and legal
without specially setting apart moneys. (Nicholas v. Controller, 4 Stew. & Porter (Ala.) 157;
Gilbert v. Moody, 25 Pac. 1093.)
Robert M. Beatty, Attorney-General, for Respondent.
By the Court, Belknap, J.:
A former application for mandamus was dismissed upon the ground of insufficiency of the
petition (22 Nev. 417).
The application has been renewed upon a corrected statement.
23 Nev. 25, 26 (1895) State v. LaGrave
The question now is whether an appropriation of the public funds has been made. It is
claimed that it is made by section 11 of the act of 1895, as follows:
Section 11. It shall be the duty of the board of county commissioners of any county in
which public arms, accouterments or military stores are now had, or shall hereafter be
received, for the use of any volunteer organized militia company, to provide a suitable and
safe armory for organized militia companies within said county. All claims for the expense of
procuring and maintaining armories shall be audited and approved by the board of military
auditors, and upon approval of such claims they shall be presented to the state controller, who
shall draw his warrant upon the state treasury for the amount so approved, and upon
presentation of said warrant the state treasurer shall pay the same out of the general fund.
Such expenses shall not exceed seventy-five dollars ($75) per month for any company, except
that each company regularly drilling with field pieces or machine guns, and using horses
therewith, may be allowed an additional sum not to exceed twelve and 50-100 dollars ($12
50) per month for each piece or gun. (Stat. 1895, 109.)
It is said that fixing the maximum amount to be paid each company and directing the
controller to draw his warrant for the amount and the treasurer to pay it constitutes an
appropriation.
These matters alone do not accomplish that end. To constitute an appropriation there must
be money placed in the fund applicable to the designated purpose. The word appropriate
means to allot, assign, set apart or apply to a particular use or purpose. An appropriation in
the sense of the constitution means the setting apart a portion of the public funds for a public
purpose. No particular form of words is necessary for the purpose, if the intention to
appropriate is plainly manifested.
In Ristine v. State, 20 Ind. 339, the court said: An appropriation of money to a specific
object would be an authority to the proper officer to pay the money, because the auditor is
authorized to draw his warrant upon an appropriation and the treasurer is authorized to pay
such amount if he has appropriated money in the treasury. And such an appropriation may be
prospective, that is, it may be made in one year of the revenues to accrue in another or
future years, the law being so framed as to address itself to such future revenues."
23 Nev. 25, 27 (1895) State v. LaGrave
appropriation may be prospective, that is, it may be made in one year of the revenues to
accrue in another or future years, the law being so framed as to address itself to such future
revenues.
In McCauley v. Brooks, 16 Cal. 28, the court said: To an appropriation within the
meaning of the constitution nothing more is requisite than a designation of the amount and
the fund out of which it shall be paid.
The authorities to which we are referred do not support the relator's contention. Except the
case of Reynolds v. Taylor, 43 Ala. 420, all are cases in which an appropriation of money had
been expressly made in terms. In Reynolds v. Taylor it was said that if the salary of a public
officer is fixed and the time of payment prescribed by law, no special annual appropriation is
necessary.
Under existing facts it is improbable that the provisions of the statute were intended as an
appropriation, because the number of military companies that could have received its benefits
was indefinite and uncertain. These facts are: The law permits one company in each of the
fourteen counties of the state, and excepts from this provision companies existing at the time
of the passage of the act. (Stats. 1893, 96.) We understand that at present there are eight
companies in the state, but that number may be increased up to the maximum at any time.
If an appropriation had been intended the act would conflict with the provisions of the law
of 1866 defining the duties of state controller. Among these duties he is forbidden to draw
any warrant on the treasury except there be an unexhausted specific appropriation to meet the
same. And it is made his duty, among other things, to keep an account of all warrants drawn
on the treasury, and a separate account under the head of each specific appropriation in such
form and manner as at all times to show the unexpended balance of each appropriation.
(Sections 1812-31, Gen. Stats.)
The foregoing requirements cannot be observed if the act of 1895 be construed as making
an appropriation because there is no specific appropriation upon which a warrant could be
drawn; and also the accounts cannot show the unexpended balance as required.
23 Nev. 25, 28 (1895) State v. LaGrave
be drawn; and also the accounts cannot show the unexpended balance as required.
By a specific appropriation we understand an act by which a named sum of money has
been set apart in the treasury and devoted to the payment of a particular claim or demand. * *
* The fund upon which a warrant must be drawn must be one the amount of which is
designated by law, and therefore capable of definitive exhaustiona fund in which an
ascertained sum of money was originally placed, and a portion of that sum being drawn an
unexhausted balance remains, which balance cannot thereafter be increased except by further
legislative appropriation. (Stratton v. Green, 45 Cal. 149.)
The law of 1866 was intended to prescribe a uniform rule for the controller. That of 1895
to provide a method by which armory rent may be obtained when an appropriation shall have
been made. Thus construed there is no repugnancy between the two acts and both may well
subsist together.
Repeals by implication are not favored, said Judge Field, speaking for the court, in
Crosby v. Patch, 18 Cal. 438. Such is the universal doctrine of the authorities. Whenever
two acts,' says the supreme court of Pennsylvania, can be made to stand together, it is the
duty of a judge to give both of them full effect. Even when they are seemingly repugnant, they
must, if possible, have such a construction that one may not be a repeal of the other, unless
the latter one contain negative words, or the intention to repeal is made manifest by some
intelligible form of expression.' (Brown v. County Commissioners, 21 Pa. St. 43.) The
invariable rule of construction, says the supreme court of New York, in respect to the
repealing of statutes by implication is, that the earliest act remains in force, unless the two are
manifestly inconsistent with and repugnant to each other; or unless in the latest act express
notice is taken of the former, plainly indicating an intention to abrogate it. As laws are
presumed to be passed with deliberation, and with full knowledge of existing ones on the
same subject, it is but reasonable to conclude that the legislature, in passing a statute did not
intend to interfere with or abrogate any former law relating to the same matter, unless the
repugnancy between the two is irreconcilable."
23 Nev. 25, 29 (1895) State v. LaGrave
former law relating to the same matter, unless the repugnancy between the two is
irreconcilable. (Bowen v. Lease, 5 Hill, 226.)
It is a rule,' says Sedgwick, that a general statute without negative words will not repeal
the particular provisions of a former one, unless the two acts are irreconcilably inconsistent.
The reason and philosophy of the rule, says the author, is, that when the mind of the legislator
has been turned to the details of a subject, and he has acted upon it, a subsequent statute in
general terms, or treating the subject in a general manner, and not expressly contradicting the
original act, shall not be considered as intended to affect the more particular or positive
previous provisions, unless it is absolutely necessary to give the latter act such a construction,
in order that its words shall have any meaning at all. So where an act of parliament had
authorized individuals to inclose and embank portions of the soil under the river Thames, and
had declared that such land should be free from all taxes and assessments whatsoever.' The
land tax act, subsequently passed, by general words embraced all the land in the kingdom; the
question came before the king's bench, whether the land mentioned in the former act had been
legally taxed, and it was held that the tax was illegal.
Mandamus denied.
____________
23 Nev. 29, 29 (1895) Ronnow v. Delmue
[No. 1439.]
C. P. RONNOW, CHARLES MATTHEWS, Sr., WILLIAM MATHEWS and PHILLIP
MATTHEWS, Respondents, v. JOSEPH DELMUE and MARCELLO DELMUE,
Appellants.
PracticeComplaintVerified After FilingAllegations Refer to Time of Commencement of Action.In an
action for the diversion of water, the complaint, filed April 11, 1894, was sworn to November 17, 1893,
and it was objected that it did not, for this reason, state a cause of action existing at the time of the
commencement of the action. Held, that the allegations of the complaint should be construed as referring to
the time of the commencement of the action, and that it was sufficient.
DecreeSufficiency Of.A decree is not void because it refers to the complaint for a description of the
property affected by it; does not contain the stipulation upon which it was based; does not strictly conform
to the stipulation, and was not entered against all the parties defendant in the action.
23 Nev. 29, 30 (1895) Ronnow v. Delmue
Water SuitWho May Unite In.Although parties who have separate interests in the water of a stream cannot
unite in an action for damages for its past diversion, they may unite in an action to restrain future
diversions.
FindingWhen Presumed in Support of Decree.Where there is no exception to the want of a finding, or
because the finding upon some issue is defective, a finding must be presumed in support of the decree, and
where the evidence upon the point is conflicting, the appellate court will not interfere.
Water SuitDecree Enjoining Wrongful Diversion.Where the title to water has been obtained by prior
appropriation, a decree enjoining one from wrongfully diverting it is not erroneous merely because the
party so enjoined owns the land through which the water naturally flows. (Syllabus by Bigelow, C. J.)
Appeal from the District Court of the State of Nevada, Lincoln county; A. E. Cheney,
District Judge:
Action by C. P. Ronnow, et al., against Joseph Delmue, et al. Judgment for complainants,
and defendants appeal. Affirmed.
George S. Sawyer, for Appellants:
I. The judgment and decree is not supported by the complaint. The complaint states no
cause of action, or any facts as existing at the time of the filing of the complaint, but as they
existed some five months previous. (Fairchild v. King, 36 Pac. Rep. 649.)
II. The court erred in admitting in evidence the judgment and judgment roll in the case of
Barron et al. v. Delmue et al. First: It is not a judgment; it contains no decision of any court,
and nothing can be determined from the judgment itself. (Gen. Stats. 3225; Perkins v. Sierra
U. S. M. Co., 10 Nev. 413.) Second: The stipulation on which it is based is not contained in it.
(Emeric v. Alvarado, 64 Cal. 621.) Third: It does not conform to the alleged stipulation.
Fourth: It does not determine the rights of all the parties. The rights of B. G. Wells, one of the
defendants, are entirely ignored. For aught that appears, the defendant, Wells, may have been
entitled to all of the water as against the plaintiffs and his co-defendant, Delmue. (Golding v.
Decker, 32 Pac. Rep. 835; Bissell v. Cushman, 5 Col. 76; 12 Am. & Eng. Ency., 77, and
notes.)
III. The decision and decree are against law and equity.
23 Nev. 29, 31 (1895) Ronnow v. Delmue
There are absolutely no grounds for an injunction shown. The only trespass which appears is
on the part of plaintiffs in going upon the lands of defendants, to which they had absolute
title, and interfering with ditches they had constructed and with which plaintiff had no
concern. It would be a peculiar stretch of the arm of equity to enjoin a person from preventing
a trespass upon his own land.
T. J. Osborne and Henry Rives, for Respondents:
I. All of the plaintiffs are entitled to join and seek and obtain the benefit of the injunction
sought, for any one of the plaintiffs might maintain the action for all of the remainder of
them. The case of Schultz v. Winter et al. is not in point. Our statute expressly permits the
joining of an action for waste, or for damages committed to real property, with one for the
recovery of the possession thereof. Actions respecting easements are treated in the same
manner as those respecting real estate. It was concluded that they would be entitled to join in
the action to obtain an injunction against the defendants but that they would be put to separate
actions for the recovery of their damages.
II. The contention: The judgment and decree is not supported by the complaint and
The complaint states no cause for action, or any facts as existing at the time of the filing of
the complaint, but as they existed some five months previous, is not well taken. The rule laid
down in Fairchild v. King, 36 Pac. Rep. 649, refers exclusively to money demands and the
rule there laid down proceeds upon the theory that a person pays his debts at or about the time
they are stated to be due. In respect to the alleged ownership of real property, and easements
growing out of the same, the rule is that the court will presume the ownership to have
remained as it existed at the date of the verification and until the contrary is proven.
By the Court, Bigelow, C. J.:
Action to recover damages for the diversion of water to which the plaintiffs claim title by
virtue of prior appropriation, and for an injunction to restrain the future diversion thereof.
23 Nev. 29, 32 (1895) Ronnow v. Delmue
The complaint was filed April 11, 1894, but it was verified November 17, 1893, and for
this reason it is claimed that it does not state a cause of action existing at the time of the
commencement of the action. It would seem, however, that wherever the complaint alleges
the existence of a fact in the present tense, it should be construed as referring to the time of
the commencement of the action, and not to the time when it was sworn to. It was not
necessary that it should be verified at all, and if it had not been, that certainly would be the
proper construction to be put upon such an allegation. If the fact that it was verified so long
beforehand has any effect whatever it should be to nullify the verification, and leave the
complaint the same as though it had never been verified. Such a verification might be stricken
out on motion, or if treated as a nullity, the only consequences that would follow would be
that defendants would not be required to make specific denials, nor to verify their answer.
2. The complaint alleges the plaintiffs' prior appropriation of the water, which does not
appear to have been seriously questioned upon the trial except as to four acres, and then
pleads, by way of estoppel, the recovery by the plaintiffs' predecessors in interest, against the
defendants' predecessors in interest, of a decree for the possession of the water. Upon the trial
this decree was admitted in evidence, and several assignments of error are predicated upon
this ruling. The decree was rendered upon stipulation, and is defective in several respects, but
we do not think it is void. It appears from it that the right, title and right to the possession of
all the water in the stream, except enough to irrigate four acres, was decreed to be in the
plaintiffs in the action, and although it contains no description of the water so awarded, it
refers to the complaint for that purpose, where the description is ample. While this is bad
practice, for a decree should be complete in itself without reference to other documents or
records, such a decree is not void. (1 Freeman, Judg., sec. 50c; Kelly v. McKibbon, 54 Cal.
192.)
It is no more necessary that the decree should contain the stipulation upon which it was
based than that it should contain the pleadings or findings. It was clearly intended to conform
to the stipulation, and if it does not it is an error to be corrected in that case, and does not
render the decree void.
23 Nev. 29, 33 (1895) Ronnow v. Delmue
be corrected in that case, and does not render the decree void. Nor is it any objection that it
was rendered against but one of the defendants in the action. The action may have been
dismissed as to the others, but whether it was or not, it is not void as to the one against whom
it was entered. (Gen. Stats. 3170, 3171.)
3. Upon the trial the claim for damages was dismissed and the action continued simply
upon the equitable side for an injunction. The defendants then moved to dismiss the action
entirely upon the ground that the interests of the parties were not in commonthat they
owned separate interests. This motion was correctly overruled. The question of misjoinder
was not raised by either demurrer or answer, and consequently was waived. (Gen. Stats. 3062,
3066, 3067.) But really, there was no misjoinder. The plaintiffs owned separate tracts of land,
but they were joint owners of the ditch through which the water was diverted, and of the
water itself. Even had they owned separate ditches and separate water rights, though they
could not maintain a joint action for damages, they could maintain such an action for an
injunction against future diversion or obstruction of the stream. (Bliss Code Plead., sec. 76;
Foreman v. Boyle, 88 Cal. 290.)
4. As the decree was for the plaintiffs, we must presume that all the material issues upon
which there were no findings or upon which the findings were defective as being merely
conclusions of law, were found in the plaintiffs' favor, and consequently, there being no
exception to the findings upon these points, nor request for farther findings, that the court
found that the acts of the defendants did diminish the amount of water flowing to the
plaintiffs, and also that the defendants' use of the water had not been open, peaceable,
uninterrupted, under claim of right, etc., for the time necessary to create a prescriptive title in
them. The most that can be said in defendants' favor upon these points is that the evidence
was conflicting, that of the plaintiffs tending to prove that there had been no such user, and
that their acts had diminished the quantity of the water, and under these circumstances the
appellate court cannot disturb the findings, either express or implied, of the trial court.
23 Nev. 29, 34 (1895) Ronnow v. Delmue
5. If the plaintiffs have a right to the uninterrupted flow of the water except as to enough
to irrigate four acres of land, the defendants have no more right to interfere with it upon their
own land, except to take that quantity, than they have upon any other land, and the decree
enjoining them from so doing is unobjectionable. If the law were otherwise the right to the
use of water would rest upon a very frail foundation.
No prejudicial errors appearing, the judgment is affirmed.
____________
23 Nev. 34, 34 (1895) Laird v. Morris
[No. 1438.]
A. LAIRD, Appellant, v. MICHAEL MORRIS,
Respondent.
PracticeJudgment of Non-Suit No Bar to Another Action.Section 3173, Gen. Stats. (Civil Practice Act, sec.
151), does not change the inflexible rule that a judgment of non-suit is not a judgment on the merits, and
such judgment of non-suit is no bar to another suit upon the same cause of action
IdemNon-SuitStatute Construed.The only purpose of the statute (Civil Practice Act, sec. 151) was to
determine in what cases non-suits or dismissals should be entered. The statute is in affirmance of the
common law, and, though by consolidation of sections it is subject to criticism for uncertainty, the
presumption is that no change was intended in the law.
Appeal from the District Court of the State of Nevada, Eureka county; A. L. Fitzgerald,
District Judge:
Action by A. Laird against Michael Morris on an account stated and on an assigned
account for services rendered. Judgment for defendant. Plaintiff appeals. Reversed.
The facts sufficiently appear in the opinion.
Henry Rives, for Appellant:
The only question raised on this appeal is as to whether the court erred in deciding that the
dismissal of the first action amounted to a trial on the merits. All of the allegations of the
complaint in that action were fully denied by the answer, and thus distinct issues were
presented to the court for determination. Before the court could determine these issues, some
kind of proof must have been presented.
In this case, however, there is no pretense that any oral or documentary evidence whatever
in support of, or against, the issues involved were introduced.
23 Nev. 34, 35 (1895) Laird v. Morris
the issues involved were introduced. The dismissal of that action was simply a non-suit
granted by the court at the request of the defendant, and, while it co-operated as a final
judgment and determination of that case, it was not under the circumstances a judgment
upon the merits. It simply operated as putting an end to that particular case, and in no way
operated as a bar to another suit on the same cause of action. (1 Nev. 495; Storey's Eq. Pl., 9th
ed., sec. 793; 42 Cal. 644; 21 Am. & Eng. Ency. of Law, 266, et seq. and note 1; 5 Id. 496; 16
Id. 747-48 and note 1; 18 Id. 730, note 2 and cases cited; Freeman on Judg., sec. 261; 1
Greenleaf on Ev., sec. 528; 36 Ill. 278; 88 Ind. 155; 34 Barber, 421; 2 Smith's Leading Cases,
887; 12 Ark. 369; 49 Iowa, 528; 113 Mass. 231; 108 Mass. 309; 7 Wall. U. S. 107; 117 Ill.
471; 101 U. S. 688.)
Thomas Wren and Peter Breen, for Respondent:
I. To understand the legal bearings of the dismissal of the first action it will be necessary
to give a brief history of these sections of our practice act providing for dismissals. The
sections of our act upon this subject were originally adopted bodily, word for word, from the
sections upon the same subject in the California practice act as they stood in 1861-2 and later,
Stats. of Cal., Practice Act, secs. 148-9, Stats. of Nev., 1861, p. 338, secs. 148-9. A number
of decisions were rendered by the supreme court of California upon these sections of the
California practice act, and in this state, in the case of Sherman v. Dilby, 3 Nev., a decision
was rendered by the supreme court of this state that, as the statute then stood, is a stronger
case in favor of appellant than the one cited by counsel for appellant in 1 Nev. It will be
observed that there were two sections of the statute of this state in regard to dismissals for a
number of years. In 1869 our present practice act was amended and materially changed in
many respects, and amongst others the two sections heretofore existing were repealed and the
provisions in regard to the dismissal of actions were embodied in one section, and the effect
of a dismissal, where a plaintiff fails to appear at the time set for the trial of an action, was
radically changed. (Gen. Stats. Nev., 3173.)
23 Nev. 34, 36 (1895) Laird v. Morris
By this section as it now stands, the third subdivision of the same provides that an action
may be dismissed by the court when the plaintiff fails to appear on the trial and the
defendant appears and asks for the dismissal. * * * The dismissal mentioned in the first two
subdivisions shall be made by an entry on the clerk's register. Judgment may thereupon be
entered accordingly. In every other case the judgment shall be rendered on the merits.
II. What is obviously the purpose of the change in the statute? It could have no possible
object except to compel diligence on the part of plaintiffs in the prosecution of suits. It is to
prevent defendants from being harassed with a multude [multitude] of suits upon the same
cause of action.
By the Court, Belknap, J.:
Plaintiff sued defendant as surviving partner upon two counts: First, upon an account
stated; second, upon an assigned account for services rendered to the partnership.
Respondent, in his answer, among other things, plead in bar a former judgment between the
same parties and for the same cause of action.
The cause was tried by the court. It was shown by the judgment that neither the plaintiff
nor his counsel was present at the former trial and that thereupon the defendant asked for a
dismissal of the action. A judgment of dismissal was accordingly given and costs taxed to the
plaintiff. Upon this evidence the court found as a fact that the judgment was upon the merits,
and as a conclusion of law it was found that it constituted a bar to the plaintiff's recovery in
the present action.
The question upon the appeal is whether the ruling was correct.
The statute governing the subject is as follows:
3173. Sec. 151. An action may be dismissed, or a judgment of non-suit entered in the
following cases:
FirstBy the plaintiff himself at any time before trial, upon the payment of costs, if a
counter claim has not been made. If a provisional remedy has been allowed, the undertaking
shall thereupon be delivered by the clerk to the defendant, who may have his action thereon.
23 Nev. 34, 37 (1895) Laird v. Morris
SecondBy either party upon the written consent of the other.
ThirdBy the court when the plaintiff fails to appear on the trial, and defendant appears
and asks for the dismissal.
FourthBy the court when upon trial, and before the final submission of the case the
plaintiff abandons it.
FifthBy the court upon motion of the defendant when upon the trial the plaintiff fails to
prove a sufficient case for the jury.
The dismissal mentioned in the first two subdivisions shall be made by an entry in the
clerk's register. Judgment may thereupon be entered accordingly. In every other case the
judgment shall be rendered on the merits.
In support of the ruling, it is said, that the practice act as originally adopted in 1861 (Stats.
1861, p. 338), was readopted in 1869 (Stats. 1869, p. 218), and upon its readoption was
materially changed. The two sections upon the subject of dismissal and judgments of non-suit
in the act of 1861 were consolidated and the effect of the change was, it is claimed, that all
cases falling under the third, fourth and fifth subdivisions of the statute became judgments on
the merits and not of dismissal or non-suit as theretofore; that the mention of the first two
subdivisions in connection with the concluding sentence of the section: In every other case
the judgment shall be rendered on the merits, excludes, by implication, all of the remaining
cases provided for.
A non-suit is the result of an abrupt termination of an action at law. It is the name of a
judgment given against the plaintiff when he is unable to prove his case or when he refuses or
neglects to proceed with the trial of a cause after it has been put on issue, without determining
such issue. Its origin can be easily traced to a very early period in the history of the common
law. (16 Am. and Eng. Ency. of Law, 721.)
The effect of a non-suit is to defeat the action, and give costs to the defendant, but the
plaintiff may commence a new action for the same cause. (3 Bl. Com. 377.)
It is a settled and inflexible rule that a judgment of non-suit is not a judgment on the
merits, and therefore is no bar to another suit upon the same cause of action."
23 Nev. 34, 38 (1895) Laird v. Morris
to another suit upon the same cause of action. (Black on Judgments, sec. 699.)
The legislature is presumed to have used these terms in their accepted meaning.
The only purpose of the statute was to determine in what cases non-suits or dismissals
should be entered; and in construing it, this purpose should be kept in view. Five separate and
independent causes have been enumerated, and it is applicable to all cases to which these
conditions apply. Otherwise, only cases provided for in the first and second subdivisions
would be embraced within its provisions, and those in the third, fourth and fifth subdivisions
would be excluded. Such construction would do violence to the language of the statute and
defeat the manifest intent of the legislature. It would subordinate the principal purpose of the
statute to one of lesser importance.
The consolidation of the two sections into one worked no change in the purpose of the
law. The elder statute was free from ambiguity. The consolidation subjects it to the criticism
which has been urged. The statute is an affirmance of the common law. The presumption is
that no change was intended in that law. But if such were the intention, it would have been
made free from uncertainty.
The statute should be read as including all of the five classes of cases for which it
provides, and being so read its meaning is clear.
In Baker v. Baker, 13 Cal. 87, the court said: The statute of this state, being in affirmance
of the common law, is to be construed as was the rule of that law. This is a received
construction in such cases. Thus, in Miles v. Williams, 1 Peere Wms. 252, the court said: The
best rule of construing acts of parliament is by the common law, and by the course which that
observed in like cases of its own before the act.' And, in Arthur v. Bokenman, 11 Mod. 150,
the common pleas said: The general rule in exposition of all acts of parliament is this: That
in all doubtful matters, and when the expression is in general terms, they are to receive such a
construction as may be agreeable to the rules of the common law in cases of that nature; for
statutes are not presumed to make any alterations in the common law, further or otherwise
than the act does expressly declare; therefore, in all general matters, the law presumes
the act did not intend to make any alteration; for, if the parliament had had that design,
they would have expressed it in the act.'"
23 Nev. 34, 39 (1895) Laird v. Morris
wise than the act does expressly declare; therefore, in all general matters, the law presumes
the act did not intend to make any alteration; for, if the parliament had had that design, they
would have expressed it in the act.'
Judgment is reversed and cause remanded.
____________
23 Nev. 39, 39 (1895) Wright v. Carson Water Co.
[No. 1420.]
JOHN M. WRIGHT and S. C. WRIGHT, Appellants, v. THE CARSON WATER
COMPANY, A Corporation, Respondent.
ON REHEARING.
Second AppealFacts Not Changed, Court Bound by Former Decision.Where, on the first trial of an action
against a corporation on a note, there was evidence that its execution was known to the majority of trustees
individually, and it was held on appeal that knowledge communicated to trustees as individuals, and not in
their capacity as a board, could not form the basis of an implied contract or of a ratification, the absence on
second trial of evidence of a payment of the note which was adduced on first trial, and evidence on second
trial that the execution of the note was known to the remaining member of the board individually, does not
set up a new state of facts, which would avoid the rule that the decision on first appeal becomes the law of
the case so far as applicable to facts developed on second trial. (Bigelow, C. J., dissenting.)
Appeal from the District Court of the State of Nevada, Ormsby county; Richard Rising,
District Judge.
For former opinion, see 22 Nev. 304.
The facts sufficiently appear in the opinion.
Rives & Judge, and Wm. Woodburn, for Appellants.
Torreyson & Summerfield, for Respondent:
I. It is not a question in this appeal as to whether or not the decision of a majority of the
court in the former appeal (Edwards v. Carson Water Co., 21 Nev. 469) is good law, or as to
whether or not this court in subsequent cases involving the same legal questions and
principles will be bound by it, but we claim and insist that this court is bound by the decision
of the former court involving the same legal question and principle and that the same question
cannot now be litigated or decided in a different way than on the former appeal, and this in
res adjudicata.
23 Nev. 39, 40 (1895) Wright v. Carson Water Co.
II. A prior decision by the appellate court upon a point distinctly raised is more than
authority in the same case, being a final adjudication from which the court itself cannot
depart. (Chicago R. R. Co. v. Hull, 24 Neb. 730; Holley v. Holley, 96 N. C. 230; Warden v.
McKinnon, 99 N. C. 254; Phelan v. City and Co. San Fran., 20 Cal. 39; Heffner v. Bromnell,
75 Ia. 341; Adams Co. v. Burlington, 55 Ia. 342; Gould v. Sternberg, 128 Ill. 510, 15 Am.
Rep. 138; Fontenburg v. Fraser, 5 Ark. 200; Gwinn v. Hamilton, 75 Cal. 266; Applegate v.
Downe, 17 Or. 299; Stewart v. Preston, 80 Va. 625; Stewart v. Stebbins, 30 Miss. 66; Chand.
on Res Adjudicata, sec. 22, p. 31.)
III. The conclusiveness of a decision or decree of a court of last resort is not vitiated by
the fact that it is one of affirmance by a divided court. It forever settles the question decided
as to that case. (Durant v. Essex Co., 7 Wall. 107; People v. Circuit Judge, 37 Mich. 377;
Herman on Estoppel, vol. 1, sec. 116.)
By the Court, Bonnifield, J.:
A petition for rehearing was filed by the appellants in which it is claimed that they
introduced on the second trial testimony pertinent to the issue raised by the pleadings,
showing an entirely different state of facts from that shown at the first trial, by which they
contended that the case is taken out of the rule of res judicata, and they ask to be heard on the
matter in argument before the court.
The rehearing was granted. We held before, and still hold, that the legal questions and
principles which arose and were decided on the former appeal, whether they were correctly
decided or not, have become the law of this case so far as they are applicable to the facts
developed on the second trial. We so held upon the overwhelming weight of authorities then
cited. (39 Pac. Rep. 872.)
We also held that, substantially, the same state of facts was presented on the first trial and
first appeal as on the second, upon the vital question at issue by the pleadings and that this
court on the former appeal had decided against the validity of the note on which this action
was brought and had decided that it does not bind the respondent. We still so hold.
23 Nev. 39, 41 (1895) Wright v. Carson Water Co.
still so hold. It is claimed by counsel for appellant that the record discloses an entirely
different state of facts from that disclosed on the first appeal in two respects, to wit:
1. That on the first appeal the record contained evidence tending to show payment of said
note, but the record on this appeal does not contain such evidence.
2. That on the first appeal the record contained a denial of H. M. Yerington, one of the
trustees of the respondent, of all knowledge or information on his part of the existence of the
note, or indebtedness to Wright, prior to the time he became president of the company in
1889, and that the present record shows that he had such knowledge or information in 1888.
But we regard the alleged new state of facts as immaterial under the decision and ruling of
this court on the former appeal, and that the same does not take the case out of the rule of res
judicata. Let us inquire, then, what legal propositions or questions were then decided that are
decisive of this case on this appeal notwithstanding said alleged new state of facts. It was
conceded that there was no order or resolution of the board of trustees of the defendant
authorizing the execution of the note in suit and that it was not the note of the company and
that the note did not bind the company by reason of any express authority given the company
to execute it.
Then the question was, did it become the note or become binding on the company by
reason of its ratification? This question was argued and considered in all its phases by counsel
of the respective parties, and by the majority and minority of the court, as appears by their
respective opinions.
In concluding the argument and the opinion of the majority of the court on the question of
ratification, the court said: As we understand the law to be it is this: That before an
individual or corporation can be held to have ratified the unauthorized acts of his or its
agents, every detail of the transaction must have been made known to the principal. If, after
obtaining such knowledge, the principal fails to act, long and continued silence will be
deemed an approval of the act, and such ratification relates back and is equivalent to a prior
authority to make the contract.
23 Nev. 39, 42 (1895) Wright v. Carson Water Co.
As to the correctness of the rule as above stated there was no disagreement among the
members of the court. But as to whether the knowledge and acquiescence of the trustees
individually and not as a board would bind their principal, the corporation, there is a conflict
between the majority and minority opinions of the court given on the former appeal. In the
majority opinion the language used in the case of Yellow Jacket Company v. Stevenson, 5
Nev. 224, is quoted and adopted by the court as applicable to this case, to wit: "It cannot, we
think, be maintained that the knowledge obtained unofficially by three of the trustees, that
Stevenson was engaged in extracting ore from the mine is sufficient to charge the company
with such knowledge, as any number of trustees acting individually, and not as a board,
cannot act for the corporation, so any information obtained by individual trustees and not
communicated to the board, should not, it would seem, become the foundation of a contract
binding upon the company. The trustees represent the corporation only when assembled
together and acting as a board. Such being the law, how can it be claimed that information
communicated to them individually, not to the board, can be made the foundation of an
implied contract on the part of the corporation?"
As further authority on the same point and to strengthen its position on the question last
above named, the court cited the case of Hillyer v. Overman, 6 Nev. 55, in which case it is
held that: "The trustees can only bind the corporation, under our law, when they are together
as a board, acting as such."
It is manifest from the above quotations from the opinion of the court, that it intended to
hold and did hold in effect, that no knowledge derived by the trustees, and no information
communicated to them individually, but not to them in their capacity as a board, would be
sufficient to charge their principal, the corporation, with such knowledge or information
whereby, in law, the corporation would be deemed to have ratified the unauthorized acts of its
agents by its acquiescence, or its silence, or its delay, in repudiating such acts. That such was
the intent and the decision is apparent from the plain reading of the opinion above given
itself.
23 Nev. 39, 43 (1895) Wright v. Carson Water Co.
And it seems that it was so understood at the time by all the members of the court. The
correctness of the decision, however was denied by the dissenting member of the court. In the
dissenting opinion in the case on the above rulings of the court it is said: As to the case of
Yellow Jacket Mining Company v. Stevenson, 5 Nev. 224, while it was perhaps upon the
whole, correctly decided, that part of the language quoted by my associates from pages 231,
232 of the opinion is not law, nor was it so decided to be in that case. It is dictum, and the
opinion shows that the judge writing it had doubts of its correctness, for he immediately adds
(page 232): But, however this may be, it cannot possibly be maintained that a corporation
can be charged with acting upon or recognizing a fact which is known only to a minority of
its trustees.'
This is the real ground of the decisionthat is, that it had not been shown that a majority
of the board knew of the transaction, and if not, the decision is doubtless correct upon that
point, because, as the minority could not by formal resolution either authorize the act in the
first place or ratify it afterwards, knowledge and acquiescence upon their part could not have
that effect; but in the case at bar it is shown that a majority of the board knew all about the
whole situation, and that the company, by reason of its silence, acquiescence and laches of
both the board and stockholders, is estopped to deny its liability. Corporations should be held
to the same principles of honesty and fair dealing that individuals are. But as they can only act
through their agents, if acquiescence and laches upon the part of the agent will not constitute
ratification and estoppel by the corporation where it would in the case of individuals, then
they are exempt from the rules applying to others. That a corporation may ratify or estop itself
by the knowledge and acquiescence of its representatives in unauthorized acts, without the
knowledge being received or acted upon at a formal meeting of the board or stockholders.
See, in addition to the cases already cited, Scott v. Railroad Co., 86 N. Y. 200, and others.
It will be seen from the examination of the majority opinion itself that the decision on the
former appeal as to knowledge and ratification was and is that the knowledge derived by or
the information communicated to any number of trustees as individuals, and not to them
in their official capacity as a board of trustees, cannot be the foundation of an implied
contract on the part of the corporation or of the ratification by it of the unauthorized acts
of its agents.
23 Nev. 39, 44 (1895) Wright v. Carson Water Co.
derived by or the information communicated to any number of trustees as individuals, and not
to them in their official capacity as a board of trustees, cannot be the foundation of an implied
contract on the part of the corporation or of the ratification by it of the unauthorized acts of its
agents. That such is the decision is clear not only from the said opinion, but from the minority
opinion in the case. Hence the new alleged state of facts does not avoid the rule of res
judicata, for it relates to payment of the note and to knowledge received by and information
communicated to a trustee individually and not to the board.
The court also said in the same opinion that "the evidence in this case is conflicting and
obscure in many respects," but it is nowhere intimated that the evidence is conflicting in
relation to the fact that the board of trustees had no knowledge or information as a board of
the several matters communicated to the trustees individually. If it had found that such
conflict did exist in this respect it would have been unnecessary to have gone further.
We are of opinion that the judgment and order appealed from must be affirmed. It is so
ordered.
Belknap, J.: I concur.
Bigelow, C. J., dissenting:
Action upon a promissory note for $2,000 and interest. The answer denies its execution or
delivery. Upon this issue the plaintiff upon the trial before a jury proved that the note was
executed by the president and secretary of the defendant and delivered on the day it bears
date, in 1876; that in 1875 the plaintiff's testator had loaned the defendant $2,000, taking a
note therefor, which was renewed in 1879 by a note made in the same manner as the present
one, which was in turn renewed by the note in suit; that upon the execution of the new notes,
the former notes had been surrendered to the defendant; that the defendant had paid interest
on the notes up to 1889; that they appeared all that time as an outstanding indebtedness on the
company's books, and had been included as such in all reports by the secretary to the board of
trustees; that the president, who was also the general manager of defendant, and the secretary,
constituted a majority of the board, and, of course, knew of the execution of the notes, and
the notes had been several times particularly called to the attention of the third trustee;
that no claim had ever been made by any one that the company was not liable upon them,
or that they were not the company's notes, until 1SS9.
23 Nev. 39, 45 (1895) Wright v. Carson Water Co.
board, and, of course, knew of the execution of the notes, and the notes had been several
times particularly called to the attention of the third trustee; that no claim had ever been made
by any one that the company was not liable upon them, or that they were not the company's
notes, until 1889. Upon these, and similar facts the plaintiffs claimed, although they had not
proven any formal order of the board authorizing the execution of the note, that the defendant
was liable upon it, and was estopped from denying such liability.
Upon this evidence, which, of course, must at that time be taken as absolutely true, the
note was offered in evidence, but upon objection was excluded by the court on the ground
that it was not shown to be the defendant's note. This ruling was a virtual non-suit, and
necessarily resulted in a verdict for the defendant.
If the officers executing the note had implied authority to do so, or if its execution had
been ratified by the board, either expressly or by acquiescence and silence, the defendant was
as much bound by it as if authorized in the first instance. (Cook v. Tullis, 18 Wall. 332;
Morawetz Corp., sec. 618.) Ratification is a question of fact, to be decided by a jury (George
v. Nev. Cent. R. R. Co., 22 Nev. 228), and this ruling, whereby the court, in effect, decided
there was no evidence even tending to prove defendant's liability, is so clearly erroneous that
no one will attempt to defend it. The bare fact that it was signed by the defendant's president
and managing agent, and the secretary, made a prima facie case, at least, that entitled the
plaintiffs to go to the jury on the question. (Crowley v. Mining Company, 55 Cal. 273.) Upon
the ground of ratification such evidence would seem to make, not only a prima facie case, but
one that would, if the evidence were not contradicted, be absolutely conclusive.
But without contesting, or attempting to contest this fatal error, the majority of the court
are of the opinion that upon the former appeal of the case this court decided something that
justifies the ruling; that the decision so made, whether right or wrong, has become the law of
the case, and as such, binding upon both the trial court and this court. In this conclusion I
cannot concur.
23 Nev. 39, 46 (1895) Wright v. Carson Water Co.
In my judgment that decision is not decisive of the present appeal, for the reasons:
1. The questions presented upon the two appeals are entirely different.
2. The question now involved was not attempted to be then decided.
3. As it was not involved in that appeal, admitting that the court attempted to decide it, it
could not do so, and what is said concerning it is merely obiter.
I have already stated the question now involved, and I will now try to state what was then
presented to the court. Upon that appeal it appeared that the trial court had made findings in
favor of the plaintiffs, on which judgment had been entered against defendant for the amount
due upon the note. Then, upon the defendant's motion, made upon the ground that the
evidence did not support the findings, it had granted a new trial. From this order the plaintiffs
appealed. The one question presented upon that appeal was whether this order was erroneous.
When is an order granting a new trial on the ground that the findings are not supported by the
evidence erroneous? In Treadway v. Wilder, 9 Nev. 70, the rule is stated thus: The court
below ought not to grant a new trial when there is conflicting evidence, except the weight of
evidence clearly preponderates against the verdict. But when the court grants a new trial, the
appellate court will not interfere unless the weight of evidence clearly preponderates against
the ruling of the court.
In Hayne on New Trial, sec. 288, after a thorough summing up of the decisions, the author
says: Perhaps as good a statement of the rule as can be given (so far as motions for new trial
are concerned) is that a motion for new trial, on the ground of the insufficiency of the
evidence, is addressed to the discretion of the court below, and the ruling thereupon will not
be disturbed except for an abuse of discretion.
The particular finding which it was claimed on that appeal was not supported by the
evidence was the one in which it was found that the defendant had executed the note, and the
exact question then presented was whether there was such a preponderance of evidence in
favor of the finding that it had, as made the order granting a new trial an abuse of
discretion.
23 Nev. 39, 47 (1895) Wright v. Carson Water Co.
it had, as made the order granting a new trial an abuse of discretion. The dissenting judge was
of the opinion that there was, and that upon the undisputed and uncontradicted facts, the
defendant's liability was clearly established. He there said (21 Nev. 500): Rejecting the
plaintiffs' testimony wherever it conflicts with that of defendant, and taking the view of it
most favorable to the defendant, as under the circumstances we are required to do, it shows
both ratification of the note by the corporation, and such facts as should estop it from
contesting its liability." On the other hand, the majority of the court were of the opinion that
there was not such a preponderance against the ruling as required the court to reverse the
order. In their opinion it was said (p. 492): The evidence in this case is conflicting and
obscure in many particulars. The motion for new trial was made upon the ground, among
others, that the findings of fact were contrary to and not supported by the evidence, and that
the judgment was contrary to law. It does not appear on what ground the motion was granted.
The granting or refusal of a motion for a new trial on the ground of insufficiency of the
evidence to support the findings is addressed to the sound discretion of the judge who
presided at the trial of the case in the lower court, and on appeal from such order, where the
court below, in the exercise of a sound discretion, grants a new trial on conflicting evidence,
appellate courts have always refused to disturb the order.
These two extracts quite clearly indicate the question then before this court. Virtually it
was whether there was any evidence in the record then presented to show that the corporation
was not liable on the note. Now, the question is whether there is any evidence in the present
record to show that it is liable. These two questions are as wide apart as the poles, and the
decision of one should in no wise control the decision of the other. Upon the second trial had
judgment been again rendered in favor of the plaintiffs upon the same evidence, and then
another new trial been granted, upon appeal that decision would have been conclusive of the
point that granting such new trial was not an abuse of the discretion of the court, and that
there was some evidence to justify its being granted, but it ought to require no legal acumen
to see how different that question would be from that now presented.
23 Nev. 39, 48 (1895) Wright v. Carson Water Co.
acumen to see how different that question would be from that now presented.
In Klauber v. San Diego, etc., Co., 98 Cal. 105, the court said: As this rule is, however,
applicable only to matters which have been determined by the court, it is only where the same
matters that were determined on the first appeal are brought before it on a second appeal that
the rule can be invoked, and, being a rule that tends to prevent a judicial consideration of the
case, it is not to be extended beyond the exigencies which demand its application.
Moore v. Murdock, 25 Cal., is square upon the point that a decision upon a plaintiff's
appeal affirming an order granting a new trial is not a determination that there is no evidence
to support the plaintiff's case. Mahan v. Wood, 79 Cal. 258, also clearly points out the
difference that exists between an appeal from an order granting a new trial where the
evidence is conflicting and an appeal from a judgment in the case. Nor do I think that the
court upon the former appeal was guilty of the impropriety of attempting to decide that the
evidence then in the record did not make even a prima facie case against the defendant. There
is not one word in the record showing an intention to do so. Nowhere is it there said that there
was no evidence tending to establish the defendant's liability on the note, nor, as a matter of
law, that it was not the defendant's note. As I have already shown, there was no occasion to
consider that point. While the language used is not always clear as to just what was intended
to be expressed, a fair examination of it shows that the court was simply reviewing the
testimony for the purpose of showing that there was some evidence to support the ruling
granting the new trialthe question before itand with no thought of going on and usurping
the functions of a trial court and jury by deciding questions of fact not before it, and that it
had no jurisdiction to decide if they were.
I do not, however, deem it necessary to pursue this proposition further, for, admitting that
the attempt to forestall the question was made, the court did not have the power to do so.
I recognize the rule that what is decided upon a first appeal is not generally open to
reconsideration upon a second appeal, although there are exceptions to the rule, even as
thus stated. {U. S. v.
23 Nev. 39, 49 (1895) Wright v. Carson Water Co.
appeal, although there are exceptions to the rule, even as thus stated. (U. S. v. Elliott, 41 Pac.
Rep. 720.)
But this principle does not extend to all that may have been said in rendering the first
decision. It applies only to matters before the court for decision, and not to uncalled-for
expressions of opinion. Such expressions are obiter dicta, and not authority either in that case
or any other. To this effect the authorities are numerous and unanimous.
In Wixon v. Devine, 80 Cal. 385, the court said:
We have recently, in Sharon v. Sharon, 79 Cal. 633, had occasion to consider this
doctrine of the law of the case, which means, as we understand it, that the court having
erroneously decided some matter of law will always stand by the error in that case, although it
will not allow it to be a precedent in another, and we there determined that the doctrine had
nothing to commend it to the favor of the court, and that its application would not be
extended beyond the cases in which it had been held to apply. It has never, that we are aware,
been held to apply to expressions in an opinion which are merely obiter.
So, also, in State v. McGlynn, 20 Cal. 233, the court said: The law upon a question does
not become settled by the mere opinion of the judges unnecessarily expressed, but only by a
decision of the point, when being the ground, or at least one of the grounds, of a judgment.
The case of United States v. Bank of United States, 5 How. 395, is, so far as this point is
concerned, quite on all fours with this case. There, upon a first appeal, the majority of the
court had attempted to construe an instrument in writing, the construction of which was
unnecessary to the disposition of that appeal. Upon the second appeal the court said:
However high the regard of judges that did not concur may be for the views entertained and
expressed by other judges on a question of law not brought up for decision, still it is
impossible to recognize such views as binding authority consistently with the due
administration of justice, as by so doing the merits of the controversy might be forestalled
without due examination. We therefore feel ourselves at liberty to treat of the structure and
character of the instrument before us as an open question. In anology [analogy] to what was
there held I say that we should consider ourselves at liberty to consider and determine the
question now before us upon its merits, instead of following what was said on the first
appeal concerning matters not at all before the court at that time.
23 Nev. 39, 50 (1895) Wright v. Carson Water Co.
held I say that we should consider ourselves at liberty to consider and determine the question
now before us upon its merits, instead of following what was said on the first appeal
concerning matters not at all before the court at that time. Instead of straining to follow such a
decision, which results in the defeat of an apparently just and legal claim, the effort should
be, now that the error is admitted, to avoid following it, if possible, and thereby to do justice.
Luco v. DeToro (Cal.) 34 Pac. Rep. 516, is also quite in point here. In that case judgment
had gone against the plaintiff and he appealed. As error, he alleged that the finding of the
court as to whether he had performed the conditions of the contract upon which the action
was brought was ambiguous and uncertain. On appeal the supreme court sustained this
contention, but added that if, as contended by respondent, the finding was not uncertain, but
was a finding in favor of respondent on that issue, then it was not supported by the evidence,
which showed clearly that the plaintiff had performed. Upon the second trial, upon the same
evidence, the trial court found that he had not performed. Upon a second appeal the plaintiff
claimed that the point had been settled in his favor on the first appeal, and so far as the
language was concerned he was certainly right. In answer to this, however, the court said:
The ground upon which the former judgment of this court was rendered was the failure of
the trial court to make a finding upon the issue, and the statement in the opinion that the
finding which it had made was ambiguous and uncertain rendered what was subsequently said
about the insufficiency of the evidence to support the construction placed upon it by the
respondent in his argument merely obiter. Such a rule as the above would relieve us, just the
same as it did that court, from the consequences of a mistake made on the first appeal, and
leave us at liberty to decide this case upon its merits. People v. Skidmore, 27 Cal. 287;
Mulford v. Estudillo, 32 Cal. 131; Lathrop v. Knapp, 37 Wis. 307; Barney v. Winona, etc.,
Co., 117 U. S. 228, are to the same effect.
It is said that upon the first appeal the question of ratification was argued and considered at
great length. That is true, but it is no argument against what I have said above.
23 Nev. 39, 51 (1895) Wright v. Carson Water Co.
As the appellants then claimed that all the evidence showed ratification, it was necessary for
them to consider and argue it all. As the dissenting judge took the same view, it was
necessary for him to do the same. But this is quite a different thing from going to the extreme
on the other side, and holding that there was no evidence of ratification, as my associates now
claim was done. It made no difference, if the order was to be affirmed, whether there was or
not. If there was enough to support the order granting the new trial, that is, if the evidence
was substantially conflicting, that ended the matter, and the judgment must be affirmed.
Anything said farther than to show that there was some evidence to support it was pure
dictum.
As it seems to me, one other conclusive reason why that decision should not be treated as
conclusive upon this appeal may be mentioned. It cannot be denied that if anything was
decided in that case farther than that there was a conflict of evidence as to the defendant's
liability upon the note, it was a question of fact. Whether the defendant had authorized the
note, or had ratified its execution, were clearly questions for the jury. It is upon questions of
law, and not upon questions of fact, that the decision of the court becomes the law of the case.
(Sneed v. Osborn, 25 Cal. 619, 628.) In Mattingly v. Pennee, 105 Cal. 514, that court again
said: It is settled beyond controversy that a decision of this court on appeal, as to the
question of fact, does not become the law of the case.
My associates have not deemed it necessary to discuss these questions in their opinion.
The view there taken seems to be that if the material evidence of ratification is the same now
as on the first appeal, what was then said must control the present disposition of the case. In
my judgment, however, that consideration cuts but a comparatively small figure. The only
way that Mr. Yerington's knowledge or want of knowledge of the note in any way important
is that upon the first appeal the court seemed to be of the opinion that the evidence of
ratification was not conclusive, because it was not shown that he, being the third trustee and
also a large stockholder, had knowledge of it. If such were the law, it was material to show
that he did have such knowledge, and this was done by showing that the secretary's
reports containing it were particularly called to his attention in 1SS4 and again in 1SSS.
23 Nev. 39, 52 (1895) Wright v. Carson Water Co.
edge, and this was done by showing that the secretary's reports containing it were particularly
called to his attention in 1884 and again in 1888. In my judgment this does make quite a
material difference in the case, and is sufficient of itself to release it from the rule of res
adjudicata; especially is this the case if the question of ratification is to turn on whether all
the trustees had knowledge of, and acquiesced in, the execution of the note. But it is not by
any means the only reason why the former decision does not bind us now, nor even the most
important one.
It also seems to be their impression that the court then held that although the trustees, who
were also the principal stockholders of the corporation, knew of the existence of the note, that
such information would not be sufficient upon which to found ratification, although they
acquiesced in its execution, unless it was obtained in some official manner, or was
communicated to the board as such.
It is not asserted now that such is the law, but only that it was then so decided. In the view
I have taken of the case it is not very important whether it was or not, but I think nothing of
the kind was intended. The court held that the evidence showed that only two of the trustees
knew of the note, and the extract from the case of Yellow Jacket Co. v. Stevenson was
introduced for the purpose of showing that such knowledge of the part of a board was not
sufficient.
But admitting that it was so held and that it was a question before the court, it now appears
in the evidence that two of the trustees, who were also the president and secretary, executed
the note; that it was entered and carried as an outstanding indebtedness on the books of the
company; that it was contained in the reports of the officers, and that these reports were
examined and discussed by the trustees, and especially by the third trustee. If all this does not
constitute official information, or information to the board, it would be interesting to know
what would.
While I concurred in the first decision upon this appeal affirming the judgment, further
argument and consideration have thoroughly convinced me that it was wrong, and I therefore
dissent from the judgment.
____________
23 Nev. 53, 53 (1895) Livingston v. Wagner
[No. 1440.]
A. LIVINGSTON, Appellant, v. JOHN WAGNER,
Respondent.
SaleAction for Agreed PriceEvidence of True Value Competent.In an action for the price of goods, the
plaintiff having alleged an agreed price, it is competent for him to prove the value of the goods,
notwithstanding this allegation, and their reasonable value, not exceeding the price alleged, may be
recovered.
Findings Outside of Pleadings, Nugatory.Where a complaint alleges a sale and delivery of goods for an agreed
price of $2,000 and the answer denies that the value was greater than $500, but does not deny the sale and
delivery, a finding of no sale is outside of the pleadings and is nugatory.
Attorney and ClientCommunications When Not Privileged.Communications by parties to an attorney acting
professionally for all parties in the same transaction are not, as between them, privileged.
Appeal from the District Court of the State of Nevada, Ormsby county; C. E. Mack,
District Judge:
Action by A. Livingston against John Wagner for the purchase price of goods. From a
judgment for defendant and an order denying a new trial, plaintiff appeals. Reversed.
The facts sufficiently appear in the opinion.
Trenmor Coffin, for Appellant:
I. Both complaint and answer alleged a sale of the goods from Stein Bros. to Wagner.
Each party to the suit was estopped by his pleading from proving a different state of facts
from what he has alleged. No finding or judgment can stand which is not within the issues
made by the pleadings.
II. A judgment must accord with and be sustained by the pleadings of the party in whose
favor it is rendered, and no court, jury or referee has any authority to find a fact or draw
therefrom a legal conclusion which is outside of the issues. (Marshall v. Golden Fleece Mg.
Co., 16 Nev. 136, 173, et seq., and authorities cited; Frevert v. Henry, 14 Nev. 1914; Swan
v. Smith, 13 Nev. 257-60; Bliss on Code Pl., secs. 135, 138; Boggs v. Merced Mg. Co., 14
Cal. 356; Backman v. Supelveda, 39 Cal. 688.)
III. Both complaint and answer having alleged a sale of the goods, the court's original
finding No. 3, and the latter part of the second additional finding, were and are nullities,
and should be disregarded.
23 Nev. 53, 54 (1895) Livingston v. Wagner
part of the second additional finding, were and are nullities, and should be disregarded. (Swan
v. Smith, 13 Nev. 257-60; Backman v. Supelveda, 39 Cal. 688-9.)
IV. Plaintiff requested and the court made additional findings in which it was found that
$500 paid by Wagner was not in full for all the goods, and that the goods were worth $1,500.
The sale of the goods and the payment of $500 thereon is established by the pleadings; the
value of the goods is found by the court to be $1,500, which would leave $1,000 due. Upon
this record the judgment of dismissal should be reversed and the district court instructed to
enter a judgment in favor of plaintiff for $1,000 and costs.
V. The rulings of the court in allowing Mr. Torreyson to testify were error. (Gruber v.
Baker, 20 Nev. 453, 463, and authorities cited.)
Torreyson & Summerfield, for Respondent:
I. Plaintiff proved a different state of facts from that alleged in his complaint; defendant
met this state of facts, and because the court found the facts as he proved them, he now
complains that the judgment of the court is not in accordance with the pleadings and is
therefore erroneous and void.
II. The rule of law is that it is the duty of the court in the absence of objections to the
sufficiency of the complaint to give the plaintiff the benefit of any cause of action established
by the evidence, and a refusal by it to direct the jury to find in accordance with the case made
by such evidence would be error. (Cowing v. Altman, 79 N. Y. 167; Knapp v. Simon, 98 N.
Y. 284; Fallon v. Lawlor, 102 N. Y. 228.)
III. The plaintiff himself proved there was no sale and that he had no cause of action under
the pleadings. A variance may require a dismissal of the action or in proper cases an
amendment may be allowed. When the plaintiff proves a contract essentially different from
the one declared on, the defendant is entitled to a non-suit on the ground of variance.
(Johnson v. Moss, 45 Cal. 515.)
IV. Variances are no longer to be determined upon the inconsistency between the
pleadings and the evidence, but solely by a proof by affidavit or otherwise that the party has
been actually misled to his prejudice in maintaining his action or defense upon the merits
by the incorrect version of the facts given in the pleading of his adversary.
23 Nev. 53, 55 (1895) Livingston v. Wagner
been actually misled to his prejudice in maintaining his action or defense upon the merits by
the incorrect version of the facts given in the pleading of his adversary. (Bay. on Code
Pleading, 327.)
V. A variance between the proof on the trial and the allegations in the pleading shall be
disregarded as immaterial unless the court be satisfied that the adverse party has been misled,
to his prejudice thereby. (Boone on Code Pl., secs. 214, 215, and note; Dodd v. Denny, 6 Or.
153, 158; Short v. McRae, 4 Minn. 119; Bank v. Wills, 79 Mo. 275; Place v. Minister, 65 N.
Y. 104; Catlin v. Gunter, 11 N. Y. 372; Dunn v. Durant, 9 Daly (N. Y.), 339, 391.)
VI. The rule announced in Gruber v. Baker is not applicable to the facts in this case. The
witness Torreyson was only corroborating what Livingston and Stein said.
By the Court, Bonnifield, J.:
The plaintiff by his complaint alleges: * * * That on or about said May 17, 1894, said
Stein Bros. at the special instance and request of defendant, John Wagner, sold and delivered
to said defendant certain lot of goods, wares and merchandise (describing them) at the agreed
price of two thousand dollars; that said goods, wares and merchandise above mentioned were
reasonably worth the sum of two thousand dollars; that at the time said goods, wares and
merchandise were sold to defendant by said Stein Bros. said defendant paid therefor and on
account thereof the sum of five hundred dollars and no more, and plaintiff prays judgment
against said defendant for the sum of $1,500 and costs of suit.
The defendant by his answer denies and alleges as follows: * * * Defendant further
answering denies: That on or about the 17th of May, 1894, or at any other time or place, or at
all, said Stein Bros. at the special instance and request of defendant, or otherwise, sold and
delivered to defendant a certain lot of goods, wares and merchandise (describing the goods as
described in the complaint), at the agreed price of $2,000, or any other sum, except as
hereinafter specifically alleged. Denies that said goods, wares or merchandise were
reasonably worth the sum of $2,000, or any other or greater sum than the sum of $500; but
on the contrary defendant alleges that he purchased on the 17th day of May, 1S94, from
Stein Bros. a certain lot of goods, wares, and merchandise consisting of {describing the
goods), for the sum and price of $500, and that upon said last mentioned day said goods,
wares and merchandise * * * were sold and delivered to defendant by said Stein Bros.,
and defendant paid said Stein Bros. the said sum of $500 for said goods, wares and
merchandise, and upon said last mentioned day said property was delivered by said Stein
Bros.
23 Nev. 53, 56 (1895) Livingston v. Wagner
any other or greater sum than the sum of $500; but on the contrary defendant alleges that he
purchased on the 17th day of May, 1894, from Stein Bros. a certain lot of goods, wares, and
merchandise consisting of (describing the goods), for the sum and price of $500, and that
upon said last mentioned day said goods, wares and merchandise * * * were sold and
delivered to defendant by said Stein Bros., and defendant paid said Stein Bros. the said sum
of $500 for said goods, wares and merchandise, and upon said last mentioned day said
property was delivered by said Stein Bros. to defendant, and defendant took actual possession
of the same, and ever since said date has been and now is the legal owner and holder thereof.
Defendant denies that at the time said goods, wares and merchandise were sold to defendant
by said Stein Bros. he paid to said Stein Bros. on account thereof the sum of $500, but on the
contrary avers that the said sum of $500 was paid to said Stein Bros. by defendant in full
payment and settlement for all of said goods, wares and merchandise as hereinbefore set out,
and sold by said Stein Bros. to said defendant, and he prays judgment for his costs and that
he be dismissed.
The court dismissed the action and gave the defendant judgment for his costs. The plaintiff
moved for a new trial on the grounds:
1. Insufficiency of the evidence to justify the decision and findings and judgment of the
court, and that said decision and judgment are against law.
2. Errors in law occurring at the trial and excepted to by the plaintiff.
The motion was denied, and this appeal is from the judgment and the order denying a new
trial.
The court, in its findings of fact, found:
3. That there was no sale of the property mentioned in said complaint by Stein Bros. to
the defendant for the sum of $2,000, or for any sum of money whatever. It also found: That
the value of the goods and property mentioned and described in the pleadings and in the bill
of sale was $1,500 at the date of said bill of sale, and is now of said value.
What the rights are of the respective parties under the original agreement and transaction
between Stein Bros. and the defendant concerning said goods, we are not called upon to
determine on this appeal.
23 Nev. 53, 57 (1895) Livingston v. Wagner
the defendant concerning said goods, we are not called upon to determine on this appeal.
From the pleadings, as they now stand, we consider that the parties have mutually abandoned
or rescinded said agreement as to the objects or purposes of the transfer of the title and
possession of said goods to the defendant, and have elected to consider and treat the
transaction as an absolute sale and delivery of the goods. The action was brought by the
plaintiff upon such theory, and the defendant, by his answer, based his defense upon the same
theory. By the testimony of the parties themselves it was shown that no price was agreed on.
Then the case stood simply as an action to recover the value of the goods sold and delivered.
It is true the plaintiff alleged an agreed price; but notwithstanding this allegation it was
competent for him to prove the value of the goods.
Under an allegation of an agreed price, if there is a failure to prove the agreement as to
price, evidence of value is competent for the purpose of a recovery of what the article was
fairly worth, but not to sustain a recovery beyond the amount alleged. (Abbott's Trial
Evidence, 306; Sussdorff v. Smidt, 55 N. Y. 319; Trimble v. Stillwell, 4 E. D. Smith, 512.)
The complaint states a good cause of action to recover the reasonable value of goods sold
and delivered to the defendant at his special instance and request independently of the
allegation of an agreed price. This allegation cuts no figure in the case, except to prevent a
recovery for any greater sum than the price alleged.
The finding of the court that there was no sale of the goods made to the defendant is
finding against the pleadings; finding a fact not in issue and is therefore nugatory. The sale
and delivery of the goods are alleged in the complaint and not denied by the answer. The
value of the goods is alleged to be $2,000, a greater value than $500 is denied.
After it was shown that there was no agreed price the only question to be determined was
as to the value of the goods. On this issue the court found in favor of the plaintiff, that the
value was $1,500, but gave the defendant judgment for his costs. The judgment is manifestly
against law.
Counsel for plaintiff objected to General Torryeson's testifying to the negotiations
between Stein Bros. and the defendant in the matter of the transfer of the title and
possession of the goods in question by Stein Bros.
23 Nev. 53, 58 (1895) Livingston v. Wagner
fying to the negotiations between Stein Bros. and the defendant in the matter of the transfer of
the title and possession of the goods in question by Stein Bros. to the defendant, on the
ground that Mr. Torreyson was employed by Stein Bros. in the transaction.
The court, after hearing evidence on the matter of employment, found that Mr. Torreyson
was acting as legal advisor of both parties in the transaction had between them, and overruled
the objection, to which ruling the plaintiff excepted. We are of opinion that the evidence fully
supports the conclusion of the court, and that Mr. Torreyson was a competent witness as to
the matters to which he testified.
The authorities are abundant and harmonious on the question, for it is agreed on every
hand that communications made to one who is acting (as attorney) for both parties are
competent and cannot be considered as privileged. (Hanlon v. Doherty, 109 Ind. 44, and
citations.)
Where an attorney at law acts in his professional capacity for several parties in the same
transaction, he can, as between the parties themselves, testify to all that was said and done.
(Michael v. Foil, 100 N. C. 178.)
When a lawyer acts as the common attorney of two parties their communications to him
are privileged as far as concerns strangers, but as to themselves they stand on the same
footing as to the lawyer and either can compel him to testify against the other as to their
negotiations. (In re Bauer, 79 Cal. 304.)
The judgment and order appealed from are reversed and new trial granted.
____________
23 Nev. 59, 59 (1895) Wills v. Bank of Nevada
[No. 1431.]
EDWARD WILLS, Appellant, v. THE BANK OF
NEVADA, A Corporation, Respondent.
Statute of FraudsOriginal Undertaking.Where there was an agreement between defendant bank and a dealer
in hay, whereby the bank was to collect for the sales of hay, and from the proceeds pay checks given by the
dealer for the purchase price thereof, and such agreement was communicated by the bank to plaintiff, who,
relying thereon, sold hay to said dealer, the transaction was not within the statute of frauds, as a verbal
promise to answer for the debt of another.
VarianceQuestions Raised for First Time in Appellate Court.Questions as to variance between the
allegations of the complaint and the proofs cannot be raised in the appellate court, when they were not
raised at the trial, if an amendment could have been properly made to meet the objections.
Appeal from the District Court of the State of Nevada, Washoe county; A. E. Cheney,
District Judge:
Action by Edward Wills against the Bank of Nevada for goods sold and delivered.
Defendant had judgment, and plaintiff appeals. Reversed.
The facts sufficiently appear in the opinion.
Alfred Chartz, for Appellant:
I. This was an original promise, because the sole credit was given to the bank, and the
promisee had the right to give the sole credit to the bank instead of the bankrupt, and the
promise of the bank amounted to a virtual purchase, there being no pre-existing liability
between Mayberry and Wills, and Wills having refused to trust Mayberry, and being so poor
that he could not afford to trust him and having charged the account directly to respondent.
(Maubrey v. Cunningham, note 3, p. 202, Wood on Statute of Frauds.)
II. The attendant circumstances, the situation and general responsibility of the promisor
may be considered. (Anderson v. Hayman, 1 H. Bl. 120; Keate v. Temple, 1 B. & P. 158;
Wood on Frauds, secs. 98-100.)
III. An unconditional promise to pay for goods to be furnished to another is not within the
statute. (Morrison v. Baker, 81 N. C. 76; Wood on Frauds, sec. 128; Gordon v. Martin, Fitzg.
302; Mackay v. Smith, 28 Pac. 974.)
23 Nev. 59, 60 (1895) Wills v. Bank of Nevada
In Austen v. Baker, Lord Holt said that if B desired A to deliver goods to C, and promises
to see him paid, there assumpset lies against B. (Wood on Frauds, sec. 131; Talman v.
Rochester City Bank, 18 Barb. (N. Y.) 123; 13 John. (N. Y.) 175; Sinclair v. Bradley, 52 Mo.
180; Hodges v. Hall, 29 Vt. 209; 9 Ency. of Law, 72.)
IV. When the promisor makes the promise with an object of profit to himself, it is not
within the statute. (Nelson v. Boynton, 3 Metc. (Mass.) 396; Alger v. Scoville, 1 Gray (Mass.)
391; Belknap v. Bender, 75 N. Y. 446; Wood on Frauds, 264, note 2; 29 Vt. 23; 21 N. Y. 422,
418; 17 Pac. 887; 43 Mo. App. 139; 50 (Mich.) N. W. 305; 58 Am. Digest, 1892, sec. 36; 37
Am. Rep. 612; 33 Me. 368; 35 Mich. 320; Wood on Frauds, sec. 98; 56 N. Y. 334.)
V. If evidence is offered by plaintiff at variance with the allegations of the complaint, and
the counsel for the defense does not object to it at the time, nor move to strike it out upon the
grounds of variance, the error is waived. (Estee on Pl., 122; Bell v. Knowles, 45 Cal. 193; 25
Cal. 472; 25 Cal. 619.)
Torreyson & Summerfield, for Respondent:
I. Neither the verdict of the jury nor the findings of fact of a judge, which in this case are
all implied, which are necessary to sustain the judgment, will be disturbed by the appellate
court if there is a material conflict in the evidence and there is substantial testimony to
support it or them. The same well-establishing doctrine applies to orders granting or
overruling motions for new trials when made upon the alleged insufficiency of evidence.
(Edwards v. Carson Water Co., 21 Nev. 492; Blackie v. Cooney, 8 Nev. 41; Klopper v. Levy,
98 Cal. 525.)
II. Appellant fails to distinguish between mere variance and the well-established rule of
law that the allegata and probata must correspond. While it is no doubt the law that a mere
variance between pleadings and proof will be disregarded unless objection was opportunely
made to the admission of the evidence or a motion for non-suit was seasonably made, yet this
rule of law has never been held to extend so far as to relieve a plaintiff from the necessity of
proving the essential allegations of his complaint when they are denied by the answer.
23 Nev. 59, 61 (1895) Wills v. Bank of Nevada
proving the essential allegations of his complaint when they are denied by the answer. To
hold otherwise would be to destroy the necessity of pleadings altogether. (Wheeler v. Schad,
7 Nev. 204; James v. Goodenough, 7 Nev. 324; Stout v. Coffin, 28 Cal. 65; Estee's Pleadings,
3d ed., vol. 1, par. 205.)
III. Appellant and Mayberry, his principal witness, both testified in effect that respondent
became security for the payment of the hay by Mayberry. It is not claimed that its promise
was in writing. If our statute of frauds means anything at all it precludes appellant from
recovering upon such testimony.
By the Court, Bonnifield, J.:
This action was brought by the appellant as plaintiff against the respondent as defendant in
the District Court of the Second Judicial District, in and for Washoe county, to recover the
sum of $642 50, balance due for hay sold by plaintiff to the defendant and delivered to James
Mayberry at the defendant's request, as alleged in the complaint. The answer consists of
specific denials of the allegations of the complaint. The case was tried by the court sitting
without a jury. The court dismissed the action and gave the defendant judgment for its costs.
The plaintiff moved for a new trial, designating in his notice of motion as one of the grounds
the insufficiency of the evidence to justify the decision made by said court and the judgment
entered in the action, and in his statement on motion for new trial he specifies several
particulars in which he claims the evidence is insufficient to justify the decision. His motion
was denied. This appeal is taken from the judgment and the order of the court denying a new
trial. The court filed no findings of fact. No question was raised by counsel for the defendant
in the court below as to any variance between the allegations of the complaint and the proofs,
and no variance was suggested by the court until the time of its oral decision of the case, and
then the case was not decided on that ground, but it was based on the ground, in effect, that
the promise of the defendant to the plaintiff was a verbal promise to answer for the debt of
Mayberry, and was within the statute of frauds. As we have come to a different conclusion
from the court below, from the evidence in the case, we here give the material portions of
the testimony of the plaintiff and James Mayberry and all the testimony of M. O. Ward,
taken from the record, to wit:
23 Nev. 59, 62 (1895) Wills v. Bank of Nevada
below, from the evidence in the case, we here give the material portions of the testimony of
the plaintiff and James Mayberry and all the testimony of M. O. Ward, taken from the record,
to wit:
The plaintiff testified that in November, 1891, James Mayberry came to him to purchase
his hay, and said he would buy the hay if it suited him; that he went, looked at the hay and
returned to plaintiff's house and plaintiff asked him about the pay: that Mayberry said that he
would give him a check on the Bank of Nevada, and the bank would pay it in thirty days; that
the plaintiff need not take his word for it, but he could go and see Mr. Ward; that the plaintiff
went and saw Mr. Ward, and told him what Mayberry said; that Ward said: Get Mayberry's
checks and in thirty days the bank would cash them; that the bank paid the first and second
checks; that the second check was paid before the time was up, but payment of the third and
last check was refused.
Mayberry testified, in substance, that he was indebted to the bank; that he went to the bank
primarily to make arrangements with it to enable him to buy hay, and did make such
arrangements; that his arrangements were: That as soon as the hay he purchased was
delivered on the cars he would give to his several vendors checks on the bank for the price of
the hay bought, payable in thirty days, and deliver to the bank the shipping receipts for the
hay he shipped for it, to collect for his sales and to pay his said several checks, the profits to
be applied on his debt to the bank; that he bought and sold hay from different parties and
deposited the shipping receipts with the bank; that all the returns for the sales of the hay were
made to the bank; that it collected for all the sales of the hay and collected for the sale of the
Wills hay and paid for all the hay except the last check presented by the plaintiff; that when
he went to buy the plaintiff's hay the plaintiff asked him What about the pay? that he told
the plaintiff to go to the bank and see if everything is all right; that he could not have
bought hay if the bank had not obligated itself to pay his checks; that he could not have
bought the plaintiff's hay if the bank had not promised to pay his checks for it, for the
plaintiff refused to let him have it.
23 Nev. 59, 63 (1895) Wills v. Bank of Nevada
had not promised to pay his checks for it, for the plaintiff refused to let him have it.
He also testified that the checks given on the bank payable in thirty days gave time for the
returns to come in for the hay, and also that the hay business was profitable, and the bank
made it all; that he owed the bank less at the end of his hay operations than he did at the
beginning.
Mr. Ward testified that he was vice-president of the corporation defendant.
By Summerfield: Q.Did Mayberry have but one agreement with the bank with regard to
the purchase of hay? A.Mayberry wanted the bank to guarantee the payment of his checks.
I was a director in the board and was vice-president also, and I was a worker in the bank.
Q.Do you know of any transactions between Mayberry and Wills, the plaintiff in this
case, and the bank relative to hay purchases from Wills? A.Yes, sir.
Q.State to the court what arrangements existed between the Bank of Nevada and Wills
and Mayberry with regard to such transactions. A.Mayberry wanted to purchase hay, and he
wanted the bank to guarantee his checks that he might be able to purchase hay.
Q.Did you have but one agreementdid the bank have but one agreement with
Mayberry about the purchase of hay? A.Only one.
Q.State what that agreement was. A.Osburn and myself, as cashier of the bank, acting
under the board of directors, upon the receipt of the shipping receipts, after the hay was baled
and on board of the cars to guarantee the payment of Mayberry's checks in thirty days from
the time the checks were accepted by us, under the expectation that the money from the sales
of the hay would be returned to the bank within thirty days' time after the receipt of the
shipping receipts, but we always credited all receipts of money to Mayberry's account.
Q.That was the agreement and that was the order that you worked under? A.Yes, sir.
The bank was to guarantee the payment of checks given by Mayberry when the shipping
receipts were in and the checks were accepted by us, within thirty days from that time.
23 Nev. 59, 64 (1895) Wills v. Bank of Nevada
Q.Do you remember the transaction with Wills? A.I remember it in a general way, on
account of the business at the time.
Q.State what you remember about the payment of the first check testified to here.
A.The check was presented and guaranteed and in thirty days it was paid.
Q.Did the shipping receipt accompany it? A.Wills came into the bank when the
second check was paid and the cashier was inside and I was outside, and I heard him say to
Osburn: I have a check from Mayberry for hay; when will it be paid? and Osburn said, we
will pay it now, and it was paid.
In this connection witness testified that Osburn acted contrary to the order of the board of
directors in paying that check before due. Direct examination resumed by Summerfield:
Q.Have you made a careful examination of the books of the bank with reference to that
payment in order to refresh your recollection? A.I have.
Q.Do you remember any further conversation with Wills about the hay? A.Yes, sir. I
remember that Wills informed me later on that his had all been paid for and that there was
more hay that he had on hand, and I said to him to be careful, that Mayberry's account was not
good at the bank, and I remember distinctly that he said he had got paid for the other, and he
would take chances on this. The bank had no account with Wills. The returns were credited to
Mayberry.
Q.Do you remember the conversation with Wills at the depot where he testified that you
told him not to let Mayberry have any more hay? A.I thought the conversation was at the
bank. I spoke to him a time or two. He had told me that part of the hay was still in his
possession, and I suggested to him he had better keep it, that Mayberry's account was not
good, and I said that a loaf was better than no bread, and he said he would take chances; and I
remember telling Wills that some hay in California had not been paid and that the money had
not been remitted.
On cross-examination Mr. Ward testified that his best recollection was that Wills came in
the bank and asked about the hay, and he told Wills when the hay was baled and on board the
cars and the shipping receipts were in, that Wills should bring in a check from Mayberry
for a corresponding amount and the bank would pay it in thirty days after it was accepted.
23 Nev. 59, 65 (1895) Wills v. Bank of Nevada
board the cars and the shipping receipts were in, that Wills should bring in a check from
Mayberry for a corresponding amount and the bank would pay it in thirty days after it was
accepted.
Q.Have you any independent recollection of the words you used to Wills and the words
used by Wills to you at the time Wills went to the bank first about selling his hay? Is not your
recollection a general recollection of the promises that you made different people?
This question was repeated many, many times, and witness finally answered as follows:
A.I simply reiterated to Wills the directions I had from the board. I tried to follow the
directions of the board as close as I could.
Q.Do you give your independent recollection of what you said to Wills at the time the
promise was made? A.That is my recollection that I told Wills those were my instructions
from the board, but I don't know that I used those words.
Q.My question is, have you any independent recollection of what you said to Wills at
that time? A.That is my recollection, because that was my instructions.
By Summerfield: Q.At the time that Wills first went to the bank was the conversation in
the presence of anyone? A.I think Mr. Osburn was there.
With regard to the payment of the second check Mr. Ward testified that if Mr. Osburn had
obeyed the order of the board of directors it would have been better for the bank.
Upon being recalled for further cross-examination, Mr. Ward was asked: Q.What
induced you to tell Wills at the railroad depot in Reno not to let Mayberry have any more
hay? A.I don't know as I told him not to let Mayberry have any more hay.
Q.What was your object in making Wills whatever promises you may have made to
him? Was it for your own personal aggrandizement, or was it to subserve the interests of the
bank? A.It was for the bank.
Counsel for appellant urges several grounds upon either of which he claims that the right
of the plaintiff to maintain this action may be based under the evidence. We do not deem it
necessary to pass on more than one of them, and thus we will avoid entering the labyrinth
of conflicting decisions on the statute of frauds, from which it seems no court and no law
writer ever emerged with satisfaction as to the rules therein laid down.
23 Nev. 59, 66 (1895) Wills v. Bank of Nevada
deem it necessary to pass on more than one of them, and thus we will avoid entering the
labyrinth of conflicting decisions on the statute of frauds, from which it seems no court and
no law writer ever emerged with satisfaction as to the rules therein laid down.
Taking the testimony of M. E. Ward, the principal actor for the bank, under the directions
of the board of directors, and considering the several agreements developed by his evidence
in a business light, and as transactions between business men, the fair and reasonable
construction of his evidence is, that the bank agreed with James Mayberry that when he
bought hay, and it was delivered to him on the cars, he should give the vendors his check on
the bank, payable in thirty days, for the amount of the price of the hay so delivered, and
deliver to the bank the shipping receipts for the hay shipped by him, and the bank would
collect for the sales of the hay, and pay Mayberry's vendors the several checks he issued to
them for the hay, out of the proceeds of the sales, under the expectation that the returns from
the sales of the hay would be made to the bank within thirty days from such shipment; and
that Ward informed the plaintiff, in substance, of said agreement of the bank with Mayberry,
and agreed with the plaintiff when his hay was baled and delivered on the cars he should
bring in a check from Mayberry for a corresponding amount and the bank would cash it in
thirty days.
Now, the substance of the agreement on the part of Mayberry with the plaintiff was, that
when the hay was delivered on the cars he would give the plaintiff a check, for the price of
the hay, on the Bank of Nevada, payable in thirty days, and that the bank would pay it when
due. Mayberry's promise was not that he would collect for the sales of the hay and pay the
checks out of the proceeds. This is what the bank agreed to do, according to the testimony of
both Mayberry and Ward. This was an original undertaking on the part of the bank, and not
collateral to the promise of Mayberry. Mayberry did not assume, nor was he liable in the first
instance, to do what the bank promised to do. His legal obligation which existed as a legal
incident to his agreement with the plaintiff was to pay the check if the bank made default in
its payment.
23 Nev. 59, 67 (1895) Wills v. Bank of Nevada
made default in its payment. In contemplation of law Mayberry was guarantor for the bank;
his obligation was to pay the check upon the bank's failure of payment. His legal obligation
was also to have funds in the hands of the bank to meet the payment of the check when due;
and his uncontradicted evidence, in this respect, is that he did so have the funds there. He
testified that he deposited the shipping receipts at the bank for them to collect for the hay, and
that the bank did collect for the hay, and collected for Wills' hay, and paid for all the hay,
except the check presented last by Wills. He also testified, that all the returns from the sales
of the hay were made to the bank.
R. S. Osburn, the cashier of the bank, testified that Mayberry ran the business in such
ambiguous way that nobody could tell head or tail where the money came from; that no
shipping receipts were ever left with the bank and the bank finally quit.
It is not denied, however, on the part of the defendant that the returns from the sales of the
hay were made to it, or that it collected the money, the bank having collected the money, we
regard the non-delivery of the shipping receipts as being immaterial, and we cannot perceive
how the ambiguous manner Mayberry ran the business could relieve the defendant of its
obligations to pay the money it received for the sale of the Wills hay to the plaintiff on his
check.
This case, under the above state of facts, comes within the third class of cases considered
by Browne in his work on the Statute of Frauds, and also by Wood on the same subject.
Browne, at page 258, says: To a third class belongs the cases in which the property of the
third party is put into the hands of the defendant for the purpose of paying out of the proceeds
thereof, the third party's debt to the plaintiff. These are cases of obligation by the defendant,
as a trustee, to make such payment, and it is that personal obligation which the plaintiff seeks
to enforce, and his right of action is not affected by the statute.
In note 1, p. 259, he cites Fullman v. Adams, 37 Vt. 397, as a case giving one of the most
intelligent and instructive opinions that have ever been delivered upon the sublect [subject] of
guaranties under the statute of frauds.
23 Nev. 59, 68 (1895) Wills v. Bank of Nevada
In the Vermont case the soundness of the rule is recognized, that a verbal promise to pay
the debt of another, where the promisor has received the funds or property of the debtor for
the purpose of being so applied, so that an obligation or duty rests upon him, as between
himself and the debtor to make such payment, though in form a promise to pay the debt of
another, it is in fact a promise to perform an obligation or duty of his own, and is not within
the statute.
Chief Justice Poland, in his opinion, says: And where a debtor transfers funds or property
to another for the purpose of paying his debt, and the person thus holding the funds or
property promises the creditor to pay his debt, such promise is held good, though not in
writing. And he says: We apprehend the true principle why the promise to the creditor is
valid without writing is the party making the promise holds the funds of the debtor for the
purpose of paying his debt, and as between him and the debtor it his duty to pay the debt, so
that when he promises the creditor to pay it, in substance he promises to pay his own debt,
and not that of another, and though the debtor still remains liable for his own debt, his
relation is rather that of a surety for the party whose duty it is and who has promised to pay
his debt, that of a principal for whom the other has become surety or guarantor. He holds a
fund in trust, under a duty to pay it to the creditor, and he makes an express promise to
perform it. In such case it is no violation of the spirit of the statute to hold such promise an
original one and not necessary to be in writing.
Wood on Statute of Frauds, sec. 144, says: Where the promisor has funds in his hands
belonging to the debtor, from which he has authority to pay a certain debt, the promise is not
within the statute, because it is a promise merely to pay to the creditor what he would
otherwise be bound to pay to the debtor in satisfaction of his own debt; and the same is true
where the promise is conditional, as to pay if he receives funds of the debtor to the amount of
the debt. In such case, while there is no obligation to pay unless the condition is fulfilled, yet,
if the condition is fulfilled, the promise is operative and not within the statute, because the
debtor's own funds are relied upon for payment. In support of the above rules the author
cites many authorities. "If one deliver money or personal property to another, under the
promise of the latter to deliver it over to a third person who has a beneficial interest
therein, or to convert it into money and pay him the proceeds, the third party can
maintain an action therefor against the promisor.
23 Nev. 59, 69 (1895) Wills v. Bank of Nevada
above rules the author cites many authorities. If one deliver money or personal property to
another, under the promise of the latter to deliver it over to a third person who has a
beneficial interest therein, or to convert it into money and pay him the proceeds, the third
party can maintain an action therefor against the promisor. A fortiori is this the case where the
person receiving the money or personalty subsequently promises the third party to deliver it to
him. (Wynn's Administrator v. Wood et al., 97 Pa. St. 216, and cases there cited.) Wood on
Statute of Frauds says the soundness of the doctrine in the above case cannot be questioned.
We have been unable to find an authority in conflict with the authorities herein cited.
In consideration of the above authorities, and the reason of the rules and legal principles
therein determined, and those rules and principles being applicable to the facts of the case at
bar, we hold that the defendant is liable in this action.
Counsel for respondent argues in support of the judgment that the proofs do not
correspond with the allegations of the complaint. The theory of the pleader was that under the
facts and circumstances of the case the defendant was the purchaser of the plaintiff's hay, and
the appellant by his counsel cites a great many authorities in support of that theory. As to the
correctness of this theory, it is not necessary and we do not pass upon it. During the progress
of the trial it was not considered that there was anything in the complaint restricting the field
of inquiry into the several agreements and transactions on the part of the three actors in
reference to the hay bought and sold and the liability or non-liability of the defendant
thereunder. If there be a variance between the allegations of the complaint and the proofs, it is
such that an amendment of the complaint could properly have been made if such objection
had been taken at the trial.
The judgment and order appealed from are reversed.
Belknap, J.: I concur.
Bigelow, C. J., being disqualified under the statutes, did not participate in the decision.
____________
23 Nev. 70, 70 (1895) Crosby v. North Bonanza Silver Mining Co.
[No. 1448.]
JOHN J. CROSBY, Respondent v. THE NORTH BONANZA SILVER MINING
COMPANY, A Corporation, Appellant.
PracticeNew TrialPremature Ruling Upon.A motion for new trial, when made upon a statement, should
not be ruled upon until the statement has been settled and authenticated. If done, the ruling is irregular and
premature, and should be vacated upon motion.
IdemErrorsWhen Waived.A party cannot avail himself of an error to which he has consented, or which
has been induced by his own acts, when free from misapprehension or mistake.
IdemStatementStipulation.Where, before a statement has been settled, counsel stipulated that the motion
for new trial should be submitted for decision, and it is not shown that this was done through inadvertence
or mistake, a ruling on the motion does not constitute error of which the party can take advantage.
IdemNew TrialMotion for, Submitted, How Vacated.Where a motion for new trial has been regularly
submitted upon a sufficient statement, a ruling thereon cannot be subsequently vacated on motion, but the
only remedy is by appeal. (Syllabus by Bigelow, C. J.)
Appeal from the District Court of the State of Nevada, Storey county; A. E. Cheney,
District Judge:
Action by John J. Crosby against the North Bonanza Silver Mining Company. Judgment
for plaintiff. From an order overruling a motion for new trial, defendant appeals. Affirmed.
The facts sufficiently appear in the opinion.
Alfred Chartz, for Appellant:
I. The party or attorney who seeks to avail himself of the want of written notice of the
presentation for settlement of a bill of exceptions and the amendments thereto, or of any
technicality not affecting his substantial rights, must be held to a prompt, consistent and exact
assertion of such technical right. (Hicks v. Masten, 101 Cal. 651; Hayne N. Tr. & A., 409 and
395; Young v. Rosenbaum, 39 Cal. 654; Shields v. Horback, 58 N. W. Neb. 793.)
II. If, however, the facts should appear to the appellate court in accidental or unusual
manner, such as by stipulation of the parties or by a recital in the order disposing of the
motion, there seems to have been no good reason why, under the old practice act, the
defect should not have been held to have been waived."
23 Nev. 70, 71 (1895) Crosby v. North Bonanza Silver Mining Co.
the motion, there seems to have been no good reason why, under the old practice act, the
defect should not have been held to have been waived. (Hayne on New Trials and Appeal, p.
469.) The old practice act above referred to is identical with ours, and remained so down to
1872, and decisions rendered upon this statute apply to the case at bar.
III. Where a party appears and argues a motion for a new trial, he cannot afterwards object
that the statement was not agreed to by him and that it was not settled by the judge.
(Dickenson v. Van Dorn, 9 Cal. 207; Williams v. Gregory, 9 Cal. 76; Morris v. Engle, 42 Cal.
236; Estee's Pleadings, vol. III, 478.)
IV. The court should not have decided the motion, or should have decided it as though
any objection had been waived. (Biaggi v. Howes, 63 Cal. 384; Matter of Wiertbitszky & Co.,
88 Cal. 333; Hayne, p. 499; sec. 134, p. 373; sec. 11, p. 51; Simpson v. Ogg, 18 Nev. 31, 34.)
V. An order granting or refusing a new trial, made after the regular submission of a
motion for that purpose, is reviewable only on appeal. But it is otherwise, where such an
order has been inadvertently or prematurely made. (O. F. Sv. Bank v. Duprey, 66 Cal. 170;
Morris v. DeCelis, 41 Cal. 331; Hall v. Pollack, 42 Cal. 218; Coombs v. Hibberd, 43 Cal.
453; Nichols v. Dunphy, 10 P. C. L. J. 193; Thomas v. Sullivan, 11 Nev. 280.)
VI. In the case at bar there was no argument upon the motion for new trial. It was
stipulated that the court might decide the motion without further argument, and comes within
the line and spirit of the case of Thomas v. Sullivan, 11 Nev. 280, and Morris v. DeCelis,
supra, and the case of O. F. Sv. Bank v. Duprey, 66 Cal. 170, and this court cannot say, as
was said in White v. White, 6 Nev. 23, and in McWilliams v. Hirshman, 5 Nev. 263, that the
party moving may have appeared simply to make his objections, and the record could not
show what he appeared for.
VII. Thomas v. Sullivan, 11 Nev. 280, is the only case in this state where the question
involved in this case is decided. The proceedings in this case are much more regular than they
were in Thomas v. Sullivan. In this case, as in Morris v. DeCelis, a motion was made to
vacate the order, and the motion was denied as in that case, and now an appeal is taken
from that last order, as in Morris v. DeCelis, which cause was "remanded for further
proceedings for the orderly determination of the motion for new trial."
VIII. An order denying a motion for new trial, when there is no statement settled on file,
is erroneous. {Hart v. Burnett, 10 Cal.
23 Nev. 70, 72 (1895) Crosby v. North Bonanza Silver Mining Co.
motion was denied as in that case, and now an appeal is taken from that last order, as in
Morris v. DeCelis, which cause was remanded for further proceedings for the orderly
determination of the motion for new trial.
VIII. An order denying a motion for new trial, when there is no statement settled on file, is
erroneous. (Hart v. Burnett, 10 Cal. 64.)
IX. The duty of the court in case a skeleton bill of exceptions is presented or a statement
on motion for a new trial improperly presented for settlement is illustrated by the following
authorities: Sampson v. Myers, 80 Cal. 485-487; Hicks v. Masten, 101 Cal. 651; Vischer v.
Smith, 92 Cal. 60; Hollom Parker, Petitioner, 131 U. S. 221; 97 Mo. 331; 131 U. S. 221.
F. M. Huffaker, for Respondent:
I. Rule 10 of the district court provides 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,
etc. For a failure to comply with this rule the motion shall be denied. This rule is imperative
and counsel should have complied with it. Rules of court should be regarded and held to be
as binding and obligatory upon litigants as any other statute or rule of civil conduct. (Lightle
v. Ivancovich, 10 Nev. 41; Haley v. Eureka Co. Bank, 20 Nev. 410.)
II. The order appealed from was correct for another reason, to wit, the grounds set forth in
said notice are insufficient. The judge cannot certify anything presented or used on a motion
for new trial. The judge is not required to settle any statement where no amendments are
proposed. (Bordon v. Bender, 16 Nev. 49; Overman S. M. Co. v. Am. M. Co., 7 Nev. 312.)
III. The order of May 29th was made in the regular exercises of the jurisdiction of the
court, and therefore is not null and void. The inadvertence complained of is that of the court,
and not of counsel. This court cannot certainly say that the trial court was either inadvertent,
improvident or premature in making said order of May 29th, and counsel does not admit or
ask any relief against any inadvertence of his own, if any such there be.
23 Nev. 70, 73 (1895) Crosby v. North Bonanza Silver Mining Co.
his own, if any such there be. The presumption is, in the absence of a satisfactory showing,
there was none.
IV. Verbal agreements between counsel are not recognized in our practice. (Haley v.
Eureka Co. Bank, 20 Nev. 410.)
V. There appears to be no question of judicial discretion involved in this case, and if there
were, it is only a clear abuse of judicial discretion an appellate court will consider on appeal.
The 131 U. S. 221, referred to by counsel in closing his brief, is but stating in other language
the declaration of this court in Burbank v. Rivers, 20 Nev. 81, to the effect that the method of
taking appeals and the questions to be considered thereunder by the appellate court are
matters of purely statutory regulations.
By the Court, Bigelow, C. J.:
Appeal from an order refusing to vacate and set aside an order overruling a motion for a
new trial, entered under the following circumstances: Judgment having been rendered against
defendant, his attorney gave notice of a motion for a new trial, and in due time filed and
served a statement thereon. No evidence, however, of this service was preserved in the
record, no amendments to the statement were made by the plaintiff, and no certificate was
made by the clerk that none had been filed.
Gen. Stats., sec. 3219, provide that when a statement has been agreed upon it shall be
authenticated by the certificate of the parties, or their attorneys, that the same has been agreed
upon and is correct. When settled by the judge it shall be accompanied by his certificate that
it has been allowed and is correct. When no amendments have been filed it shall be
accompanied by the certificate of the clerk to that effect, and this seems to be the only
certificate of the correctness of the statement then required.
In the case at bar no certificate of any kind was attached to the statement. While the record
was in this condition the parties stipulated "that defendant's motion for new trial is hereby
submitted to Hon. A. E. Cheney, who presided as judge in the trial of the above entitled
action, for his decision, without farther argument, and that the clerk of this court may forward
to said judge said statement on motion for new trial, at Reno, Nevada, and that said judge
may return the same to the above entitled court, to the clerk thereof, with his decision
thereon."
23 Nev. 70, 74 (1895) Crosby v. North Bonanza Silver Mining Co.
for new trial, at Reno, Nevada, and that said judge may return the same to the above entitled
court, to the clerk thereof, with his decision thereon."
Upon this submission, an order was made overruling the motion for new trial on the
ground that the statement on which the motion was made did not appear to have been served
on the plaintiff, and was in no manner authenticated.
Subsequently the motion to set aside this order was made on the ground that it had been
inadvertently and prematurely made, before the statement had been settled or authenticated.
No affidavit accompanied this notice, and when defendant offered to support the motion by
oral testimony the offer was objected to and overruled on the ground that the notice did not
give the name of any witness to be examined upon the hearing, as required by a rule of court.
The motion was then overruled and this appeal followed.
The above are not all the circumstances connected with the matter, but they are all that we
deem material to the decision of the appeal.
It will be noticed that there was no evidence given on the hearing that the motion for new
trial had been submitted inadvertently by counsel, nor that when he signed the stipulation
submitting it, he was under any misapprehension as to the condition of the statement, or the
requirements of the law, or that he expected the statement to be settled or authenticated
before the motion was ruled upon. Indeed, the motion was not based on any of the grounds
above suggested, but upon the ground alone that the order having been made before the
statement had been settled or authenticated, it was irregular and premature. We must
consequently presume that in submitting the motion counsel acted advisedly, and intended it
to be submitted in just the shape in which it was done.
Under these circumstances our attention must be confined to the point last suggested,
namely, that it was error for the court to rule upon the motion before the statement had been
certified by the clerk, or in some manner authenticated or settled.
That the order was not erroneous has been a number of times decided by this court.
(Lamburth v. Dalton, 9 Nev. 66; Dean v. Pritchard, 9 Nev. 232; Soloman v. Fuller, 13 Nev.
276; Simpson v. Ogg, 1S Nev. 2S
23 Nev. 70, 75 (1895) Crosby v. North Bonanza Silver Mining Co.
Dean v. Pritchard, 9 Nev. 232; Soloman v. Fuller, 13 Nev. 276; Simpson v. Ogg, 18 Nev.
28.)
But in none of these cases was the point made that the ruling was premature and irregular; we
do not, therefore consider them decisive of the question now presented, and to the end that
cases may, as far as possible, be decided upon their merits, and not upon procedure, and in
accordance with what seem a better and more just line of authorities (Thomas v. Sullivan, 11
Nev. 280; Morris v. DeCelis, 41 Cal. 331; Odd Fellows Savings Bank v. Duprey, 66 Cal. 168;
Stewart v. Taylor, 68 Cal. 5; Carpenter v. Superior Court, 75 Cal. 596), we are willing to
admit that ordinarily motions for new trial should not be ruled upon until there is a settled and
authenticated statement, where the motion is made upon a statement, and that such a ruling
would be premature and irregular, and should be vacated upon proper motion; but we do not
consider these admissions as decisive of this case.
The ordinary rule is that a party cannot avail himself of an error to which he has consented,
or which has been induced by his own acts when free from misapprehension or mistake. A
party who expressly asks that a designated ruling be made cannot avail himself of that ruling
on appeal, although it may be material and may be exhibited by the record. What a party
expressly asks cannot be made available as error without a violation of the plainest principles
of justice. (Elliott, App. Proc., sec. 626.) The error claimed here consisted of passing on the
motion for new trial before the statement had been duly authenticated. But this is precisely
what counsel stipulated should be done. That is, he stipulated that the motion should be
passed upon, and as the statement was then incomplete, and it is not shown, or suggested, that
he did not know of it, we must presume that he did, and intended it to be submitted in just the
shape in which it then was. Doubtless, if the judge had reason to believe that the stipulation
had been signed and submitted inadvertently he might have called counsel's attention to the
condition of the record, when probably it would have been corrected, but this was a matter in
his discretion, and we must not forget that it might have been the intention to submit the
motion in just the shape in which it was done. If such were the case, then the judge's only
duty was to pass upon it just as he did.
23 Nev. 70, 76 (1895) Crosby v. North Bonanza Silver Mining Co.
such were the case, then the judge's only duty was to pass upon it just as he did. At any rate,
having stipulated for the judge to rule upon the motion, so long as such stipulation stands
uncontroverted and unexplained, he cannot claim such ruling to constitute error. (Thompson
v. Connolly, 43 Cal. 636.) See also Hayne, New Trial and App., sec. 282.
If it be further said that by the stipulation plaintiff had waived the want of proof of service
upon him, and had waived the absence of authentication, while this may, perhaps, be true, it
simply amounts to this, that then the motion was not submitted inadvertently, and the ruling
thereon was upon a good statement, and not premature or improvident, although placed upon
a wrong ground, and the motion to vacate was not defendant's remedy, but an appeal directly
from the order. (Coombs v. Hibberd, 43 Cal. 452; Carpenter v. Superior Court, 75 Cal. 596.)
The order is affirmed.
____________
23 Nev. 76, 76 (1895) State v. Shearer
[No. 1449.]
THE STATE OF NEVADA, ex rel. F. H. NORCROSS, Relator and Appellant, v. B. C.
SHEARER, as Auditor of Washoe County, Respondent.
MandamusWill Not Lie, When.Mandamus will not lie to compel an auditor of a county to issue a warrant
on a county treasurer to pay an illegal claim against a town or city.
Board of County CommissionersPowers of, Under Town and City Government Act.All the powers and
jurisdiction exercised and all the duties performed by boards of county commissioners under the act
entitled An act providing for the government of the towns and cities of this state (Gen. Stats. 2024, et
seq.) are exercised and performed by the boards of county commissioners as such boards, and not as boards
of trustees or aldermen of the towns or cities.
District AttorneyAdviser of Board of CommissionersCompensation ofTown and City Government
Act.Under Gen. Stats., sec. 2116, providing for the district attorney at all times to give his advice, when
required, to said commissioners upon matters relating to their duties, it is the duty of the district attorney
to assist the board of commissioners in formulating and adopting ordinances, within the scope of their
authority, under the town and city government act (Gen. Stats. 2024, et seq.), and for such services he is
not entitled to additional compensation, even though he should draw such ordinances himself, instead of
telling the board how to draw them, or of dictating them to the clerk, it still being in the nature of advice in
a matter concerning the duties of the board of commissioners.
23 Nev. 76, 77 (1895) State v. Shearer
Appeal from the District Court of the State of Nevada, Washoe county; A. E. Cheney,
District Judge:
Petition for writ of mandamus by the State, upon the relation of F. H. Norcross, against B.
C. Shearer, as Auditor of Washoe county. The writ was denied and relator appeals. Affirmed.
The facts sufficiently appear in the opinion.
Torreyson & Summerfield, for Appellant:
I. The district attorney, like all other county officers, derives no power or authority from
the constitution. He must seek for his powers and duties in the statutes alone, and he is
limited in his actions by the statute. (State v. Washoe Co., 14 Nev. 70.)
II. The duties required or authorized to be performed by the district attorney under and by
virtue of the provisions of this act (Stats. 1881, p. 68), are found in the following sections of
the Gen. Stats.: 2027, 2034. The only duties required to be performed by the district attorney
in matters relating to the government of towns and cities are those that are declared under and
by virtue of the provisions of the act, but nowhere does it state, either directly or by
implication, that it is his duty to draw town ordinances.
III. In every instance where duties are imposed on the district attorney by statute, they are
prescribed in express terms. See Gen. Stats. 461, 652, 673, 682, 694, 698, 774, 1082-3, 1099,
1105, 1114-17, 1157, 1180, 1183-6, 1244, 1219, 1571, 1586, 1595, 1695, 1960-61, 2034,
2037, 2064, 2087, 2104, 2118, 3712, 3735, 3930-31, 3952-66, 4088, 4093, 4099, 4115, 4405,
4465-66, 4538, 4830, 4864; Stats. 1887, pp. 52, 65, 84; 1889, pp. 54, 73; 1891, pp. 61,
135-139; 1895, p. 101.
IV. Under Gen. Stats. 2104, 2118, it is made the duty of the district attorney to act as
public prosecutor to draw all indictments when required. * * * He shall also perform such
other duties as may be required by law. He shall, without fee, give his opinion to any
assessor, * * * in any matter relating to the duties of their respective offices; * * * shall attend
the sittings of the board of county commissioners, * * * and shall at all times give his advice
when required to said commissioners upon matters relating to their duties.
23 Nev. 76, 78 (1895) State v. Shearer
advice when required to said commissioners upon matters relating to their duties.
The only provision of the general act, defining the duties of district attorney, that would by
any possibility relate to the point in question, is that which provides that he shall without
fee, give his opinion to any county or township officer, on matters relating to the duties of
their respective offices, and that he shall at all times give his advice to said commissioners
upon matters relating to their duties. But appellant contends that the law requiring the
district attorney to give his opinion or advice to the board of county commissioners, on
matters relating to their duties cannot be construed into making it his duty to prepare town
ordinances, whenever the board of county commissioners may desire. There is then no law
which in express terms makes it the duty of the district attorney of Washoe county to prepare
ordinances for the town of Reno at the request or order of the board of county commissioners.
There is no law, which by any reasonable construction, would imply that it was the duty of
the district attorney to prepare town ordinances.
V. The district attorney of Washoe county is paid a salary for performing certain specific
duties. If he performs services for the town of Reno or the county of Washoe that are
extra-official, such that the board of commissioners would have to pay some one for doing,
he is entitled to receive compensation over and above his salary in payment for the additional
services. An officer may be employed to discharge duties which are clearly extra-official and
outside the scope of his official duty, and which might be performed by one person as well as
another, and he will be entitled to additional compensation therefor. (Am. & Eng. Ency. of
Law, vol. 19, p. 530, and cases cited, especially Evans v. Trenton, 24 N. J. Law, 4 Zab. 764;
Love v. Bachr, 47 Cal. 364; Coller v. U. S., 22 Ct. Cl. 125; Am. Digest, 1890, p. 2859; U. S.
v. Evans, 4 Mackey (D. C.) 281.)
VI. In determining whether or not it is the duty of the district attorney to draw town
ordinances, appellant invokes the following rules of statutory construction: If a law is plain
and unambiguous, there is no room for construction or interpretation."
23 Nev. 76, 79 (1895) State v. Shearer
interpretation. (Brown v. Davis, 1. Nev. 409.) When the various sections of the statute are
clear, plain and unambiguous, the legislature must be understood to mean what it has
explicitly expressed. In such a case there is no room for construction. (Odd Fellows' Bank v.
Quillen, 11 Nev. 109.) When the language of a statute is plain, its intention must be deduced
from such language, and courts have no right to go beyond it. (State v. Washoe Co., 6 Nev.
409.) Where the interpretation of a statute in a certain way will result in manifest injustice,
courts will always scrutinize the statute closely, to see if it will not admit of some other
interpretation. (State v. Krutschnitt, 4 Nev. 178.)
T. V. Julien, for Respondent:
I. The official powers, duties, privileges and responsibilities of all county officers are
prescribed by the General Statutes of the state, including the town government act. Officers
performing services under the requirements of the town act, do so as county officers. This
relator admits. The statutes prescribe certain duties to be performed by the district attorney,
and such other duties as may be required by law, and among other duties required by law
are those mentioned in the town act. The district attorney is paid a salary for all official
services, and the town act, in express terms, prohibits that officer from demanding or
receiving compensation for services performed under the provision of that act. (Gen. Stats.
2037.)
II. The services performed by relator were not extra-official. It was as much a part of his
official duty to prepare an ordinance at the request of the board as it would be to prepare a
contract, deed or other instrument to which the town or county is a party.
III. A person accepting a public office with a fixed salary is bound to perform the duties of
the office for the salary, and cannot legally claim additional compensation for additional
incidental services, and an express promise to pay extra compensation or allowance of it is
void. (Am. & Eng. Ency. of Law, p. 529; Adams Co. v. Hunter, 78 Iowa, 328; Griffin v. Clay
Co., 63 Iowa, 413; 3 Saw. 473.)
23 Nev. 76, 80 (1895) State v. Shearer
By the Court, Bonnifield, J.:
The town government of the town of Reno, in Washoe county, was organized under an act
of the legislature entitled An act providing for the government of the towns and cities of this
state, approved February 26, 1881, and the acts amendatory thereof.
The machinery of the governments of towns and cities organized under the above named
acts is placed in the hands of the boards of county commissioners and other county officers of
their respective counties. The relator is the district attorney and the respondent is the county
auditor of Washoe county. From the record it appears that the relator drew up and presented
to the board of county commissioners of Washoe county an ordinance to regulate licenses in
the town of Reno, which the board adopted, and he presented his claim against said town to
said board in the sum of fifty dollars, the agreed price between him and said board for said
services; that the claim was allowed by the board and certified by the clerk of the board to
respondent as county auditor; that the auditor returned said claim to the board with his written
objections to its validity attached thereto; that the relator demanded of the auditor that he
issue and deliver to him a warrant upon the county treasurer, payable out of the general fund
of the town of Reno, and the auditor refused to do so; that the relator by regular proceedings
applied to the District Court of the Second Judicial District, in and for Washoe county, for a
writ of mandate to compel the respondent to issue such warrant, and that upon the hearing of
the application the court dismissed the proceedings. This appeal is from the order of
dismissal.
Mandamus will not lie to compel the auditor to issue a warrant on the county treasurer to
pay an illegal claim. The question then in this case is: Is the said claim of relator a legal claim
against the town of Reno?
The above named acts concerning the governments of the towns and cities provide: In
addition to the powers and jurisdiction conferred by other laws, the boards of county
commissioners of the counties of this state shall have the following: * * *
Fourteenth: To pass or adopt all ordinances, rules and regulations, and do and perform
all other acts and things necessary for the execution of the powers and jurisdiction by this
act conferred.
23 Nev. 76, 81 (1895) State v. Shearer
regulations, and do and perform all other acts and things necessary for the execution of the
powers and jurisdiction by this act conferred.
Fifteenth: To audit and allow all claims properly payable out of the funds of said towns
and cities.
It will be observed that all the powers and jurisdiction exercised and all duties performed
under the above provisions of the act are exercised and performed by the boards of county
commissioners as such boards, and not as boards of trustees or aldermen of the towns and
cities. The act concerning district attorneys (Sec. 2116, Gen. Stats.) requires the district
attorney to attend the sittings of the board of county commissioners when he is not engaged in
the criminal business of the district court, and at all times to give his advice, when required,
to said commissioners upon matters relating to their duties. Among the numerous powers
conferred on the boards of county commissioners by the town government act are the
following:
Ninth: To fix and collect a license tax, and regulate all places of business and amusement
so licensed. To exercise these powers and perform these duties, it is necessary for the boards
first to formulate and adopt appropriate ordinances therefore. In doing this they are entitled to
the assistance of their legal adviser, and if he, instead of telling them how to draw them, or of
dictating them to the clerk, saw fit to draw them himself, it was still in the nature of advice in
a matter it was their duty to perform; advice relating to their duties in legislating for the
town of Reno. It was a duty required or authorized by the board to be performed by him under
and by virtue of said town government act, and this act provides: No officer performing any
duty under this act shall demand or receive any compensation therefor. That act also
provides that the district attorney and other county officers named, not especially exempted
therefrom, shall perform the duties required or authorized to be performed by him or them
under and by virtue of the provisions of the act.
We find no provision specially or otherwise exempting the district attorney from advising
the board of county commissioners relating to any of their duties in matters pertaining to the
government of towns and cities; but, upon the contrary, we are of opinion that his duties
in this respect are the same as to his giving advice to the board concerning any other of
its official duties.
23 Nev. 76, 82 (1895) State v. Shearer
to the government of towns and cities; but, upon the contrary, we are of opinion that his
duties in this respect are the same as to his giving advice to the board concerning any other of
its official duties.
Counsel for appellant in his brief says: The boards of county commissioners have the
power to pass or adopt ordinances fixing and regulating licenses, but as boards of county
commissioners are generally composed of men not familiar with drafting ordinances, or the
language in which they should be couched in order that they may be in conformity with law
and without ambiguity, it is necessary as a general rule that they employ some one more
familiar with work of this nature.
We fully concur with counsel that these boards are not usually familiar with drafting
ordinances or the language in which they should be couched to avoid ambiguity. For this
reason the legislature has made it the duty of the district attorney to give them such advice
and aid in these matters as may be necessary, and whether such advice and assistance be oral
or in the form of an ordinance he is not entitled to extra compensation therefor.
It follows, therefore, that the relator's claim is not properly payable out of the funds of
the town of Reno, and is illegal. He is paid for all such services by his salary as district
attorney.
It is a well-settled rule that a person accepting a public office, with a fixed salary, is
bound to perform the duties of the office for the salary. He cannot legally claim additional
compensation for the discharge of his duties, even though the salary may be inadequate
remuneration for the service. Nor does it alter the case that by subsequent statutes or
ordinances his duties within the scope of the charter power pertaining to his office, are
increased and not his salary. Whenever he considers the compensation inadequate, he is at
liberty to resign. The rule is of importance to the public. To allow changes and additions in
the duties, properly belonging, or which may properly be attached to an office to lay the
foundation for extra compensation would introduce intolerable mischief. The rule, too, should
be rigidly enforced. The statutes of the legislature and the ordinances of our municipal
corporations seldom prescribe with much detail and particularity the duties annexed to
public offices; and it requires but little ingenuity to run nice distinctions between what
duties may and what may not, be considered strictly official; and if these distinctions are
much favored by courts of justice it may lead to great abuse.
23 Nev. 76, 83 (1895) State v. Shearer
municipal corporations seldom prescribe with much detail and particularity the duties
annexed to public offices; and it requires but little ingenuity to run nice distinctions between
what duties may and what may not, be considered strictly official; and if these distinctions are
much favored by courts of justice it may lead to great abuse. Not only has an officer under
such circumstances no legal claim for extra compensation, but a promise to pay him an extra
fee or sum beyond that fixed by law is not binding, though he renders services and exercises a
degree of diligence greater than could legally have been required of him. (1 Dillon's
Municipal Corporations, secs. 233, 234, and cases cited.)
The relator's claim being illegal the auditor had not only the legal authority, but it was his
duty to refuse to draw his said warrant on the county treasurer therefor. The question
discussed in the first briefs of the respective counsel as to whether or not the auditor has the
legal power to reject claims presented against the town of Reno, we do not pass upon, as that
question is not in this case.
The order appealed from is affirmed.
____________
23 Nev. 83, 83 (1895) Byrnes v. Douglass
[No. 1441.]
JAMES D. BYRNES and EDWARD MULVILLE, Appellants,
v. JOSEPH M. DOUGLASS, Respondent.
EjectmentDefense toCondemnation Proceedings.In an action of ejectment, where it is shown that,
subsequent to the commencement of the action, the defendant had begun proceedings for condemnation of
the premises in dispute, and that in these proceedings an order had been made authorizing him to retain
possession of the premises during the pendency of the proceedings, which were still pending, such order is
a defense to the action.
JurisdictionCollateral Attack.The petition for condemnation gave the court jurisdiction to make the order,
and, consequently, even if erroneous, it is not open to collateral attack.
IdemAverments of Petition, Not Proof of Them, Confers.It is the averments of the petition, and not proof of
them, that confers jurisdiction upon the courts.
EstoppelAssignee of Lessee.A party who takes a lease of a mine of which a tunnel is claimed and held as
part, and under that lease enters into possession of both mine and tunnel, is estopped to deny the title of his
lessors to the tunnel, and his assignee of the lease is equally estopped. (Syllabus by Bigelow, C. J.)
23 Nev. 83, 84 (1895) Byrnes v. Douglass
Appeal from the District Court of the State of Nevada, Storey county; Richard Rising,
District Judge:
Action by James D. Byrnes and others against J. M. Douglass. Judgment for defendant,
and plaintiffs appeal. Reversed.
Action of ejectment to recover possession of the Atlantic Consolidated Mining claim, and
of a tunnel known as the Atlantic Consolidated Tunnel, which begins some 300 feet from
said claim, and runs into and through the same. The complaint alleges plaintiffs' ownership of
the premises, ouster by the defendant, and that the tunnel was constructed by plaintiffs'
predecessors in interest in the mine, for the purpose of prospecting, developing, and working
the same, and that it is appurtenant to and a part of said mining claim. The answer admits
plaintiffs' ownership of the mine, but denies ouster therefrom. It admits that the tunnel was
constructed by plaintiffs' grantors, alleging that it began on what was known as the Cadiz
claim, then belonging to said grantors, and ran thence into the Atlantic claim, but that they
had abandoned and forfeited said Cadiz claim, and had abandoned the tunnel. It alleges that
the defendant's grantors had relocated the Cadiz, under the name of the Contact, and that
defendant had taken possession of the tunnel for the purpose of extending it into another
claim owned by him, and denies that it is appurtenant to or any part of the Atlantic claim.
Defendant also alleges that he has located the same as a tunnel right under the laws of
Congress, and he sets up a right to the possession of the part passing through the Atlantic
claim under an order made by the judge of the district court of Nevada, in and for Lyon
county, in condemnation proceedings commenced by him in said court against plaintiffs, for
the purpose of condemning a right of way through the claim, authorizing him to take
possession of the same during the pendency of the proceedings, which were still pending.
The evidence shows that the tunnel was originally partly constructed in 1862, for the
purpose of obtaining a supply of water for Silver City, and, after its use for that purpose was
abandoned, its owners used it for the purpose of prospecting and working the Atlantic claim,
then belonging to them; and that it has always since been in possession of the owners of
said claim until defendant took possession of it, and has always been claimed by them as
a part of said mine.
23 Nev. 83, 85 (1895) Byrnes v. Douglass
and working the Atlantic claim, then belonging to them; and that it has always since been in
possession of the owners of said claim until defendant took possession of it, and has always
been claimed by them as a part of said mine. The Atlantic claim has been patented, but no
mention of the tunnel is made in the patent. In 1876 the owners of the Atlantic located the
ground upon which the mouth of the tunnel was situated, under the name of the Cadiz. The
annual work not having been done on the Cadiz, it was relocated January 22, 1887, by T. P.
Mack, but he did no work on it, and it again became open to location. In March, 1890, the
then owners of the Atlantic leased the mine to W. H. Stanley, and placed him in possession of
the same, including the tunnel. In July, 1890, the Cadiz ground was again relocated by C. E.
Brown, under the name of the Contact, and he, in June, 1891, conveyed the same to Stanley
and one Millevich. In September, 1891, the defendant purchased from Stanley his interest in
the unexpired lease and his half interest in the Contact ground. Defendant then took
possession of both claims and of the tunnel. The court found that the tunnel was not
appurtenant to the mine, that the plaintiffs were not entitled to its possession, and gave
judgment for the defendant. Plaintiffs appeal.
W. E. F. Deal, for Appellants:
I. The respondent having taken possession as tenant of appellants was estopped from
denying appellants' tunnel right. (Rector v. Gibbon, 111 U. S. 276.)
II. One of the covenants of the lease, under which respondent held title to the tunnel, was
that he should, at its expiration, surrender the premises. He not only did not do this, but he
denied appellants' title and sought to acquire an adverse title to the land upon which the
mouth of the tunnel was situated. Respondent can only hold such title as trustee for
appellants.
F. M. Huffaker, for Respondent:
I. When respondent filed his supplementary answer, setting up the condemnation
proceedings, with a certified copy of the order of the district judge, giving him possession of
this very tunnel pending said proceedings, and also showing that appellants had removed
the proceedings into the U. S. Circuit Court, appellants could not maintain any action for
the recovery of the possession of the tunnel while said order remained in force, and all
questions as to title and compensation must be determined in the condemnation
proceedings.
23 Nev. 83, 86 (1895) Byrnes v. Douglass
this very tunnel pending said proceedings, and also showing that appellants had removed the
proceedings into the U. S. Circuit Court, appellants could not maintain any action for the
recovery of the possession of the tunnel while said order remained in force, and all questions
as to title and compensation must be determined in the condemnation proceedings. (Stats.
1875, 111.)
II. Appellants have no title to anything except what is contained in the sheriff's deed under
the Blackburn judgment. This did not include the Contact ground or any tunnel thereon.
By the Court, Bigelow, C. J. (after stating the facts):
The only part of the plaintiffs' mining claim which the defendant was detaining from them
at the commencement of the action is the tunnel above described. That, consequently, is all
there is in dispute. The order in the condemnation proceeding authorized the defendant,
during the pendency of those proceedings, to take possession of that part of the tunnel which
passed through the Atlantic mining claim. This order, if valid, would seem to be a complete
defense as to that part of the ground. Its validity is attacked only upon one point, and that is
that a tunnel constructed for the purpose of one mine cannot be condemned for the use of
another mine; and a long list of authorities are cited wherein that principle has been asserted.
We do not, however, deem it necessary to decide the point upon this appeal. As this is a
collateral attack upon the order, the question is not whether it is erroneous, but whether the
court had jurisdiction to make it. (Van Fleet, Coll. Attack, secs. 16, 17.) Condemnation
proceedings are commenced by the filing of a petition. (Gen. Stats., sec. 257.) Section 267
provides that at any stage of the proceedings the court may make an order placing the
petitioner in possession of the property upon his giving a sufficient bond. The petition filed
here alleged that the tunnel had been constructed by the defendant. If so, it probably would
not be contended that the right to maintain it was not subject to condemnation (Rand. Em.
Dom., sec. 118), and consequently subject to any order that might be lawfully made in the
proceedings. The evidence in this case tends to show that the allegation in the petition that
the defendant had constructed the tunnel is not true, but this is immaterial, as jurisdiction
to act comes from the averments of the petition, and not from proof of their truthfulness.
23 Nev. 83, 87 (1895) Byrnes v. Douglass
tends to show that the allegation in the petition that the defendant had constructed the tunnel
is not true, but this is immaterial, as jurisdiction to act comes from the averments of the
petition, and not from proof of their truthfulness. (Stuart v. Allen, 16 Cal. 474; Richardson v.
Butler, 82 Cal. 181; Van Fleet, Coll. Attack, sec. 60.) The proper procedure would, doubtless,
have been to have stayed this action until the application to condemn had been finally
disposed of, and probably that would have been done had either party asked it; but, as they
did not, we do not think the court erred in rendering judgment for the defendant as to that part
of the tunnel covered by the order. Should the defendant finally fail in the proceedings, this
judgment will probably be no bar to another action of ejectment.
As to that part of the tunnel outside the Atlantic claim it appears unnecessary to consider
the interesting question, argued at considerable length, of whether a tunnel run through the
public mineral lands of the United States by a mine owner, for the purpose of developing or
working his mine, can be taken from him by the subsequent location of the ground upon
which it is situated outside the boundaries of his claim. The evidence is clear that the tunnel
was constructed by the owners of the Atlantic mine, and was appropriated to and used for the
purposes of that mine for a number of years. Whenever the mine was conveyed, the
possession of the tunnel went with it. It was occupied and treated as a part of the mine, and, at
least as against all the world except such a subsequent locator, was part and parcel of it. The
evidence also shows, without contradiction, that, when Stanley took a lease of the property,
he was placed in possession of the tunnel as a part of his leasehold estate. Under these
circumstances, he was estopped to deny the title of his lessors. Having entered into possession
under the lease, the outstanding title purchased from Brown, whether good or bad, could not
have been asserted by him until after he had surrendered the possession to those from whom
he had obtained it. Such being the case, his assignee of the lease, the defendant, stands in no
better position, and is also estopped to deny that title; and, as no question is made that the
plaintiffs have succeeded to the title, he is equally estopped to deny their title. {Wood, Land
& Ten., sec.
23 Nev. 83, 88 (1895) Byrnes v. Douglass
estopped to deny their title. (Wood, Land & Ten., sec. 232; Tayl. Land. & Ten., sec. 91;
Bigelow, Estop. 396; Rector v. Gibbon, 111 U. S. 276.)
The fact that the defendant, at the same time that he obtained an assignment of the lease,
also purchased from the lessee, Stanley, a half interest in the Contact location, cuts no figure
in the case; for, having obtained the possession from him he is equally estopped, no matter
how many other titles he may have. The same principle will apply to the tunnel location. If it
has any validity in such a case as this, which is very doubtful, the defendant is estopped to
assert it.
Judgment reversed, and cause remanded for a new trial in accordance with this opinion.
____________
23 Nev. 88, 88 (1895) State v. LaGrave
[No. 1452.]
THE STATE OF NEVADA, ex rel. H. C. CUTTING, Relator, v.
C. A. LaGRAVE, State Controller, Respondent.
Traveling ExpensesSuperintendent of Public InstructionHotel Bills Not Included.Hotel bills incurred by
the superintendent of public instruction while staying at a place for the purpose of visiting schools, are not
a part of the actual traveling expenses, which, under Gen. Stats., sec. 1292, are to be allowed and paid to
that officer. (Syllabus by Bigelow, C. J.)
Original Proceeding. Application by the State, on the relation of H. C. Cutting,
Superintendent of Public Instruction, for mandamus against C. A. LaGrave, State Controller.
Writ refused.
The facts appear in the opinion.
Alfred Chartz, for Relator:
I. The words actual traveling expenses have been construed by all of respondent's
predecessors in office and by every legislature since the passage of the law to mean and to
include necessary hotel bills. The legislature has passed relief bills and did pay such expenses
when previous legislatures omitted to make appropriations for the same. These facts are
admitted, but it is claimed that they do not bind. On this point of difference we cite:
Sutherland on Statutory Construction, par. 309, last part; Sedgwick on the Construction of
Statutory and Constitutional Law, p.
23 Nev. 88, 89 (1895) State v. LaGrave
tion of Statutory and Constitutional Law, p. 227, note; also, Sutherland on Statutory
Construction, par. 419; State v. Gray, 21 Nev. 386, and cases cited.
II. An officer's salary is his private property, and the legislature could not have intended to
place duties upon a superintendent of public instruction which would compel him to expend
it in their performance, nor to limit his expenses in such manner as to make his personal
interests antagonistic to the proper performance of his duties.
Robt. M. Beatty, Attorney-General, for Respondent:
I. Every person, officer or not, must eat and sleep, and whether a state officer eats or
sleeps in one place or another is of no consequence to his employer, the state, for it pays him
his salary for his every official act, and it is reasonably supposed that out of his salary he
needs must pay his expenses of eating and sleeping. The law says it is his duty to leave home
on occasions, and what he would eat at home remains to his advantage uneaten so far as he is
individually concerned. But even say that it works a hardship, yet it is one of those hardships
imposed by law, and the officer should know the law's requirements before entering upon the
duties of the office, and if he does not and learns it only after being in office, if dissatisfied,
he can easily resign.
II. Relator is a salaried officer of the State. The statutes of Nevada allow certain officers
entitled to salaries or per diem traveling expenses or expenses in traveling, i. e., fare or
transportation, namely: District judges, superintendents of public instruction and officers
having in charge convicts or insane persons, but to officers who receive no salary or per diem,
such as regents and members of the board of visitors to the university, as follows: Regents, no
salary, but necessary expenses in attending meetings of their board (Stats. 1887, p. 44).
University visitors, no salary, no traveling expenses, but board and lodging while at the
university. (Stats. 1895, p. 41, sec. 5.) Officers with convicts or insane persons in charge
received mileage until 1875 and then per diem, eight dollars per day, and expenses in (not
while) traveling and necessary expenses of transportation of prisoners. This was amended
in 1891 to per diem, five dollars per day and the same expenses for traveling.
23 Nev. 88, 90 (1895) State v. LaGrave
per day and the same expenses for traveling. (Stats. 1875, p. 64; 1891, p. 25.) District judges,
salary and necessary expenses paid for traveling by public conveyances. (Stats. 1885, p. 61.)
And last, superintendent of public instruction, salary and actual traveling expenses. (Gen.
Stats. 1292.) Hence it is readily seen that without any interpretation or construction of the
statute under consideration, save the plain ordinary meaning of its exact language, relator is
entitled to actual traveling expenses; not even actual expenses even while traveling, but
actual traveling (not any other of whatsoever kind or character) expenses.
By the Court, Bigelow, C. J.:
Original application for a writ of mandamus to compel the respondent, as state controller,
to draw a warrant upon the treasury in favor of relator, for certain expenses claimed to be
payable to him under the following statute: It shall be the duty of the superintendent of
public instruction to visit each county in the state, at least once in each year, for the purpose
of visiting schools, of consulting county superintendents, of lecturing and addressing public
assemblies on subjects pertaining to public schools; and the actual traveling expenses
incurred by the superintendent in the discharge of his duty shall be allowed, audited and paid
out of the general fund, in the same manner as claims upon said fund are now allowed,
audited and paid; provided, that the sum so expended in any one year shall not exceed one
thousand dollars. (Gen. Stats. 1292.)
The affidavit for the writ states that the relator visited the schools at Wadsworth and
Virginia City, and while at those places necessarily incurred certain expenses at the hotels for
board and lodging. The statute permits the payment of actual traveling expenses. Do these
items come within the meaning of those words? It seems to us very clear that they do not.
Undoubtedly they are a part of the expenses of the trips which the legislature required the
relator to make, and which that body must have known would necessarily be incurred by him
in making his visits. It must also have known that if he addressed public assemblies expense
would necessarily be incurred in providing a hall for that purpose, for fuel, lights, etc.
23 Nev. 88, 91 (1895) State v. LaGrave
for fuel, lights, etc. But it seems to have been the intention that none of these expenses should
be borne by the State. It is not the expense of the trip, or the expense incurred after the
superintendent arrives at his destination, that is to be paid, but his actual traveling
expenses. Travel, in visiting a school, is going to and returning from the place where the
school is situated. But, after he arrives there, he certainly is not, during his stay, traveling;
consequently his expenses, while there, are not incurred in traveling. But to make the matter
still more certain, and apparently for the purpose of insuring that no general expense of the
trips should be included, it is provided that the traveling expenses must be actual. There are
to be no constructive traveling expenses paid, but only such as are actual; that is, such as are
real, bona fide, genuine expenses of travel. Had it been the intention to pay all the legitimate
expenses of the superintendent's trips, these words of limitation would not have been used.
Whatever else may be included in the term actual traveling expenses, we think it was not
intended to include hotel expenses while staying at a place for the purpose of visiting the
schools or discharging the other duties of the office.
It was said in argument that it has been the custom for many years past to allow and pay
such items so incurred by the superintendents, and that such construction of the statute by the
officers having power to allow claims against the state is entitled to great weight in
determining its meaning.
Where property rights have been built up in reliance upon an erroneous construction of a
statute by public officers, or where overturning such a construction would unsettle many
important laws, and consequently cause loss and hardship to the community, these
considerations sometimes press quite heavily upon the courts, especially if the true
construction was really doubtful. But where such is not the case, and where the statute is as
clear as we deem this to be, to so hold would simply be to say that as the state has been, for a
long time, paying these illegal claims, it must continue to do so. Contemporaneous
construction, no matter how long continued, would never justify such a conclusion as that.
(Endlich, Inter. Stats., sec. 361; Albright v. Bedford County, 106 Pa. St. 5S2.)
23 Nev. 88, 92 (1895) State v. LaGrave
Pa. St. 582.) This is said upon the assumption that the statement concerning the payment of
the claims is true, as seems to be admitted, or at least not denied, by the attorney-general; but
no proof has been made of it, and we can hardly be expected to take judicial notice of the fact.
This would also seem to be a case where it is the duty of the controller to audit the claim
before the owner is entitled to a warrant (Gen. Stats. 1811; State v. Doran, 5 Nev. 399), but
the point has not been raised, and we have not considered it.
Writ refused.
____________
23 Nev. 92, 92 (1895) Roeder v. Stein
[No. 1446.]
JOHN ROEDER, Appellant, v. CHARLES STEIN,
Respondent.
FindingsWithin the IssuesAppropriation, Diversion, Wasteful User of WaterDamages.In an action to
restrain the wrongful diversion of water, and for damages for past diversion, where the complaint alleges
plaintiff's prior appropriation, defendant's diversion, and the amount of damages thereby occasioned, and
the answer consists simply of denials and an allegation of appropriation by defendant, a finding that
plaintiff's manner of using the water has been wasteful, and that all or a part of his damage has been
occasioned thereby, is within the issues.
Use of WaterPower of Court to Regulate Future Use.In such a case, where it appears that the plaintiff made
the first appropriation, by means of a certain ditch, of enough water to irrigate 125 acres of land, and that,
subject thereto, the defendant has made an appropriation, the court has the power to direct that the plaintiff
must use the water through that ditch, or by other means that will not waste more than an ordinary ditch.
IdemRights of First AppropriatorSurplus Water.The first appropriator is only entitled to the water to the
extent that he has use for it when economically and reasonably used. When he has that, he cannot prevent
others from making use of the surplus.
IdemObligations of First Appropriator as to Subsequent Acquired Rights.After others have acquired rights
to the use of the water of a stream, the first appropriator for irrigation purposes cannot, to their detriment,
change the method by which he conveys it to his land, so as to increase the waste that naturally occurs in
such conveyance.
Findings of FactConclusions of LawWhat Should Cover.Findings of fact and conclusions of law should
cover the issues in the case, and be made separate from the opinion of the judge.
AnswerWhen Verified, Should Not Deny True Allegations.A verified answer should not deny facts
unquestionably true. Parties doing so lay themselves liable to the penalties of the criminal law. (Syllabus by
Bigelow, C. J.)
23 Nev. 92, 93 (1895) Roeder v. Stein
Appeal from the District Court of the State of Nevada, Lincoln county; G. F. Talbot,
District Judge:
Action by John Roeder against Charles Stein. Findings for defendant, and from an order
refusing a new trial plaintiff appeals. Affirmed.
The facts sufficiently appear in the opinion.
George S. Sawyer, for Appellant:
I. The decision is against law. First: The original findings of fact are entirely outside of the
issues made by the pleadings, and, consequently, no judgment or decree based upon them
could be upheld. (Marshall v. Golden Fleece, 16 Nev. 173-177; Ortega v. Cordero, 88 Cal.
225.) Second: The additional findings are contradictory of the original findings, and, taken
together, they cannot support a judgment or decree. (Authors v. Bryant, 22 Nev. 242.)
II. The court below erred in admitting or considering any testimony in relation to water
rights and ditches other than the particular one in controversy by the pleadings.
III. The decision is not supported by, but is contrary to, the evidence. It is uncontradicted
that the plaintiff used the water, the diversion of which is complained of, for more than five
years prior to the conversion, which is also uncontradicted. The plaintiff testifies that the
diversion damaged him much more than the ad damnum clause of the complaint charges, and
this is uncontradicted. The nearest the defendant comes to contradicting it is that plaintiff
might have decreased the damage by getting water somewhere else. Under these facts, as
shown by the testimony, the plaintiff should have had a decision in his favor, in all respects as
prayed for in his complaint. The additional findings are entirely unsupported by the evidence,
and are contrary to the theory of either plaintiff or defendant. They would virtually entitle
plaintiff to the judgment and decree prayed for, for it is not contended that enough water
comes down from the Hiko Hill to water 145 acres of land, to which, according to the
additional findings, plaintiff is entitled by virtue of priority of appropriation. (Smith v. Logan,
18 Nev. 154; Jewett v. Mahan, 20 Nev. 89; Reno S. Works, v. Stevenson, 20 Nev. 269.)
Thomas J.
23 Nev. 92, 94 (1895) Roeder v. Stein
Thomas J. Osborne, for Respondent:
I. The findings of fact are not outside of the case made and embraced within the issue, and
the cases of Marshall v. Golden Fleece M. Co., in 16 Nev., and Ortega v. Cordero, 88 Cal.,
cited by appellant, do not sustain this objection.
II. The principle of equitable estoppel invoked in the latter case applies here. The case at
bar was tried throughout on the theory that plaintiff relied on water from the Hiko spring,
conveyed through the Ferguson ditch, the waters of which were composed, in part only, of the
water escaping from the mill ditch, and this issue, as shown by the record on appeal, was
actually and intentionally tried by the introduction of pertinent evidence, and that appellant
here consciously participated and induced the respondent to believe the issue had been
properly made.
III. In the absence of any objection thereto, the court did not err in admitting testimony
relating to other water ditches than that mentioned in the complaint, and no objection being
made to such testimony at the trial, appellant cannot raise it for the first time on appeal. The
consideration of the testimony was necessary, touching as it did on matters essential to the
cause of action and naturally following the allegations of the complaint. (Jones v.
Goodenough, 7 Nev. 324; Estis v. Simpson, 13 Nev. 472; Longabaugh v. V. & T. R. R. Co., 9
Nev. 271; Reese v. Kinkead, 20 Nev. 65.)
By the Court, Bigelow, C. J.:
The complaint alleges prior appropriation of the water of a certain stream for irrigation
purposes, defendant's diversion of it, and that plaintiff has been damaged thereby in the sum
of $500. The answer denies the appropriation or damage, and alleges that defendant has
appropriated, and is entitled to use, enough of the water to irrigate forty acres of land.
The court found that the plaintiff had, through the Ferguson ditch, made the first
appropriation to the extent of irrigating one hundred and twenty-five acres; that subsequent
thereto, and in 1890, the defendant had appropriated enough to irrigate forty acres; that since
1890, and during the time the defendant has been using the water, the plaintiff has allowed a
larger amount than that diverted by defendant to run to waste, by running it into a large
pond or lake, from which he used it, instead of running it directly through the ditch to his
land.
23 Nev. 92, 95 (1895) Roeder v. Stein
allowed a larger amount than that diverted by defendant to run to waste, by running it into a
large pond or lake, from which he used it, instead of running it directly through the ditch to
his land. As conclusion of law (apparently, for the conclusion of fact, of law, and the court's
opinion are all thrown together, so that it is difficult, if not impossible, to separate one from
the other) the court found that the plaintiff had the first right to enough of the water to irrigate
one hundred and twenty-five acres, said water to be conveyed to the plaintiff's land through
the Ferguson ditch, or by other ditches or means that will not waste more than an ordinary
ditch. It also found that plaintiff having failed to keep his ditch in repair, or to prevent the
water from spreading over defendant's meadow and running into the lake, is not entitled to
any damages, and that subject to plaintiff's rights, the defendant is entitled to enough water
to irrigate forty acres.
No decree has been entered, and the appeal is from an order refusing the plaintiff a new
trial.
The appellant claims that the findings are not within the issues made by the pleadings, but
as there has been no oral argument, and in his brief he has not specified the particular finding
or findings to which he objects, it is not easy to determine to just what he refers; but probably
it is to the finding that he has wasted the water, and to the direction that he must thereafter
use it in a particular manner, as there can be no possible question of the pertinency of the
other findings.
But, although there is nothing said in the pleadings upon this matter, it seems to us that the
question as to the waste of the water, both past and future, was clearly in the case. In the first
place, the complaint alleges $500 damages, and the plaintiff testified to more than that
amount of loss to his crops caused by the want of water. But if he had permitted a portion of
the water that did come to him to run to waste, he could not hold the defendant responsible
for the damage thereby occasioned. The defendant is only responsible for the damage
occasioned by his own acts. The defendant denied that his acts had caused the plaintiff any
damage whatever, and in support of that denial it was proper to him to show, if he could,
that a portion or all of the plaintiff's loss was the result of his own uneconomical use of
the water, and consequently it was proper for the court to find whether such was the
case.
23 Nev. 92, 96 (1895) Roeder v. Stein
proper to him to show, if he could, that a portion or all of the plaintiff's loss was the result of
his own uneconomical use of the water, and consequently it was proper for the court to find
whether such was the case.
The learned trial judge seems to have been of the opinion that if the plaintiff wasted as
much water as the defendant had diverted, that that would be a complete answer to the
plaintiff's claim for damages. While we cannot agree with that view and are of the opinion
that if defendant's acts had caused the plaintiff damage in addition to that occasioned by his
own negligence, the defendant would be responsible for that part, still the finding, as far as it
goes, is within the issues. It covers at least the loss upon forty acres of the plaintiff's land, as
the finding is that defendant irrigated that amount, and that plaintiff wasted more than the
amount of water used by defendant, and it may have been intended to cover all of plaintiff's
loss.
Possibly the appellant's counsel is of the belief that the plaintiff, having made the first
appropriation, is entitled to have the water come down to him to the extent of his
appropriation, whether he has use for it or not. If so, he is mistaken. Water is too precious in
this arid climate to permit its being unnecessarily wasted. The findings do not show how
much water there is in the stream altogether, or whether there is more than enough to irrigate
the plaintiff's one hundred and twenty-five acres. If there is not, then when he is irrigating that
amount he is entitled to the use of it all. The same is the case when he is irrigating less than
one hundred and twenty-five acres, if he needs it all for what he does irrigate. But whatever
he may be irrigating he is only entitled to the amount he needs, economically and reasonably
used, and when he has that, he cannot prevent others from using the surplus. (Barrows v. Fox,
98 Cal. 63; Natoma Water & M. Co. v. Hancock, 101 Cal. 32.)
Nor do we think that there was any error in requiring the plaintiff to use the water in any
particular manner hereafter. The evidence shows that the original method of the plaintiff's use
during the irrigation season was through the Ferguson ditch, and that this is the most direct
and economical method of conveying it to the land during that time. (During the winter time
the plaintiff runs the water into the lake, which he uses as a reservoir.
23 Nev. 92, 97 (1895) Roeder v. Stein
winter time the plaintiff runs the water into the lake, which he uses as a reservoir. This use is
not in question here.) Running it through the ditch continued to be the principal method of
using it up to 1890, when defendant made his appropriation. Since then the system has been
changed so that the principal method is first to turn it into the lake and then use it from
thence, and this is what the court finds has caused the unnecessary waste. As already
remarked, water is too precious to permit it being wasted. Conveying it through a ditch even
will always cause some loss, and if the distance is great, or the soil loose or porous, the loss
will be considerable. This, within any reasonable expense, is generally unavoidable. But,
however this may be, if the appropriation had been made before others acquired rights in the
stream, after that no change can be made to their detriment. The first appropriator must
continue to use it in at least as economical a manner as before, and cannot change the method
of use so as to materially increase the waste. Such a change may be forbidden, and parties
may be compelled to keep their flumes and ditches in good repair, so as to prevent any
unnecessary waste. (Barrows v. Fox, supra.) This is all that has been done here.
There are two matters of practice involved in this case to which we desire to call the
attention of the district courts and of the profession. The first is a failure to make distinct
findings of fact and conclusions of law, separate from the opinion of the judge as to what the
decision should be upon those facts. The writer of this opinion confesses that such was very
largely his own custom when upon the district bench, and that he then saw no objection to it,
but experience in the appellate court has demonstrated that serious objections do exist. It not
only adds considerably to the labor of examining cases upon appeal, which may be deemed a
minor consideration, but it increases the liability that the facts will not be correctly
understood, and hence result in a miscarriage of justice.
The trial judge usually decides upon some one point which he considers controlling, and
this point is the only one that will generally be fully covered in an opinion. Then if the
appellate court takes a different view of that point, as to the other facts the court is left
entirely in the dark, or it must pick them out from the evidence, which can never be as
well understood as when heard in court, as given and illustrated by the witnesses.
23 Nev. 92, 98 (1895) Roeder v. Stein
other facts the court is left entirely in the dark, or it must pick them out from the evidence,
which can never be as well understood as when heard in court, as given and illustrated by the
witnesses. The findings should cover all the issues in the case, and should be quite separate
from the opinion. We do not say this to discourage the writing of opinions, as we often find
them of great assistance, and it is always satisfactory to know just what view was taken of the
case by the trial court.
The other is a feature that we think deserves particular censure from the courtsthe broad
and unqualified denials in the answer that the plaintiff and his grantors had been the owners
or in possession of the lands described in the complaint, or had appropriated any part of the
water in controversy. It seems to have been admitted upon the trial that he did own the land,
and had been in the possession thereof for many years, and it was proven beyond question
that he had appropriated a large portion, if not all the water. The fact that the answer was
made upon information and belief does not help the matter any, for the evidence shows that
the defendant must have known all about it, and could have had no such information or
belief. If the attorney knew of the facts, he is even more culpable than the client, for drawing
and permitting him to swear to such an answer. The reason for providing for verified
pleadings is that facts that are true shall be admitted, and thereby the parties saved the
expense of proving them, and the court and all connected with the case the loss of time
occasioned by it being done. Such practice as this, although unfortunately too common, is
utterly subversive of the principles of the reformed procedure, and really subjects the parties
to the penalties of the criminal law. The defense here could have been as well made under a
truthful answer, as under one so largely false.
The order appealed from is affirmed.
____________
23 Nev. 99, 99 (1895) State v. Nye
[No. 1453.]
THE STATE OF NEVADA, ex rel. J. H. SUTHERLAND, Relator, v. HENRY A. NYE,
County Auditor of Storey County, Respondent.
Constitutional LawSupport of State Militia.The act of March 6, 1893, sec. 41 (Stats. 1893, p. 96), provided
that the expense of maintaining an armory for militia companies should be paid out of the general fund of
the several counties on presentation of the auditor's certificate to the treasurer that such expenses had been
allowed by the board of county commissioners. The act of March 18, 1895, sec. 12 (Stats. 1895, p. 109,),
expressly repeals this section of the act of 1893, and provides (Sec. 11) that all claims for such expenses
shall be audited by the board of military auditors, and paid out of the general fund in the state treasury upon
warrants drawn therefor by the state controller. Held, that the repealing act of 1895 is not in violation of
article XII, sec. 1, of the state constitution, which requires that the legislature shall provide for the
organization and disciplining of the militia of this state and for the safe keeping of the public arms, and is
valid, though it makes no appropriation for the payment of these expenses out of the state treasury, as
provided for in section 11 of the said act of 1895.
Legislative ActEnrolled BillConclusive Evidence of Passage of Act.An enrolled bill, signed by the
presiding officers of the two houses, and by the secretary of the senate and clerk of the assembly, is, when
approved by the governor, and filed in the office of the secretary of state, conclusive evidence of the
passage of the act as enrolled.
Original Proceeding. Application by the State, on the relation of J. H. Sutherland, for a
writ of mandate to compel Henry A. Nye, as Auditor of Storey county, to draw his warrant for
a certain claim allowed by the Board of County Commissioners. Denied.
The facts sufficiently appear in the opinion.
J. Poujade, for Relator.
Langan & Knight, for Respondent.
By the Court, Bonnifield, J.:
The relator applies to this court for a writ of mandamus to require the respondent to audit
and allow and draw his warrant therefor, upon the county treasurer of Storey county, a certain
claim allowed by the board of county commissioners of said county in favor of Company A,
First Regiment, Nevada National Guard, in the sum of seventy-five dollars, for the rent of an
armory for said company for the month of April, 1S95.
23 Nev. 99, 100 (1895) State v. Nye
for the rent of an armory for said company for the month of April, 1895.
The application is made upon the theory and contention that section 41 of an act entitled
An act relating to the national guard and enrolled militia, approved March 6, 1893, is a
valid and subsisting part of said act. If this theory be correct, then the showing made by
relator's affidavit is sufficient under the provisions of said section to require the writ to issue.
Said section 41 provided that the expenses within a specified limit, of procuring and
maintaining an armory for the organized militia companies, should be paid out of the general
fund of the several counties in which such organizations are maintained, on presentation of
the auditor's certificate to the treasurer that such expense has been allowed by the board of
county commissioners, and that such payments should be allowed the treasurer in his
settlement with the controller and state treasurer. But section 11 of an act amendatory of and
supplementary to the above-entitled act of 1893, approved March 18, 1895, provides that all
claims for such expenses shall be audited and approved by the board of military auditors and
paid out of the general fund in the state treasury, upon warrants drawn therefor by the state
controller. Section 12 of the act of 1895 in terms repeals said section 41 of the act of 1893.
Counsel for respondent interposes a general demurrer to relator's affidavit. Counsel for
relator argues, in effect, that the act of 1895 is unconstitutional, because: (1) It repeals said
section 41 which requires these expenses to be paid, in the first instance, out of the county
treasury and makes no appropriation for their payment out of the funds in the state treasury as
provided for by section 11 of the act, and thus contravenes section 1, art. XII, of the
constitution, which provides: The legislature shall provide by law for organizing and
disciplining the militia of this state, for the effectual encouragement of volunteer corps, and
the safe keeping of the public arms. (2) The memoranda, made by the secretary of the senate
and clerk of the assembly, on the enrolled act, do not show that the different steps were taken
by the legislature which the constitution requires in the consideration and passage of
bills.
23 Nev. 99, 101 (1895) State v. Nye
taken by the legislature which the constitution requires in the consideration and passage of
bills.
In answer to the first of the above grounds of objection, it may be simply said, that there is
certainly nothing in the constitution to prohibit the legislature from taking the matter of
auditing and paying these claims for rent of armories out of the hands of said county officers
and placing the same in the hands of the board of military auditors and the proper state
officers.
The legislature having failed to make the necessary appropriation for the payment of the
rent of armories the claimant will have to await the action of the legislative department, as all
others have to do who have claims against the state for the payment of which no
appropriation has been made, or for which the appropriation has been exhausted. The courts
are powerless to furnish relief in such cases, however much the delay in payment may cause
inconvenience or work a hardship to the claimants.
The second ground of objection is equally untenable. The memoranda referred to are
immaterial. They are not evidence of the existence or non-existence 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 its 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.
The rule, that in testing the validity of a statute the courts will not look beyond the statute
roll, solemnly attested in accordance with the provisions of the constitution, is well settled in
this State by the following cases: State ex rel. George v. Swift, 10 Nev. 176; State ex rel.
Cardwell, 18 Nev. 34.
In determining that said section 41 has been repealed, and that the respondent has no
authority to audit the claim in question or to draw his warrant therefor, we are not to be
understood as recognizing that that section would be valid if it had not been repealed, for it is
a grave question whether its provisions do not conflict with two plain provisions of the
constitution.
23 Nev. 99, 102 (1895) State v. Nye
its provisions do not conflict with two plain provisions of the constitution. But as it is not
necessary to pass upon the question of their constitutionality in this case, we do not do so.
We are of opinion that the demurrer to the affidavit must be sustained, and the writ of
mandate prayed for denied.
It is so ordered.
____________
23 Nev. 103, 103 (1896)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
JANUARY TERM, 1896.
____________
23 Nev. 103, 103 (1896) State v. Vaughan
[No. 1447.]
STATE OF NEVADA, Respondent, v. ALFRED
VAUGHAN, Appellant.
Criminal LawJuror Excused After Admission of Evidence.After a jury has been sworn, and evidence
admitted in a capital case, the court may, in its discretion, excuse a juror against defendant's objection, on
proof that he is disqualified, the fact of his disqualification having come to the knowledge of the
prosecution during the trial.
IdemJuryJuror Discharged After Evidence IntroducedError to Retain Balance Without Allowing
Defendant to Examine.When in a capital case a juror, because disqualified, is excused by the court
against defendant's objection, after evidence has been admitted, it is error to accept the other jurors without
first discharging them and giving the defendant the privilege asked for of re-examining them as to their
then state of mind before being re-sworn to try the case with the new juror.
Appeal from the District Court of the State of Nevada, Lander county; Charles E. Mack,
District Judge:
Alfred Vaughan was convicted of murder, and appeals. Reversed.
The facts sufficiently appear in the opinion.
23 Nev. 103, 104 (1896) State v. Vaughan
James F. Dennis and J. H. MacMillan, for Appellant:
I. The statement of the district attorney, in reference to the juror Flint, was contrary to law,
as there was an assumption of the guilt of the prisoner while stating a public offense against a
juror duly qualified and sworn to try the issues between the state and prisoner, which should
not have been permitted at that time in the trial of so important a case. (Grosse v. State, 11
Tex. App. 377-399.)
II. No challenge of the juror was made, and there was nothing before the court; no issue of
law or fact when witnesses were put upon the stand, and the testimony of the witnesses was
prejudicial and irrelevant to the issues between the state and appellant. (People v. Hamilton,
62 Cal. 383; People v. Reynolds, 16 Cal. 129.)
III. Could the court look into the juror's mind and say that it had not changed since the
declaration sworn to by witnesses Kassel and Moss? Was there anything to justify the court,
in the presence of a jury it had then decided to retain for the future trial of the accused, in
saying that the juror had perjured himself in order, if possible, to acquit the defendant?
IV. Take the entire proceedings against the juror Flint, his examination, the statement of
counsel in reference to him, the testimony of the witnesses against him, and it fails to show
any necessity for his discharge from the jury. He speaks of having had a different state of
mind when on his voir dire, but says he had got rid of it. The testimony and proceedings as to
his past declaration do not prove or tend to prove that his mind was not, at that time, equally
balanced between the state and defendant. There was not that imperative necessity for his
discharge that the law contemplates in such cases. (Rice on Evidence, vol. 4, sec. 616;
O'Brien v. Commonwealth, 9 Bush. 333; Pizana v. State, 20 Tex. Ct. App. 139.)
V. The discharge of juror Flint, against the objection of the defendant, terminated the
legal existence of the jury sworn to try the issues between the state and accused, a jury that
had heard the opening statement of counsel for the state and the testimony of all the witnesses
against the prisoner.
VI. What becomes of the constitutional guarantee of the right of trial by jury?
23 Nev. 103, 105 (1896) State v. Vaughan
right of trial by jury? Can it be for a moment supposed that eleven men, who heard all the
state's testimony, were indifferent or impartial at the beginning of the trial which resulted in
the conviction of appellant, or will it be assumed that the instruction of the trial judge purged
and rendered the minds of the eleven jurors a blank as to what had transpired on the previous
presentation of the state's case. If these eleven jurors attended to their duty on the first
presentation of the case, they could not have been impartial at the beginning of the trial.
(Commonwealth v. Hussey, 13 Mass. 221; People v. Allen, 43 N. Y. 33; State v. McClear, 11
Nev. 50.)
VII. The trial court refused to allow defendant to examine the eleven old jurors as to their
state of mind after the discharge of the juror Flint, or the right to exercise any peremptory
challenges to the reconstructed jury or the new part of it.
VIII. The only safe way to prevent an injustice and to secure an impartial jury, such as is
guaranteed to us by the constitution of our country, is to discharge the entire twelve men,
under the circumstances of this case, and empanel a new jury, allowing to the defendant his
statutory right of challenge, peremptory and for cause. (State v. Allen, 46 Conn. 549.)
Robt. M. Beatty, Attorney-General, W. D. Jones, District Attorney, and D. S. Truman, for
Respondent:
I. The court was fully authorized to draw another juror to take Flint's place. (Gen. Stats.
4262; State v. Pritchard, 16 Nev. 101; State v. Vaughan, 22 Nev. 285.)
II. The eleven jurors had been passed by both the state and the defendant, and had been
sworn. No attempt was made to show that any one of them had been disqualified; the fact that
Flint had been shown to be disqualified raised no presumption that any of the other eleven
jurors were disqualified. No one had a right to examine any of those eleven jurors at that
stage of the trial without showing good cause, and no cause being shown, it was not error to
refuse the request. (Crim. Prac. Act, sec. 334; State v. Marks, 15 Nev. 33; State v. Pritchard,
16 Nev. 101.)
III. The eleven jurors had been sworn, and this court long ago, decided in State v.
Anderson, 4 Nev. 65
23 Nev. 103, 106 (1896) State v. Vaughan
long ago, decided in State v. Anderson, 4 Nev. 65, that: The allowance of a peremptory
challenge to a juror who has been accepted and sworn is not a matter of right and a refusal on
the part of the court to allow it is not error. (People v. Reynolds, 16 Cal. 128; State v.
Hasledahl, 52 N. W. Rep. 315.)
IV. No cause was shown, or attempted to be shown, why any one or all of the eleven
jurors should be peremptorily challenged, and unless good cause be shown, says our statute
(Sec. 334, Crim. Prac. Act), it is not error to refuse it. (State v. Marks, 15 Nev. 33; State v.
Pritchard, 16 Nev. 101.)
V. It was unavoidable for the proof as to Flint's disqualification to be made to the court in
Flint's presence and in the presence of the other eleven jurors. At that time Flint was as much
a part of the jury as any of the other eleven, and there was no jury without him and each and
all of the other eleven jurors; they could not legally separate (Sec. 340, Crim. Prac. Act), until
the urgent necessity arose, was proven, and found by the court. (State v. Pritchard, 16 Nev.
101.)
By the Court, Belknap, J.:
Respondent was convicted of murder of the first degree.
At the trial, after a jury had been empaneled and sworn and the witnesses examined, the
district attorney called the attention of the court to the fact that one of the jurors was
disqualified and asked leave to present testimony in support of the charge. Upon permission
given, witnesses were examined whose testimony tended to show that A. A. Flint, the juror
against whom the investigation was directed, had said several months prior that the defendant
was guilty; that he had conscientious scruples against capital punishment and would never
vote for a conviction of murder of the first degree were he one of the jury. The court excused
him, another was substituted, the witnesses were re-examined, a verdict of murder of the first
degree returned, and judgment entered thereon. Various exceptions were taken in behalf of
the appellant to the rulings of the court in this particular.
First, as to the discharge of juror Flint.
Lord Coke lays down the rule that a jury sworn and charged in case of life or member
cannot be discharged by the court or any other, but they ought to give a verdict."
23 Nev. 103, 107 (1896) State v. Vaughan
charged in case of life or member cannot be discharged by the court or any other, but they
ought to give a verdict. (1 Inst. 227b.) Following Coke, Hawkins, in his Pleas of the Crown,
2d vol. 568, says that no juror can be challenged either by the king or prisoner without
consent after he hath been sworn, * * * unless it be for some cause which happened since he
was sworn.
In Wharton's Case (Yelverton, 23) one of the jurors that had been accepted and sworn was
challenged for a cause that was in esse when he was sworn, but unknown at the time to the
queen's counsel. The challenge was denied.
But in the case of the two Kinlocks (Foster, 22) the power of the court to discharge jurors
underwent careful examination, and it was decided that the general rule as laid down by Lord
Coke had no authority to warrant it and could not be universally binding. In that case it was
determined that the court had power to withdraw a juror at the request of the prisoners for the
purpose of imparting to them a defense which they could not otherwise have taken.
The decisions in this country sustain the position that a juror may be excused when his
detention upon the jury would defeat the ends of public justice.
In U. S. v. Morris, 1 Curtis, 23, it was decided that after witnesses had been examined the
prosecuting officer could, in the discretion of the court, examine witnesses upon the question
of the bias of a juror.
In discussing the subject, after stating the common law rule, Judge Curtis said: But it by
no means follows that it is not in the power of the court, at the suggestion of one of the
parties, or upon its own motion, to interpose and withdraw from the panel a juror utterly unfit,
in the apprehension of every honest man, to remain there. Suppose a prisoner on trial for his
life should inform the court that a juror had been bribed to convict himthat the fact was
unknown to him when the juror was sworn and that he had just obtained plenary evidence of
it, which he was ready to lay before the court, is the court compelled to go on with the trial?
Suppose the judge, during the trial, obtains, by accident, personal knowledge that one of the
jurors is determined to acquit or convict without any regard to the law or the evidence, is he
bound to hold his peace?
23 Nev. 103, 108 (1896) State v. Vaughan
dence, is he bound to hold his peace? In my judgment such a doctrine would be as wide of the
common law as it would be of common sense and common honesty. The truth is that this
rule, like a great many other rules, is for the orderly conduct of business. There must be some
prescribed order for the parties to make their challenges, as well as to do almost everything
else in the course of a trial. As matter of right, neither party can deviate from this order. And
it is the duty of the court to enforce these rules, which are for the general good, even if they
occasion inconvenience and loss in particular cases. But there goes along with all of them the
great principle that, being designated to promote the ends of justice, they shall not be used
utterly to subvert and defeat it; being intended as a fence against disorder, they shall not be
turned into a snare; they do not tie the hands of the court, so that when, in the sound
discretion of the court, the public justice plainly requires its interposition, it may not
interpose; and it would be as inconsistent with authority as with the great interests of the
community to hold the court restrained.
A very eminent English judge has treated this rule concerning challenges just as I believe
it should be treated. Chief Justice Abbot says: I have no doubt that if, from inadvertence, or
any other cause, the prisoner or his counsel should have omitted to make the challenge at the
proper moment, the strictness of the rule which confines him to make the challenge before the
officer begins to administer the oath, would not be insisted on by the attorney-general, or, if
insisted on by him, would not be allowed by the court.' (The Derby Case, Joy on Confessions,
etc., 220.) That is, like other rules of procedure in trials, it is in the power of the court to
dispense with it when justice requires.
In U. S. v. Coolidge, 2 Gall. 363, Lee, an indispensable witness to the government, refused
to be sworn. Judge Story said: The question is simply this. A party is on trial before a jury,
and a circumstance occurs, which will occasion a total failure of justice if the trial proceed;
have the court, in such an emergency, power to withdraw a juror? It has been stated from the
bar that, in capital cases, the court have not this power; but in a case in Foster's Crown Law,
and in several other cases, it has been held that they have.
23 Nev. 103, 109 (1896) State v. Vaughan
and in several other cases, it has been held that they have. In misdemeanors, there is certainly
a larger discretion, and until the cases just mentioned, capital trials were generally supposed
to be excepted. It is now held, that the discretion exists in all cases, but is to be exercised only
in very extraordinary and striking circumstances. Were it otherwise the most unreasonable
consequences would follow. Suppose, that in the course of the trial the accused should be
reduced to such a situation as to be totally incapable of vindicating himselfshall the trial
proceed, and he be condemned? Suppose a juryman taken suddenly ill, and incapable of
attending to the cause; shall the prisoner be acquitted? Suppose that this were a capital case,
and that, in the course of the investigation, it had clearly appeared, that on Lee's testimony
depended a conviction or an acquittal; would it be reasonable that the cause should proceed?
Lee may, perhaps, during the term, be willing to testify. Under these circumstances, I am of
opinion that the government is not bound to proceed, but that the case be suspended until the
close of the term, that we may see whether the witness will not consent to an examination.
In State v. Allen, 46 Conn. 531, upon the trial, after witnesses had been examined, the
court heard evidence touching the disqualification of a juror, who had before being sworn
expressed the opinion that defendant was guilty. The disqualification was proven, the juror
excused, and the jury discharged.
In State v. Bell, 81 N. C. 591, it was held that the duty of courts to guard the
administration of justice against fraudulent practices was an exception to the rule that a jury
sworn in a capital case cannot be discharged without the prisoner's consent until they have
given a verdict. So when a juror had fraudulently procured himself to be selected for the
purpose of acquitting the prisoner the juror was properly excused.
In People v. Ollcott, 2 Johns. Cases, 301, Justice Kent stated his conclusions as follows: I
conclude, then, that as no general rule or decision that I have met with exists to the contrary
in a case of misdemeanor, and as the rule, even in capital cases, abounds with exceptions, and
is even questioned, if not denied, by the most respectable authority, that of nine of the judges
of England, it must from the reason and necessity of the thing belong to the court, on
trials for misdemeanors, to discharge the jury whenever the circumstances of the case
render such interference essential to the furtherance of justice.
23 Nev. 103, 110 (1896) State v. Vaughan
of nine of the judges of England, it must from the reason and necessity of the thing belong to
the court, on trials for misdemeanors, to discharge the jury whenever the circumstances of the
case render such interference essential to the furtherance of justice. It is not for me here to say
whether the same power exists in the same degree (for to a certain degree it must inevitably
exist) on trials for capital crimes, because such a case is not the one before the court; and I
choose to confine my opinion strictly to the facts before me. With respect to misdemeanors,
we may, with perfect safety and propriety, adopt the language of Sir M. Foster (p. 29), which
he, however, applies even to capital crimes, that it is impossible to fix upon any single rule
which can be made to govern the infinite variety of cases that may come under the general
question touching the power of the court to discharge juries sworn and charged in criminal
cases.' If the court are satisfied that the jury have made long and unavailing efforts to agree;
that they are so far exhausted as to be incapable of further discussion and deliberation, this
becomes a case of necessity, and requires an interference. All the authorities admit that when
any juror becomes mentally disabled by sickness or intoxication, it is proper to discharge the
jury, and whether the mental inability be produced by sickness, fatigue or incurable prejudice,
the application of the principle must be the same. So it is admitted to be proper to discharge
the jury when there is good reason to conclude the witnesses are kept away, or the jury
tampered with, by means of the parties. Every question of this kind must rest with the court,
under all the particular or peculiar circumstances of the case. There is no alternative; either
the court must determine when it is requisite to discharge, or the rule must be inflexible that,
after the jury are once sworn and charged, no other jury can, in any event, be sworn and
charged in the same cause. The moment cases of necessity are admitted to form exceptions,
that moment a door is opened to the discretion of the court to judge of that necessity, and to
determine what combination of circumstances will create one.
In the inquiry touching the disqualification of the juror three witnesses were examined.
Two of them, Kassell and Moss, swore, among other things, that Flint had said some
months previous, in their presence, that he was opposed to capital punishment; and
Dunham, the third witness, said that he had often heard Flint say that the defendant was
guilty.
23 Nev. 103, 111 (1896) State v. Vaughan
Moss, swore, among other things, that Flint had said some months previous, in their presence,
that he was opposed to capital punishment; and Dunham, the third witness, said that he had
often heard Flint say that the defendant was guilty.
The court excuse [excused] the juror for two reasons: First, that he had formed and
expressed an opinion that the defendant was guilty, and, second, that he was opposed to
capital punishment.
For either of these reasons the juror may have been excused. The subject was within the
sound discretion of the district court, and we cannot interfere with its exercise except in cases
of its abuse.
SecondWhether it was correct to empanel another juror in the place of Flint, or to
discharge the jury:
In People v. Damon, 13 Wend. 351, after a juror had been sworn in chief and taken his
seat, it was discovered that he was incompetent to serve. He was excused and another juror
substituted. In the opinion of the court, Chief Justice Savage said: I apprehend no authority
can be necessary to sustain the proposition that the court may and should in its discretion set
aside all the persons who are incompetent jurors at any time before evidence is given. The
inference to be drawn from this language is that, after evidence is given, no substitution
should be made. At the common law, if, during the trial, an incompetent juror was
discovered, the whole jury was discharged.
The rule has not been changed by the legislation of this state. It is as binding upon courts
as statutes adopted by the legislature.
Adhering to it, I conclude that a mistrial took place when Flint was excused. The
substitution of another juror in his stead was contrary to all precedent. The case illustrates the
evil of the course pursued. The jury had been occupied for upwards of three days in hearing
the testimony on the part of the prosecution when Flint was excused. Under these
circumstances it is not presumable that the jury was indifferent.
Defendant was entitled to a legal and impartial jury, and all the substantial requirements
of law should have been observed in its empanelment.
23 Nev. 103, 112 (1896) State v. Vaughan
all the substantial requirements of law should have been observed in its empanelment.
The judgment should be reversed and a new trial granted, and it is so ordered.
Bonnifield, J., concurring:
In view of the character of the charges preferred against juror Flint, and of the examination
and proceedings had thereon and in connection therewith, all being made and had in the
presence of the jury and against the objection of the defendant, the vital question, in my
opinion, in this case is: Was the court vested with legal discretion to retain the eleven jurors
on the panel against defendant's objection? Or, in other words, was not fatal error committed
in empaneling juror Savage in place of juror Flint, who had been discharged, instead of
discharging the eleven jurors and empaneling a new jury?
In the first place, it was not necessary to have preferred said charges, or to have held said
examination or proceedings in the presence of said eleven jurors, but I am of opinion that it
was improper to have done so. It appears to me that it would have been proper and the right
course to have pursued for the court to have put said jurors in charge of the sheriff to be
retired from the court room, and the juror Flint retained during the examination of the charges
made against him; then it might have reasonably been said that the remaining jurors could not
have been prejudiced by anything which had occurred in the matter of the impeachment of
Flint; that, therefore, no error was committed to defendant's prejudice thereby, and, upon the
authority of the Pritchard case, the action of the court might be sustained, if, at all.
It is provided by statute, and is as binding on the courts as any other statutory provision,
that: The common law of England, so far as it is not repugnant to, or in conflict with the
constitution and laws of the United States, or the constitution and laws of this state, shall be
the rule of decision in all courts of this state. (General Stats. 3021.) And it seems to be
settled by the common law writers and by nearly, if not quite, all of the decided cases on the
subject, that under the common law, in all cases where a juror is discharged during the
progress of the trial from any cause of necessity, the balance of the jurors must be
discharged, or rather the discharge of the one by the court operates to the discharge of all
the balance, but the balance may be immediately recalled into the jury-box and their
examination be entered into as originally upon their voir dire, if either party so desires,
and the respective parties may have their challenges over.
23 Nev. 103, 113 (1896) State v. Vaughan
that under the common law, in all cases where a juror is discharged during the progress of the
trial from any cause of necessity, the balance of the jurors must be discharged, or rather the
discharge of the one by the court operates to the discharge of all the balance, but the balance
may be immediately recalled into the jury-box and their examination be entered into as
originally upon their voir dire, if either party so desires, and the respective parties may have
their challenges over. By our statute the common law rule is abrogated to this extent and no
further, that is: If before the conclusion of the trial a juror becomes sick, so as to be unable
to perform his duty, the court may order him to be discharged. In that case a new juror may be
sworn and the trial begun anew, or the jury may be discharged and a new jury then or
afterwards empaneled. (General Stats. 4262.)
Only in the class of cases above named does our statute give the court discretion to either
empanel a new juror or to discharge the whole jury and empanel a new one at its option. In
the case at bar the juror was not discharged on account of sickness, and hence the above
statute is not applicable to it, and we have no other statute on the subject, but we have the
common law, with its mandate that in such cases the jury shall be discharged. At this point in
the procedure we come to the parting of the ways between the common law and the statute.
The statute plainly points out the course to be pursued in empaneling a new jury, which, of
course, must be followed, unless the parties consent to proceed under the common law rule of
immediately calling the remaining jurors back into the box for re-examination and challenges;
so, if there be any authority for retaining the eleven jurors, as was done in this case, we must
look elsewhere for it besides the statute or the common law.
No judicial authority has been cited in point, and in my opinion none can be found to
sustain the respondent's contention on the question under consideration, except in those states
where the statute authorizes such practice as was adopted by the trial court in this case. State
v. Pritchard, 16 Nev. 101, and People v. Stone, 2 Scam. (Ills.) 326, have been cited and seem
to be relied on as to such authority. But I am of opinion that they cannot be properly so
considered.
23 Nev. 103, 114 (1896) State v. Vaughan
sidered. In the Pritchard case, upon the question whether the court below erred in empaneling
another juror in the place of the juror who had been discharged, instead of discharging the
remaining eleven jurors and empaneling a new jury, the supreme court said: In considering
the facts of this case, in connection with the authorities to which our attention has been
called, we have arrived at the conclusion that this action of the court was correct. The
remaining eleven jurors were competent. No objection was urged against them. They had
been selected, agreed upon and accepted in the mode provided by law. No testimony had been
offered. It seems to us that the discharge of an incompetent juror creates no necessity for the
discharge of the eleven remaining competent jurors.
Now, the facts in that case were these: The jury were empaneled and sworn to try the case;
thereupon the court took a recess till next morning. Upon the reconvening of the court
counsel for the defendant was permitted by the court to ask the jurors the following questions,
to wit: Since you were examined by me before, touching your qualifications to serve as
jurors, has anything happened or occurred to your recollections to render you improper jurors
to your knowledge? Thereupon one of the jurors informed the court and counsel, in
substance, that there had been some misapprehension or some mistake made in his
examination as to his qualifications as a juror, and stated that he could not find a verdict of
guilty on a charge of murder upon circumstantial evidence. Upon this statement and ground
he was discharged. It is apparent that in that proceeding nothing occurred so that it could
reasonably be said that it might have prejudiced the balance of the jurors against the
defendant. Indeed, it was admitted on the record by stipulation of the parties and confirmed
by the court: That neither the plaintiff, the defendant nor said juror had been guilty of any
intentional fraud or deception in procuring the swearing of said juror to try the case, except in
so far as the answers made by said juror on his voir dire may operate as such fraud.
But in the present case the record shows a materially different state of facts. Here the juror
was charged, in effect, with deception, fraud and the crime of perjury, with the view, on
his part, of getting on the jury to favor and acquit the defendant, and the court found, in
effect, that the charge was true.
23 Nev. 103, 115 (1896) State v. Vaughan
with deception, fraud and the crime of perjury, with the view, on his part, of getting on the
jury to favor and acquit the defendant, and the court found, in effect, that the charge was true.
Here, also, by the strongest implication, the defendant and his family were charged with being
accomplices in the crime of said juror, and this imputation was left resting on them by the
district attorney and the court, instead of exonerating them therefrom.
During the progress of the examination of witnesses in support of these charges, the
district attorney put defendant's attorney on the stand as a witness, evidently for no other
purpose than to connect the defense with the alleged fraud and perfidy of said juror. He was
subjected to quite a lengthy examination, and all the questions put to him by the district
attorney appear to have been put with said view. The witness having stated that he had
received an intimation the evening before that there was one juror on the panel favorable to
the defendant, juror Flint asked him from whom he had received this intimation; the witness
declined to answer, on the ground that it was privileged. The district attorney then said to,
and asked, the witness as follows: Let us find out whether it is so or not: Was it from your
client, his father, or brother, or mother? The witness declined to answer. The court, in
passing upon the question of discharging Flint, expressed the opinion that the juror had
deceived both of the counsel and the court. This relieved defendant's attorney from all blame
in the matter, so far as the opinion of the court was concerned, but it did not remove the
imputation cast upon the defendant and his family of complicity.
After Flint had been discharged, and in explanation of the grounds of his discharge, the
court remarked in the presence of the eleven jurors, to wit: * * * I became convinced that he
came upon the jury to aid and assist the defendant in this case, for what inducement I do not
know. The remaining jurors might reasonably have inferred from that remark that, in the
opinion of the court, the juror had inducement, and that such inducement moved from the
defendant or from some one in his behalf.
Counsel for defendant asked that the remaining eleven jurors be discharged on the
ground, among others, "of the evidence adduced before them, tending to disqualify them,
and tending to bias and prejudice them against the defendant," and he asked "to be
allowed to examine them on their voir dire as to their qualifications," and asked to be
allowed a peremptory challenge to the new juror Savage.
23 Nev. 103, 116 (1896) State v. Vaughan
jurors be discharged on the ground, among others, of the evidence adduced before them,
tending to disqualify them, and tending to bias and prejudice them against the defendant, and
he asked to be allowed to examine them on their voir dire as to their qualifications, and
asked to be allowed a peremptory challenge to the new juror Savage. The court replied: If I
thought your challenge was taken in good faith I should be induced to set aside them all.
By counselI assure your honor it is in good faith.
By the courtI will pass upon that; the law gives you eight; I am impressed with the fact
that you simply desire to obtain from the court that [which] is erroneous. The challenge is not
taken in good faith, and it will be denied. You may have the benefit of an exception.
By counselI will take it.
It seems to me that the above remarks impeaching the sincerity of counsel cast discredit on
the whole defense of the defendant, and would have a tendency to create fatal prejudice in the
minds of said jurors against the defendant.
The charges having been made and the examination thereof had before the jury against the
defendant's objection, and the above remarks made in their presence, can it be reasonably said
that the eleven jurors were not thereby prejudiced against the defendant and the theory of the
defense, and hence remained competent jurors? Under these facts and circumstances was the
court clothed with a discretion to retain said eleven jurors on the panel against the objection
of the defendant, and without giving him the privilege asked for of examining them as to the
state of their minds? Certainly the ruling in the Pritchard case does not go so far as to
sanction such practice or authorize such discretion as were adopted and exercised in this case
under the state of facts existing here, nor was it intended by the court that the rule adopted in
that case should have such effect as is clearly manifested by the language used in the above
quotation from the opinion of the court. It is equally clear to my mind that the case of People
v. Stone, supra, does not support the action of the court in the present case. In that case a juror
was discharged on the ground of alienage, and a new juror empaneled, and like the Pritchard
case there was nothing occurring in the proceedings relative to the juror discharged that
could reasonably have tended to prejudice the remaining jurors against the defendant or
his defense, so far as we can learn from the opinion there rendered.
23 Nev. 103, 117 (1896) State v. Vaughan
ing occurring in the proceedings relative to the juror discharged that could reasonably have
tended to prejudice the remaining jurors against the defendant or his defense, so far as we can
learn from the opinion there rendered. The court held in that case, as in the Pritchard case,
that the discharge of the one juror did not necessitate the discharge of the eleven, for the
reason that no injustice had been done, that the rights of the prisoner had not been infringed,
and no law violated. The court then says: If a doubt could, however, remain on this point,
that is, on the point of empaneling a new juror, instead of a new jury, it is definitely and
conclusively settled by the statute relative to jurors. So it seems that the decision was finally
based on the statutes of Illinois, which give the courts discretion to fill one or more vacancies
on the jury, where one or more jurors are discharged from necessity, and to retain the other
jurors on the panel. But we have no such statute.
It seems to me further, that if, from what the court said in that case can be construed as
basing the decision on general principles, and not solely on the statute, it was done so on
the ground of the peculiar facts of that case, and is not authority in any other case containing
materially different facts. The court said: The case is sui generis. * * * We have been
referred to authorities which are admitted to be the rule in the British courts, and if the facts
in this case were of the nature which marked the cases that have been decided there, and in
like cases in our own courts, we should have no difficulty in coming to the same results on
the present occasion.
Can it be said no injustice was done in the present case, no law violated, no rights
infringed, and that the eleven jurors were not prejudiced on account of these proceedings had
in their presence on matters outside of the proper investigation of the charges contained in the
indictment? I am of opinion that we are not warranted in entertaining such presumption.
Can it be held with any reasonable plausibility that the action of the court, in the matters
under consideration, should be sustained because it is not shown here that these proceedings
prejudiced the eleven jurors against the defense when the only means by which defendant
might or could have shown it was denied him in the court below?
23 Nev. 103, 118 (1896) State v. Vaughan
have shown it was denied him in the court below? This question is susceptible of but one
answer, and that in the negative. It is clear to my mind that to so hold would be denying the
accused in such cases the right to protect himself against such prejudice, however great in
degree it might be, created by such procedure.
It seems to me that it cannot reasonably be presumed that these charges against the
defendant, and the proceedings had, and imputations made of complicity of the defendant and
his family in procuring Flint to be placed on the jury through his alleged deception, fraud and
perjury, did not prejudice the eleven jurors against the defendant and the theory of his
defense, so as to render them incompetent.
I am of opinion that nothing scarcely is more potent to create such prejudice against a party
than arousing suspicion that such party has packed, or attempted to pack, a jury by which he
is to be tried, and that but few men are capable of resisting such prejudice and to rise above
its influence, in their deliberations as jurors.
Further, it is evident, to my mind, that to affirm the judgment of the trial court, in
consideration of the facts developed in this case, would be establishing a rule in this state
without law and without precedent, and which would operate, in many cases, in the practical
denial of the right of trial by jurysuch trial as is contemplated by the statute, the common
law and the constitution. It seems to me that such rule would be unwarrantable judicial
legislation, instead of proper adjudication.
In what has been said above, it is not intended as a criticism of any matters occuring
[occurring] on the impeachment of said juror Flint, or on the trial thereof, or of any remarks
made by the court in connection therewith, except in so far as the same occurred in the
presence of the eleven jurors.
In consideration of the facts above given, I am of opinion that the court was not clothed
with legal discretion to retain said eleven jurors on the panel without the consent of the
defendant, and against his objection, and without giving him the privilege asked for of
examining the said jurors as to the state of their minds before being sworn to try the case with
the new juror. Upon this ground, and for the reasons herein above given, I concur in
reversing the judgment and granting a new trial.
23 Nev. 103, 119 (1896) State v. Vaughan
inabove given, I concur in reversing the judgment and granting a new trial.
Bigelow, C. J., concurring:
I am of the opinion that the discharge of the juror Flint was a matter in the discretion of the
court. He had sworn, upon voir dire, that he had not formed or expressed any opinion as to
the defendant's guilt or innocence, and that he had no conscientious scruples against the
infliction of capital punishment. But upon the examination held after the district attorney
moved to dismiss him from the panel it appeared quite clearly that he had several times
expressed the opinion that defendant was guilty, but that, if he were on the jury, he would not
vote to hang him, and when pressed for a reason why he would not had said that he was
opposed to capital punishment. It may be that these remarks were simply idle talk, and had
been forgotten by the juror, but if such were not the case, and especially if he did have such
conscientious scruples, then certainly he was not a fit juror.
The trial judge was in a better position to determine this fact than we are, and his
conclusion thereon is not unsupported by the evidence. It follows, the same as in any other
case where a point has to be determined upon conflicting evidence, that the discretion of the
trial court cannot be overruled upon appeal. As the juror was properly discharged, the
evidence was insufficient to support the plea of former jeopardy thereafter entered by
defendant.
I am also of the opinion that while perhaps the court did not commit reversible error in
refusing to discharge the entire jury, it should either have done so or have given the defendant
his challenges over again, as demanded by him. This would have been substantially in
accordance with the rule at common law, which, in the absence of a statute, must be our
guide.
State v. Pritchard, 16 Nev. 101, relied upon as justifying the action taken below, does not
cover these questions, because there no testimony had been taken, which is particularly
referred to as one of the grounds upon which the decision is placed, and because no question
was raised concerning the defendant's renewed right to his challenges, which were always
given him at common law.
23 Nev. 103, 120 (1896) State v. Vaughan
always given him at common law. If that rule is unsatisfactory, and doubtless it can be
improved upon, it should be changed by statute, as has been done in many states.
I also agree with much that is said by Justice Bonnifield concerning the proceedings taken
against juror Flint, and which could not well have failed to have a prejudicial effect upon the
minds of the jurors retained in the case.
For these reasons I concur in the judgment.
____________
23 Nev. 120, 120 (1896) State v. LaGrave
[No. 1458.]
THE STATE OF NEVADA, ex rel. H. C. CUTTING, Superintendent of Public Instruction,
Relator, v. C. A. LaGRAVE, State Controller, Respondent.
Superintendent of Public InstructionSalary of, For Ex Officio OfficesAct Fixing Salary for Several Offices
in Solido, Inoperative When Part of Offices Are Taken Away.Statutes of 1891, p. 104, provide that the
superintendent of public instruction shall receive a certain compensation as ex officio clerk of the supreme
court, ex officio state librarian, ex officio curator of the state museum, and secretary of the board of
directors of the orphans' home, in addition to his salary as superintendent. By Stats. 1893, p. 32, the act
making the superintendent ex officio librarian and clerk was repealed, and these positions were attached to
the office of secretary of state, but nothing was said in regard to the superintendent's salary as curator and
secretary. Held, that the superintendent was not entitled to receive any of the compensation attaching in
solido to the four ex officio offices.
IdemEffect of Appropriation by Legislature of Supposed Salary.That the legislature, in making the
appropriation for the salary of the superintendent for 1895 and 1896, appropriated a sum equal to his salary
as superintendent and that attached to his former ex officio offices, is immaterial. (Bonnifield, J.,
concurring upon the ground that the general appropriation bill of 1895, in so far as it appropriates more
than $1,000 annually out of the school fund, never became operative.)
Original Proceeding. Application by the State, on the relation of H. C. Cutting, as
Superintendent of Public Instruction and ex officio Curator of the State Museum, against C.
A. LaGrave, State Controller, for a writ of mandamus. Denied.
The facts sufficiently appear in the opinion.
23 Nev. 120, 121 (1896) State v. LaGrave
H. C. Cutting, in pro. per., for Relator:
I. What is the salary of the superintendent of public instruction, with his ex officio offices,
under the present statutes? This is a question of statutory construction. (Sutherland, Statutory
Construction, p. 290, sec. 219.) The intention of an act will prevail over the literal sense of
its terms. (State v. Kruttschnitt, 4 Nev. 178.)
II. The legislature of 1893 must surely have construed this salary act as attaching a salary
of $2,400 to the office of superintendent of public instruction, for when, by the act approved
February 20, 1893 (Stats. 1893, 32), they took from the superintendent the ex officio duties of
clerk of the supreme court and state librarian and gave them to the secretary of state, they said
nothing about a change in salary for either officer. If these ex officio duties added nothing to
the salary of secretary of state, why should they take anything from the superintendent of
public instruction? This arrangement of these ex officio duties was made two years before
either law was to go into effect, and the legislature of 1895 construed this salary act just at the
time that it took effect by making the following appropriations in the general appropriation
act (Stats. 1895, 69-70): Sec. 6. For salary of secretary of state and ex officio clerk of the
supreme court and ex officio state librarian, forty-eight hundred ($4800) dollars. Sec. 20.
For salary of superintendent of public instruction and ex officio curator of the state museum,
forty-eight hundred ($4800) dollars.
III. The contemporary and subsequent action of the legislature in reference to the subject
matter has been accepted as controlling evidence of the intention of a particular act.
(Sutherland, Statutory Construction, p. 394, sec. 311.)
IV. As this is a statute prescribing a salary to a public officer it should be liberally
construed. (Sutherland, Statutory Construction, p. 536, sec. 419.)
V. The legislature had a perfect and legal right to appropriate $2,400 per annum for the
salary of superintendent of public instruction and ex officio curator of the state museum, and
the expression of their will in the appropriation act is law, as it is the last expression of the
will of the legislature. (Riggs v. Brewer, 64 Ala. 282; Riggs v. Pfister, 21 Ala. 469; U. S. v.
Ashfield, 91 U. S. 31S; Meyers v. English, 9 Cal. 341; Sage v. Schuyler, 79 N. Y. 201.)
23 Nev. 120, 122 (1896) State v. LaGrave
U. S. v. Ashfield, 91 U. S. 318; Meyers v. English, 9 Cal. 341; Sage v. Schuyler, 79 N. Y.
201.)
Robt. M. Beatty, Attorney-General, for Respondent:
I. At present and at all times during the incumbency of relator the superintendent of public
instruction is and was, by law, ex officio curator, and perhaps secretary of the board of
directors of state orphans' home. As superintendent of public instruction, his salary has been
fixed by law at the sum of $1,000 per annum, payable out of the general school fund. (Stats.
1891, p. 104.)
II. There is no salary fixed by law for his ex officio duties as either curator or secretary of
the board of directors of the orphans' home, except that by the act approved March 21, 1891,
and that act fixes it only in conjunction with the salary fixed for the other ex officio duties of
clerk of the supreme court and state librarian, and at that time attached to his principal office,
and at that time he was in fact not secretary of said board of directors. When the present
appropriation was made, it was evidently based upon the salary as established for the
principal and all four ex officio offices of the superintendent of public instruction with,
however, but one of them named in the appropriation. Therefore, the appropriation in excess
of $1,000 per year for the principal office is void because the other $1,400 per year is
appropriated in solido, and no one can ascertain how much of it shall be paid for salary of
curator, the appropriation having been made in solido and not being specific, the salary
having been fixed at $1,400 per annum for four ex officio offices, when now but two of them
remain to relator, and but one of these is named in the appropriation. (19 Nev. 372, citing 65
Cal.)
III. The superintendent cannot receive any pay for the ex officio offices which have been
taken from him and nothing by reason of being secretary of the board of directors of the
orphans' home, because there is no salary fixed for that office (Stats. 1881, 31), nor is there an
appropriation made for it, and the salary of curator, having been abolished by repeal of the act
of 1877, there is no salary legally payable for services as curator, and that not being a
constitutional office, the salary thereof is under the control of the legislature.
23 Nev. 120, 123 (1896) State v. LaGrave
office, the salary thereof is under the control of the legislature.
IV. Respondent cannot legally draw his warrant in favor of relator for more than at the rate
of $1,000 per year for salary as superintendent of public instruction. That is the maximum
salary allowed to that officer which can be legally paid out of the general school fund; and
any greater appropriation from that fund is absolutely void, for the reason that even the
legislature has no authority or power to appropriate any part of the school moneys for salary
of curator or for any other purpose than an educational one.
By the Court, Bigelow, C. J.:
The relator, as state superintendent of public instruction, applies for a writ of mandamus to
compel the respondent, as state controller, to draw a warrant in his favor for the sum $200,
salary due him for the month of November, 1895. He contends that he is entitled to a salary of
$2,400 per year, while the respondent contends he is only entitled to $1,000. This contention
constitutes the question to be decided in this proceeding.
By Stats. 1891, 32, the legislature provided that after January 1, 1895, the superintendent
of public instruction shall be ex officio clerk of the supreme court, ex officio state librarian,
and ex officio curator of the state museum. At the same session, in a general act fixing the
salaries of state officials (Stats. 1891, 104), it was provided that after January 1, 1895, there
should be paid to the superintendent of public instruction one thousand dollars, payable out
of the general school fund; to the superintendent of public instruction, as ex officio clerk of
the supreme court, ex officio state librarian, ex officio curator of the state museum, and
secretary of the board of directors of the state orphans' home, fourteen hundred dollars.
At the next session (Stats. 1893, 32) the act above referred to, making the superintendent
ex officio clerk and ex officio librarian was repealed, and those positions were attached to the
office of secretary of state, but nothing was said concerning the superintendent's salary as ex
officio curator or ex officio secretary of the orphans' home board, offices conferred upon
him by other statutes.
23 Nev. 120, 124 (1896) State v. LaGrave
secretary of the orphans' home board, offices conferred upon him by other statutes.
The office of superintendent and the various ex officio offices mentioned in these statutes
are each a separate and distinct office, and their being vested in the same person does not
change their nature in this respect. (State ex rel. Davenport v. Laughton, 19 Nev. 202; People
v. Durick, 20 Cal. 94; Kinsey v. Kellogg, 65 Cal. 111.)
It is very clear that the salary of $1,400, which, by the act of 1891, was to be paid to the
superintendent, was the salary attached to all four of those ex officio offices, and constitutes
the compensation for discharging the duties of all of them. It was to be paid in solido, and no
particular sum was fixed as the salary of any one of them. This, of course, did not matter so
long as all the offices were vested in one person, but now that that person is no longer clerk
and librarian, it becomes highly important, for he certainly is not now entitled to the salary
attached to those positions. The result is that the law fixing the salary has become inoperative.
The superintendent is no more entitled to the whole salary, because of the two positions that
he still holds, than is the secretary of state, because of the two now vested in him. But that,
under the circumstances, no part of the salary can be paid to the secretary, was, in principle,
decided in State ex rel. Gallup v. Hallock, 19 Nev. 371, and the same principle is applicable
here. In fact that case is virtually decisive of this.
There an appropriation had been made for the payment of the lieutenant-governor, as such,
and as ex officio librarian and adjutant-general, of which he had lost the two latter positions
by failing to give an official bond, and they had become vested in another person. The court
said: The sum appropriated was set apart in solido for the payment of all the services to be
rendered by that officer. Conditions have arisen which prevent the employment of the fund in
this manner, and the appropriation has become inoperative. In the case at bar, so far as the
present question is concerned, it is the statute fixing the salary that has become inoperative,
but the principle is the same.
Kinsey v. Kellogg, 65 Cal. 111, is a case squarely in support of the conclusion announced
here, and to the same effect is San Luis Obispo County v. Darke, 76 Cal. 92. In the latter
case the court said: "by the act of March 31, 1S76, it was provided that the county clerk
should receive a certain annual salary as his only compensation in all three capacities as
county clerk, county auditor, and county recorder.
23 Nev. 120, 125 (1896) State v. LaGrave
San Luis Obispo County v. Darke, 76 Cal. 92. In the latter case the court said: By the act of
March 31, 1876, it was provided that the county clerk should receive a certain annual salary
as his only compensation in all three capacities as county clerk, county auditor, and county
recorder. After 1881, and while a different person was the incumbent of each of the three
offices, the county clerk was entitled to receive no portion of the salary fixed by the law of
1876. The law became inoperative because it was intended to be operative only while the
three offices were filled by one person.
The statute of 1891 fixing the relator's salary having become inoperative, so far as the ex
officio offices are concerned, there is no statute fixing any salary for the offices of curator and
secretary of the orphans' home board, and without statutory authority for its payment, no
compensation can be recovered by a public officer. (Mecham Pub. Off., sec. 856.)
In the appropriation act of 1895 (Stats. 1895, 70) the legislature appropriated the sum of
$4,800 from the general school fund for the payment of the relator's salary as superintendent
and ex officio curator of the state museum for the fiscal years of 1895 and 1896, and the
relator argues that this indicates the intention of that body that he should be paid a salary of
$2,400 per year. It probably does indicate that the legislature of 1895 supposed his salary to
be that amount, but if so, it was a misapprehension, and it does not follow from the
appropriation that the law becomes what they then supposed it was. (Sutherland, Stat. Const.,
sec. 402; Van Norman v. Jackson, 45 Mich. 204; Davis v. Delpit, 25 Miss. 445; Byrd v. State,
57 Miss. 243.) In the latter case the court said (p. 247): An enactment of the legislature
based on an evident misconception of what the law is will not have the effect, per se, of
changing the law so as to make it accord with the misconception.
The purpose of the general appropriation act is to provide funds for carrying on the state
government. The mere fact that money is appropriated for an officer's salary, or for any other
purpose, does not, of itself, make that money payable to any particular person. There must
still be some authority of law to justify the controller in drawing a warrant for it, or the
treasurer in paying it out.
23 Nev. 120, 126 (1896) State v. LaGrave
or the treasurer in paying it out. (Gen. Stats. 1811.) If more is appropriated than is sufficient
for the particular purpose designated, it is to be covered back into the general fund at the end
of the fiscal years. (State ex rel. Wilkins v. Hallock, 20 Nev. 73.) If less, it does not repeal a
former act fixing an officer's salary, unless such clearly appears to have been the intention.
(Mecham, Pub. Off., sec. 857; State v. Steele, 57 Tex. 200; State v. Cook, 57 Tex. 205.)
It may be, and very likely is, that both the legislatures of 1893 and of 1895 supposed the
superintendent's salary was fixed at $2,400 per year, and that they intended him to have that
salary, but, if such is the case, they did not manifest that intention in such a manner that it has
become law, and consequently it cannot be taken notice of by officers or courts.
Application for the writ denied.
Belknap, J.: I concur.
Bonnifield, J., concurring:
I concur in the above opinion that the writ prayed for in this case must be denied, not on
the ground that the fourteen-hundred-dollar provision of the salary act of 1891, relating to the
salary of the superintendent of public instruction, has become inoperative, for I do not
consider that it has become so, but upon the ground, in my opinion, that the general
appropriation bill of 1895, in so far as it appropriates more than $1,000 annually out of the
school fund towards the payment of the superintendent's salary, never became operative. That
part of the appropriation properly made out of the school fund having been exhausted, and no
appropriation having been made out of the general state fund for the payment of the balance
of his salary, he is subjected to the necessity of awaiting the proper action of the legislature
for the balance of his salary. Although this is unfortunate and to be regretted, it is true and
unavoidable.
____________
23 Nev. 127, 127 (1896) State v. O'Keefe
[No. 1455.]
STATE OF NEVADA, Respondent, v. JOHN O'KEEFE,
Appellant.
Criminal LawRobberyAccessory Before the Fact.The defendant, with other boys, invaded the
prosecutor's premises. Some of the boys drove prosecutor's companion to the rear of the house and
detained him there while two others robbed prosecutor. It was not definitely shown that defendant
participated in the robbery, other than he came with the robbers, and left when they left; was present at the
robbery, and apparently acquiesced therein. Held, that the evidence would have justified the jury in finding
him guilty of the robbery.
IdemArgument of Prosecuting AttorneyMisstatement of Law.Misstatements of law made by the
prosecuting attorney in his argument to the jury should be corrected by proper instructions and not by a
motion to strike out. A motion to strike out in such a case affords no adequate relief.
IdemVerdict of JuryLesser Offense.Where the evidence shows the defendant to be guilty of robbery, he
cannot complain that he was convicted of an attempt to commit the crime.
Criminal PracticeEvidenceExcepted to and Not Excepted To.Where certain testimony is received against
defendant's objection, and exception is taken thereto, and thereafter the same matter is testified to by
another witness without objection and no attempt is made to disprove it: Held, that under the circumstances
defendant is not prejudiced.
Appeal from the District Court of the State of Nevada, Storey county; Charles E. Mack,
District Judge:
John O'Keefe was convicted of an attempt to commit robbery, and appeals. Affirmed.
The facts sufficiently appear in the opinion.
F. M. Huffaker and Geo. D. Pyne, for Appellant:
I. The gist of an attempt to rob is doing some act towards this and failing or being
prevented. If there is no overt act towards the accomplishment of the robbery resulting in
failure or interception, there can be no attempt to rob, any more than if no property is taken
from the person by violence there can be no robbery. In either event a conviction would be
against law. In appellant's case there is no evidence whatever to show that he did any act
toward robbing Lees, consequently he could not be legally convicted of this offense.
II. The crime of robbery may embrace larceny, or larceny from the person, or of grand
larceny, and perhaps of an assault with intent to commit robbery, but not an attempt to
rob.
23 Nev. 127, 128 (1896) State v. O'Keefe
larceny from the person, or of grand larceny, and perhaps of an assault with intent to commit
robbery, but not an attempt to rob. (Haley v. State, 49 Ark. 147; People v. Kennedy, 57 Hun.
(N. Y.) 532; State v. Graft, 66 Ia. 482; Com. v. Prewitt, 82 Ky. 240; People v. Jones, 53 Cal.
58; People v. Nelson, 56 Cal. 77; Hickey v. State, 23 Ind. 21; State v. Jenkins, 36 Mo. 372;
Tucker v. State, 3 Heish (Tenn.) 484; People v. O'Brien, 88 Cal. 483; Allen v. State, 58 Ala.
98; State v. Howard, 19 Kan. 507; Reg. v. Brich, 2 Cox C. C. 22; Howard v. State, 25 Ohio
St. 399; Com. v. Scheretto, 130 Pa. St. 272.)
III. Where several persons are indicted jointly for the crime of robbery, it is incumbent
upon the state to show that the several indicted persons acted in concert, and the recognition
of the assailants by the party robbed or others witnessing the robbery is a circumstance
bearing on the merits, and when the party robbed testified that one of such indicted persons
did not act in concert with the others, nor made any attempt to rob him, but was actually
robbed by the others, there is a total want of competent evidence to support a verdict of an
attempt to rob against such non-participant, in which case such a verdict should be set aside.
(State v. Ah Tom, 8 Nev. 213.)
IV. That the court erred in not striking out and instructing the jury in this case to disregard
certain improper statements made by the district attorney to the jury, including the following:
Gentlemen of the jury, if you think there is not sufficient evidence to justify the finding of
defendant guilty of the crime of robbery, you may find him guilty of the crime of an assault
with the intent to commit robbery, or of an attempt to commit robbery. If the district attorney
desired any such instructions, he should have prepared the same and submitted them to the
court and asked the court to instruct the jury on these points.
Robt. M. Beatty, Attorney-General, and Langan & Knight, for Respondent:
I. Appellant is charged in the indictment with having robbed one Jonathan Lees. He was
convicted of an attempt to rob Jonathan Lees. The evidence that appellant came to the scene
of the robberythe fact of the robbery being undisputedwith those positively shown to
have committed the assault and robbery, and that he left with them immediately after the
completion of the offense; that some of the party during a portion or all of the time of the
transaction engaged in putting Thomas McDonald out of the house; that appellant is
shown to have proceeded into the house, after the first assault, and with the robbers and
their victim, and into the rear of the house through which McDonald either fled or was
driven, is amply sufficient to have warranted the conclusion by the jury that the appellant
was actually present, aiding and abetting the commission of the robberyamply sufficient
to have warranted his conviction of the crime of robbery, hence more than sufficient to
warrant his conviction of an attempt to commit the crime charged.
23 Nev. 127, 129 (1896) State v. O'Keefe
undisputedwith those positively shown to have committed the assault and robbery, and that
he left with them immediately after the completion of the offense; that some of the party
during a portion or all of the time of the transaction engaged in putting Thomas McDonald
out of the house; that appellant is shown to have proceeded into the house, after the first
assault, and with the robbers and their victim, and into the rear of the house through which
McDonald either fled or was driven, is amply sufficient to have warranted the conclusion by
the jury that the appellant was actually present, aiding and abetting the commission of the
robberyamply sufficient to have warranted his conviction of the crime of robbery, hence
more than sufficient to warrant his conviction of an attempt to commit the crime charged.
II. Robbery includes the attempt to rob, and the statute permits conviction for an attempt
to commit the offense charged under every indictment for felony. Appellant cannot complain
of a verdict more in his favor than the law, the facts and the instructions warrant. (Ex parte
Curnow, 21 Nev. 33; State v. Lindsey, 19 Nev. 47.)
III. As to the legal right of the jury to find a verdict of guilty of attempt to rob under an
indictment for robbery, we have only to say that the section of the crimes and punishment act
cited by appellant, relative to robbery and larceny, and the many cases cited on the subject,
are excellent so far as they go, but appellant does not go far enough, or has lost sight of
section 4292, General Statutes of Nevada, and the decisions of this court under that section,
namely: State v. Watkins, 11 Nev. 34; State v. Pickett, 11 Nev. 259; and especially Ex parte
Curnow, 21 Nev. 34. For under that section and the case of State v. Pickett, 11 Nev. 259, the
crime of attempt to commit the offense charged can be found in any case where the facts
warrant such findings.
IV. At the time the statement of the district attorney, to wit: Gentlemen of the jury, if you
believe there is not sufficient evidence to justify finding the defendant guilty of the crime of
robbery, you may find him guilty of the crime of assault with intent to commit robbery, or of
an attempt to commit robbery, was made, the court had not instructed the jury. The court
might afterwards have given the same instruction, and it cannot be said, because the court
did not give such instruction, that the making of the statement was an attempt to do
anything contrary to, or notwithstanding the instructions of the court.
23 Nev. 127, 130 (1896) State v. O'Keefe
instruction, and it cannot be said, because the court did not give such instruction, that the
making of the statement was an attempt to do anything contrary to, or notwithstanding the
instructions of the court. It is not improper nor unusual in argument to state the law. Nothing
more was done here. It was within the discretion of the trial court to allow or disallow the
statement complained of. It was allowed by the court, and the statement of law being correct,
the appellant could not have been injured or prejudiced by it, and he cannot complain of the
refusal of the court to withdraw the statement from the jury. In this state (and in this case)
argument precedes the instructions. (Thompson on Trials, secs. 943, 946, 949, and cases
cited; State v. Pickett, 11 Nev. 255; Gen. Stats. 4292.)
V. In any event defendant was not injured by the admission of the testimony of Lees in
question, because McDonald himself testified to all the facts, as such, which Lees says
McDonald related to him, and the facts testified to by McDonald are admitted and
unquestioned.
By the Court, Belknap, J.:
Appellant was tried separately upon an indictment charging him jointly with Charles
Martin and Frank Conlan of the crime of robbery perpetrated upon the person of Jonathan
Lees.
It was shown that Lees and McDonald during the daytime were in the front portion of a
house occupied by McDonald, when a party of boys, among whom was the defendant,
invaded the premises, separated the men by driving McDonald to the rear and detaining him
there while the others robbed Lees of an inconsiderable sum of money. It was not definitely
shown that defendant participated in the robbery other than he came with the robbers and left
when they left, was present at the robbery and apparently acquiesced therein.
A verdict of attempt to rob one Jonathan Lees was returned. A motion for new trial was
made and denied, and upon the judgment and order this appeal is taken.
The exceptions will be considered seriatim.
1. It is urged that the verdict is not responsive to the indictment. It must be admitted that
the defendant could not be convicted of the offense charged unless he actually or
constructively committed it.
23 Nev. 127, 131 (1896) State v. O'Keefe
not be convicted of the offense charged unless he actually or constructively committed it. If
his liability arise from the act of another, it must appear that the act done was in furtherance
of a common purpose. The common purpose of robbery is shown by the acts of the defendant.
It was not necessary to have shown that the defendant took any money from the person of
Lees by his own hands, or that he actually participated in the assault. If he was present, under
the circumstances, the evidence would have justified the jury in finding him guilty of the
robbery.
Bishop states the law as follows: If persons combining in intent perform a criminal act
jointly, the guilt of each is the same as if he had done it alone; and it is the same if, the act
being divided into parts, each proceeds with his part unaided. Again: All who are present at
a riot, prize fight or any other crime, if lending it countenance and encouragement, and
especially if ready to help, should necessity require, are liable as principal actors. (Bishop's
New Criminal Law, 630, 632.)
There can be no doubt of the general rule of law, that a person engaged in the commission
of an unlawful act is legally responsible for all the consequences which may naturally or
necessarily flow from it, and that, if he combines and confederates with others to accomplish
an illegal purpose, he is liable criminaliter for the acts of each and all who participate with
him in the execution of the unlawful design. As they all act in concert for a common object,
each is the agent of all the others, and the acts done are, therefore, the acts of each and all.
(Com. v. Campbell, 7 Allen, 541.)
The doctrine, as applied to cases of homicide is stated in 1 Hale's Pleas of the Crown, p.
441, as follows: If divers persons come in one company to do any unlawful thing, as to kill,
rob, or beat a man, or to commit a riot, or do any other trespass, and one of them in doing
thereof kill a man, this shall be adjudged murder in them all that are present of that party
abetting him, and consenting to the act, or ready to aid him, although they did but look on.
The court instructed the jury, in effect, that under the circumstances if the defendant stood
by, and by his presence aided or abetted those who committed the robbery it was sufficient.
23 Nev. 127, 132 (1896) State v. O'Keefe
sufficient. The matter was properly submitted to the jury. It was not necessary to have shown
any other physical act. The statute (section 4292) provides that the jury may find the
defendant guilty of any offense the commission of which is necessarily included in that with
which he is charged, or an attempt to commit the offense. Upon the evidence, as we have
seen, the jury could have found the defendant guilty of the robbery. As they have found him
guilty of a lesser offense he cannot complain.
2. At the commencement of the trial counsel for appellant announced in open court that
they would introduce the co-defendants as witnesses. They were not sworn, and the district
attorney, in summing up, among other things, said: From the fact that the defense did not
place upon the witness stand the parties jointly indicted with this defendant, who were present
at the commission of this robbery, and whom they had announced in court as their witnesses,
and have had an opportunity to produce, the inference, I claim, is that this defendant either
aided, abetted, assisted or encouraged the commission of said robbery, and you are at liberty
to infer his guilt from this circumstance, and the failure of the defense, by such witnesses, to
explain the defendant's connection with the robbery.
Appellant moved to strike out the above statement, and, upon denial of the motion,
excepted to the ruling.
It will be observed that the inference drawn by the district attorney was one for which he
alone, and not the court, was responsible. The most that can be said against it is that it is a
misstatement of the law. If so, the error could have been corrected by an instruction, and not,
as in this case, by a motion to strike out. Such motion affords no adequate relief.
In Proctor v. DeCamp, 83 Ind. 559, a similar question arose. The court said: Errors in
logic, or in law, occurring in the address to the jury, cannot be made a cause for overturning
the verdict. If the error is of logic, if illogical conclusions are drawn or illicit inferences made,
the courts cannot correct these by directing counsel to reason logically. If, however, counsel
state the law incorrectly in their address to the jury, the adverse party can secure a correction.
The correction is not to be obtained by objecting to the statements of counsel during the
argument, but by asking the court to give the law to the jury in its instructions."
23 Nev. 127, 133 (1896) State v. O'Keefe
correction is not to be obtained by objecting to the statements of counsel during the argument,
but by asking the court to give the law to the jury in its instructions.
Again, if error were committed, it was corrected by the instructions. In charging the jury
the court, among other things, said: In determining questions of fact presented in the case,
you should be governed solely by the evidence introduced before you. * * * You have entered
upon your duties as jurors in this case by taking a solemn oath that you would render a true
verdict according to the evidence. That duty and obligation are performed only when a verdict
is rendered which is in accordance with the evidence. While you have a right to use your
knowledge and experience as men in arriving at a decision as to weight and credibility of
witnesses, yet your finding and decision must rest alone upon the evidence admitted in this
trial. You cannot act upon the opinions and statements of counsel as to the truth of any
evidence given, or as to the guilt or innocence of the defendant.
3. Exception was taken to the admission of evidence illustrating the manner in which
Martin committed his part of the robbery. At the time the exception was taken the complicity
between the defendants had not been as fully established as it afterwards was, but the witness
Lees then under examination, had testified to the assault made upon him by several persons in
whose company the defendant was. This was a sufficient foundation for the admission of the
evidence.
4. Exception was taken to evidence given by the witness Lees touching a colloquy
between himself and McDonald. After the exception had been taken McDonald testified, fully
corroborating Lees' statement, without objection, and no attempt was made to disprove the
fact.
Under the circumstances the defendant was not prejudiced.
The judgment and order denying a new trial are affirmed.
____________
23 Nev. 134, 134 (1896) Orr v. Ulyatt
[No. 1450.]
THOMAS ORR, Appellant, v. GEORGE C. ULYATT,
Respondent.
MortgageUnited States Homestead ActExemption Under.U. S. Revised Statutes, sec. 2296, providing
that no lands acquired under the homestead act shall in any event become liable to the satisfaction of any
debt contracted prior to the issuing of a patent therefor, does not render invalid a voluntary incumbrance
by mortgage, placed on said homestead prior to the issuance of a patent therefor.
IdemLien Not a Conveyance.Under the provision of General Statutes, sec. 3284, providing that a mortgage
shall not be deemed a conveyance, a mortgage is not an alienation, but is a mere security for a debt.
Appeal from the District Court of the State of Nevada, Washoe county; A. E. Cheney,
District Judge:
Suit by Thomas Orr against George C. Ulyatt and others to foreclose a mortgage. From a
judgment exempting a homestead from the operation of a mortgage lien, and from the order
denying a new trial plaintiff appeals. Reversed.
The facts sufficiently appear in the opinion.
Robert M. Clarke, for Appellant:
I. It is defendant's contention that the mortgage of April 10, 1891, was void under section
2296 of the Revised Statutes of the United States concerning homesteads, which provides as
follows: No lands acquired under the provision of this chapter shall in any event become
liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.
(Rev. Statutes U. S., sec. 2296.)
II. It is plaintiff's contention that this section does not forbid a bona fide mortgage upon
the homestead premises made by the homestead claimant; that defendant is estopped by the
terms of the mortgage, which grants, bargains, sells, conveys and confirms the lands unto the
said Thomas Orr, his heirs and assigns forever.
III. The act of congress does not in terms forbid the mortgaging of homestead property.
The provision is that such lands shall not become liable to the satisfaction of any debt
contracted prior to the issuing of the patent. This provision is a simple exemption of the
lands from liability, and does not in any sense forbid the making of a bona fide and
voluntary pledge upon the land to secure a bona fide debt.
23 Nev. 134, 135 (1896) Orr v. Ulyatt
does not in any sense forbid the making of a bona fide and voluntary pledge upon the land to
secure a bona fide debt. The question has been many times decided according to the
contention of plaintiff. (Lang v. Morey, 40 Minn. 396; Townsend v. Fenton, 30 Minn. 528;
Red River R. Co. v. Sture, 32 Minn. 95; Lewis v. Witherill, 36 Minn. 386; Spiess v. Neuberg,
71 Wis. 279; Paige v. Pelais, 70 Wis. 78; Orr v. Stewart, 67 Cal. 275; Kirkaldie v. Larrabee,
31 Cal. 455; Nycum v. McAllister, 33 Iowa, 374; Fuller v. Hunt, 48 Iowa, 163; Cheney v.
White, 5 Neb. 261; Jones v. Yoakam, 5 Neb. 265; Boygan v. Reid, 20 Pac. R. 425; 40 Pac. R.
880; 12 Mont. 282.)
IV. It would be a great fraud upon the plaintiff to permit defendant to defeat the mortgage
by pleading his own perfidy. The defendant having solemnly declared in his deed of mortgage
that he was the owner of the land by title in fee, the court will not permit him to say he had
not the title at the time he declared himself to be the owner or hear him say that the title has
since been acquired. (Kirkaldie v. Larrabee, 31 Cal. 456; Pierson v. David, 1 Clarke (Iowa)
26; Camp v. Smith, 2 Minn. 173; Hope v. Stone, 10 Minn, 141; Bush v. Marshall, 6 How. (U.
S.) 288; Phelps v. Kellogg, 15 Ill. 135; 67 Cal. 275-278; Perkins v. Coleman, 90 Ky. 511;
Pendill v. The Marquette County Agricultural Society, 95 Mich. 491; Spiess v. Neuberg, 71
Wis. 279; Norris v. Heald, 12 Mont. 282; Herman, Estoppel and Res Adjudicata, vol. 2, p.
782, 783, sec. 647; Elder v. Armstrong, 87 Ind. 168; Thompson v. Justice, 88 N. C. 269.)
Thomas E. Haydon, for Respondent:
I. Under sections 2288, 2290 and 2296 of the Revised Statutes of the United States
(revision of 1878), and under the general policy of the homestead act, the mortgage in this
suit by all rules of construction is broadly and odiously contrary to the letter and spirit of said
sections and to that of the act itself, and is consequently and necessarily null and void as to
the west half of the southeast quarter of section two, township nineteen, range twenty east.
II. The law of congress in regard to the disposition of public lands is paramount. (Lechler
v. Chapin, 12 Nev. 71.)
III. A title by patent passes to the patentee the unincumbered fee of the soil and wipes
out all former titles.
23 Nev. 134, 136 (1896) Orr v. Ulyatt
bered fee of the soil and wipes out all former titles. (Vansickle v. Haines, 7 Nev. 249. This
case is only modified as to use of water by appropriation, by Jones v. Adams, 18 Nev. 88, and
Reno Smelting Works v. Stevenson, 20 Nev. 275.)
IV. The mortgage in suit was an alienation or conveyance forbidden, by implication, by
section 2288 under the maxim expressio unius exclusio alteriusthat is, the homestead
claimant may transfer portions of homestead for church, cemetery, school or right of way for
railroads without vitiating his homestead. Evidently not for any other purpose.
V. Respondent refers the court to the case of Barnard v. Boller, 105 Cal. 214, which is a
refreshingly logical and conclusive construction of section 2296 of the Rev. U. S. Statutes
relating to homesteads. This decision holds that the homestead claim, under section 2296, can
not be made liable for the payment of a debt contracted after proving up and delivery of the
duplicate receipts, but before the issuance of the patent, and adds: Congress has in plain and
direct terms exempted the homestead' land from the debts of its owner or claimant up to the
happening of a specific event, viz.: to the issuing of the patent therefor.
VI. The cases of Kirkaldie v. Larrabee, 31 Cal. 455, and Orr v. Stewart, 67 Cal. 275, are
in effect overruled by the case of Moffat v. Bulson, 96 Cal. 109, where it is held that a
contract to sell and convey lands, taken under the homestead laws before final proof, is
illegal, and in that case held void a mortgage on other lands because the mortgagee in the
same oral contract agreed to convey a homestead claim when he should prove up and obtain
title to such homestead claim.
VII. Section 3284, Gen. Laws of Nevada, only limits the operation of a mortgage as a
conveyance so that the mortgagee shall only recover possession of the real property by
foreclosure and sale.
VIII. It is against the policy of the U. S. homestead laws to permit a conveyance of any
part of the homestead, and any agreement to convey or conveyance by the homesteader is
therefore void. (Nichols v. Council, 51 Ark. 26; Cox v. Donnelly, 34 Ark. 762; Sorrells v.
Self, 43 Ark. 451; Shorman v. Eakin, 47 Ark. 351; Marshall v. Cowles, 48 Ark. 362; McCue
v. Smith, 9 Minn. 252; Woodbury v. Dorman, 15 Minn.
23 Nev. 134, 137 (1896) Orr v. Ulyatt
McCue v. Smith, 9 Minn. 252; Woodbury v. Dorman, 15 Minn. 338.)
By the Court, Belknap, J.:
This is a suit of foreclosure.
The mortgaged property consists in part of a homestead entered March 26, 1885, under the
law of congress.
The mortgage was made April 10, 1891, and before final proof. Patent was issued January
30, 1892. Defenses were interposed by answer, but the court in its written findings found in
favor of appellant upon all issues, and ordered judgment in his favor except as to so much of
the mortgaged premises as are embraced by the homestead claim. The property was originally
mortgaged by respondent in the year 1883, and the present debt is a renewal of the former
debt. These transactions do not influence the matter. The question is whether the homestead
property is liable on this suit.
Section 2296, Rev. Stats. U. S., provides that no lands acquired under the provisions of
this chapter shall in any event become liable to the satisfaction of any debt contracted prior to
the issuing of a patent therefor.
This provision has frequently been a subject of judicial construction. Nycum v. McAllister,
33 Iowa, 374, was a suit to foreclose a mortgage given upon a homestead under the law of
congress. The defense was that under the provisions of section 2296 above quoted, the
mortgage could not be enforced. The court in that case said: The question presented for our
decision is, whether a homestead, taken under the act of congress, may be conveyed by
mortgage, executed by the homestead settler, to secure a debt contracted prior to the issuing
of the patent for the land. * * * Does the provision of the act of congress just referred to
render invalid a mortgage upon the homestead settler's interest, in case no patent has been
issued to him? The provision is clearly intended for the protection of the settler. It is not a
limit or restriction upon the right he acquires to the land, neither does it operate as a
disability, forbidding the sale or transfer of his interest in the land. This view is certainly
correct, in case the settler has done all the law requires him to do in order to obtain a patent,
when he has a right to the patent, and it has not been withheld through his fault.
23 Nev. 134, 138 (1896) Orr v. Ulyatt
and it has not been withheld through his fault. In such a case his right to the land would be
full and complete. Now, the provision in question is not a restriction upon his rightit is not
a limit upon his rightto dispose of the land in a manner recognized by the law. The law
recognizes his right to convey his land by mortgage. Such an instrument, when executed in a
valid form upon his homestead, must be enforced. The provision is intended as a shield for
his protection, and is not a weapon for the destruction of any of his rights.
Again, in Fuller v. Hunt, 48 Iowa, 163, the question was presented, whether one who had
entered a homestead claim could mortgage it prior to the time he was entitled to make final
proof. It was claimed that under the provisions of section 2296, above quoted, that the
homestead was not liable for a mortgage made prior to the issuance of the patent. Said the
court: If the land is liable at all, it is by notice of the act by which the debtor undertook to
create a special lien upon it, and we have to say that we think the debtor's act had that effect.
Mere exemptions from execution do not prevent the debtor from creating such lien.
Exemptions are provided merely for the debtor's protection. Such is the general rule, and
such, it appears to us, is the intention of the homestead act. The only reason suggested why
the claimant under the homestead act should not be allowed to mortgage his homestead is that
it would be against public interest. But the fact that the act provides against alienation by the
claimant, and does not provide against mortgaging, unless alienation includes mortgaging (a
point which will be hereafter considered), indicates that it was not deemed to be against the
public interest that the claimant should mortgage his homestead.
In Lang v. Morey, 40 Minn. 396, it was decided that a person making a homestead entry
may mortgage it prior to submitting final proof. In deciding the case the court called attention
to its previous decisions upon the same subjectTownsend v. Fenton, 30 Minn. 528; Red
River, etc. v. Sture, 32 Minn. 95, and Lewis v. Wetherell, 36 Minn. 386and said: In the
first of these cases it was held that an agreement made after the entry, but before final proof,
to convey lands held under the homestead act when the patent should be issued, is valid.
23 Nev. 134, 139 (1896) Orr v. Ulyatt
lands held under the homestead act when the patent should be issued, is valid. In the second it
was decided that the entry by the homesteader is a contract of purchase; that thereupon he has
an inchoate title to the land, which is property, a vested right, which can only be defeated by
his failure to perform the conditions affixed; that, if these are performed, he becomes invested
with full ownership, and an absolute right to a patent, which, when issued, relates back to the
time of the entry; while in the last it was determined that section 2296, Rev. Stats. U. S.,
which prescribes that no lands acquired under the provisions' of the homestead act shall, in
any event, become liable to the satisfaction of any debt contracted prior to the issuing of the
patent therefor,' upon which plaintiff seems to rest her case, was manifestly intended for the
protection of the entryman, to prevent the appropriation of the land in invitum to the
satisfaction of debts incurred anterior to the issuance of the patent, and that a mortgage given
upon a government homestead, so called, after a final certificate has been issued, but before
the reception of the patent, is efficacious. As the section depended upon, above quoted,
applies to proceedings against an unwilling party only, and there is no provision of the law
expressly prohibiting the act which the plaintiff seeks to avoid, we are unable, in view of the
effect attributed to the making and filing of the affidavit of entry in Townsend v. Fenton,
supra, to distinguish between mortgages executed prior and those executed subsequent to
final proof and delivery of the final certificate.
In Cheney v. White, 5 Neb. 261, and in Jones v. Yoakam, 5 Neb. 265, it was decided that a
homestead settler under United States laws after making final proof may mortgage the
homestead, notwithstanding the patent has not been issued.
In Jones v. Yoakam the court said: All that congress could have intended by this section
(2296) was, that the owner of such homestead should not be deprived of the land by virtue of
legal process founded on a debt contracted before the patent has issued. It is not intended to
do more than protect him against the compulsory payment of such a debt. Mark the language
employed: No land * * * shall be liable,' etc., that is, bound or answerable, in law or
equity.
23 Nev. 134, 140 (1896) Orr v. Ulyatt
liable,' etc., that is, bound or answerable, in law or equity. It was intended simply as a
protection and benefit to the owner of the homestead, and not as a prohibition upon his right
of alienation, by deed or mortgage, and for any valuable consideration which he may choose
to accept. It is a benefit which he may waive or claim at his own option. See, also, Spiess v.
Neuberg, 71 Wis. 279; Kirkaldie v. Larrabee, 31 Cal. 456; Orr v. Stewart, 67 Cal. 275.
In this state it is provided by statute that a mortgage of real property shall not be deemed a
conveyance, whatever its terms, so as to enable the owner of the mortgage to recover
possession of the land without a foreclosure and sale. (Sec. 3284, Gen. Stats.)
Under the provisions a mortgage is not an alienation, but a mere security for a debt.
In Fuller v. Hunt this objection was considered as follows: The giving of a mortgage may
result in alienation, but it is not such of itself, nor can it be said that the mortgage is given
with such purpose. Land is often mortgaged with the view of obviating the necessity of
alienation. The office of a mortgage is simply to create a lien. Under our statute the legal title
remains in the mortgagor, though the case would not probably be different if it passed to the
mortgagee. A conveyance made merely to create a lien lacks the essential element of
alienation.
The order of the district court denying a new trial must be reversed, and an order made
directing that court to enter a decree in conformity with the views herein expressed. And it is
so ordered.
____________
23 Nev. 141, 141 (1896) Sadler v. State
[No. 1462.]
REINHOLD SADLER, Respondent, v. STATE OF
NEVADA, Appellant.
Presumptions on AppealInsufficient Record.The plaintiff, as lieutenant-governor, sued to recover
compensation for seventeen days' services, during which time he alleged he had acted as governor of the
state. The answer denied that he had acted in that capacity for more than four days. Judgment was rendered
in the plaintiff's favor, and without statement on appeal, or motion for new trial, the defendant appealed:
Held, that the presumption is that the court found that he had acted as governor for the time alleged, and
that the evidence was sufficient to support the finding. (Syllabus by Bigelow, C. J.)
Appeal from the District Court of the State of Nevada, Ormsby county; C. E. Mack,
District Judge:
Action by Reinhold Sadler against the State of Nevada. Judgment for plaintiff, and the
State appeals. Affirmed.
The facts appear in the opinion.
Robert M. Beatty, Attorney-General, for Appellant.
James R. Judge, for Respondent.
By the Court, Bigelow, C. J.:
The plaintiff, as lieutenant-governor, brought his action in the district court to recover
$136 as compensation due him for seventeen days' services rendered by him during the month
of November, 1895, as acting governor of the state of Nevada, and for mileage in connection
with those services.
The statute provides (Stats. 1891, 104), that the lieutenant-governor shall receive ten
dollars per day when acting as president of the senate, and eight dollars per day when acting
as governor, and such mileage as is paid to members of the legislature. As no objection has
been made to the complaint, we shall treat the allegation that he was acting governor during
the time mentioned, as it was treated in the court below, as equivalent to an allegation that he
was then acting as governor. The answer denies that the plaintiff acted as governor for
more than four days during the month of November, 1895, and contains an allegation that for
the four days he has been fully paid. It will thus be seen that a square issue of fact was made
by the pleadings as to the length of time he had acted as governor, for clearly he is only
entitled to compensation during the time he had so acted.
23 Nev. 141, 142 (1896) Sadler v. State
as to the length of time he had acted as governor, for clearly he is only entitled to
compensation during the time he had so acted. Judgment was rendered in the plaintiff's favor
for the full amount of his demand for services, less four days for which he had been paid, but
he was allowed no mileage. From this judgment the state appeals.
There was no motion for new trial, nor is there any statement on appeal. It follows that
there is nothing before this court except the judgment roll, which consists of only the
complaint, the answer and the judgment. (McCausland v. Lamb, 7 Nev. 238.) Under these
circumstances, we must presume that the court's findings were such as to support the
judgment (Welland v. Williams, 21 Nev. 230), and, consequently, that it was found that
plaintiff had acted as governor during the time alleged. In the absence of a motion for new
trial, the question of whether this finding was correct is not before us. (James v. Goodenough,
7 Nev. 324; Burbank v. Rivers, 20 Nev. 81.) We must presume the evidence was sufficient to
support it, or that otherwise the defendant would have moved for a new trial on that ground.
The question, therefore, principally argued, as to when the lieutenant-governor acts as
governor, is not so presented that it can be decided.
Judgment affirmed.
____________
23 Nev. 143, 143 (1896)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
APRIL TERM, 1896.
____________
23 Nev. 143, 143 (1896) State v. Wheeler
[No. 1454.]
STATE OF NEVADA, Appellant, v. JOHN T. WHEELER and SAMUEL WHEELER,
Partners Under Firm Name of Wheeler Brothers, Respondents.
LicenseLandholders.The word holder, as used in Statutes 1895, p. 53, requiring sheep owners who are
not the owners and holders of one acre of land for each two sheep to procure a license, means one who is in
possession, actual or constructive, of the land.
Lessee of the LandOwner.A lessee of land for a fixed term is an owner thereof, within the meaning of that
law.
Penal Statute, Construed Strictly.That statute, although a revenue measure, is a penal statute, and should be
construed strictly. A proviso in a penal statute exempting persons from the operation of the act should be
construed liberally in favor of the subject. (Syllabus by Bigelow, C. J.)
Appeal from the District Court of the State of Nevada, Elko county; A. E. Cheney, District
Judge:
Action by the State of Nevada against John T. Wheeler and Samuel Wheeler, partners
under the firm name of Wheeler Brothers. Judgment for defendants, and the State appeals.
Affirmed.
Action to recover $350 as license money due upon 7,000 head of sheep, and for $25, the
statutory penalty for failing to procure the license in advance, under Stats.
23 Nev. 143, 144 (1896) State v. Wheeler
to procure the license in advance, under Stats. 1895, 53, the material portions of which act are
as follows: Section 1. Every person now engaged in, or who may hereafter engage in, the
business of owning, raising, grazing, herding or pasturing sheep, as either owner, lessee or
manager of said sheep, in any county in the state of Nevada, must annually procure a license
therefor from the sheriff, as collector of licenses of each of such counties, and make payment
therefor as follows, in advance, for each band, flock or bunch of sheep: [Then follow
provisions dividing such persons into seven classes, in proportion to the number of sheep
owned or controlled by them, and providing substantially that they must pay $50 per thousand
head thereof, after which the section proceeds:] provided, that the provisions of this act shall
not apply to any person, persons, company, association or corporation who shall be the owner
and holder of land in the state of Nevada equal to one acre for each two sheep so owned,
raised, grazed, herded or pastured. * * * Section 2 provides a punishment of fine and
imprisonment for failing to procure the license. Section 3 directs the district attorney to bring
suit for the license money due, and that there shall be entered up in the judgment the
additional sum of $25 as penalty for failing to procure the license. The facts are that the
defendants are the owners of 7,000 sheep, which, from May 3, 1895, to the bringing of this
action, August 27, 1895, they have been engaged in herding and pasturing in Elko county,
without having procured the license required by the above statute; that the Central Pacific
Railroad Company, a duly organized corporation, is the owner of 8,980 acres of land in Elko
county, which, prior to May 3, 1895, the company had leased to the defendants, said lease
commencing April 25, 1895, and running to January 1, 1896. Also, that defendants have
contracts with the state of Nevada for the purchase of 1,400 acres of land owned by said state,
the possessory title to 160 acres of unsurveyed government land, and a lease of 420 acres of
land in Eureka county, from the individual owner thereof.
W. A. Massey, for Appellant:
I. The decision of this appeal, under the assignment of errors, involves but one
question--the construction or interpretation of the phrase "owner and holder," as used in
section 1 of the act of 1S95.
23 Nev. 143, 145 (1896) State v. Wheeler
errors, involves but one questionthe construction or interpretation of the phrase owner and
holder, as used in section 1 of the act of 1895. (Stats. 1895, p. 53-54.)
II. The appellant contends that it was the manifest intention of the legislature that the
exemption provided for in section 1 of said act should be enjoyed by those only who held the
title and the actual possession of lands in Nevada, and that a person who holds public lands
by a mere possessory right, or as lessee, is not entitled to the exemption.
III. In support of the contention on the part of appellant the following well-established and
settled rules on construction and interpretation are submitted to the court: In the interpretation
of any phrase of a statute, the first thing to be ascertained is the purpose the legislature had in
the enactment of the law, and, when that is known, every section should be interpreted with
reference to such purpose, and with a view to giving full and complete effect to it. (Rooney v.
Buckland, 4 Nev. 45.) It is an elementary rule of construction that words and phrases are used
in a statute in their popular and common acceptation. (State v. Payne, 29 Pac. Rep. 787;
Ormsby Co. v. State, 6 Nev. 283; Quigley v. Gorham, 5 Cal. 418; Jones v. Jones, 36 Am.
Dec. 723.) There can be no departure from the plain meaning of a statute on the ground of its
unwisdom or public policy. (Hadden v. Barrey, 5 Wall. 107; Flint River Steamboat Co. v.
Foster, 48 Am. Dec. 248; Adams v. Howe, 7 Am. Dec. 216.)
IV. Applying these rules of construction to the phrase owner and holder, as used in this
act, without regard to the hardship or impolicy of the law, the appellant insists that the
legislature clearly and manifestly intended that only those persons should be entitled to the
exemption allowed by the act who held the title and were in actual possession of lands in this
state. The popular meaning or common acceptation of the word owner implies something
more than the mere right of possessionsomething more than is implied by the word
holder. The lessee of lands is the holder of lands, but not, according to the common
meaning, the owner and holder. If the legislature had intended that the holder of lands should
be entitled to the exemption, that the lessee of lands or the one having a mere possessory
right to lands should enjoy the benefits of the exemption, the word "or" would have been
used in the law instead of the word "and."
23 Nev. 143, 146 (1896) State v. Wheeler
possessory right to lands should enjoy the benefits of the exemption, the word or would
have been used in the law instead of the word and. Any other construction would do
violence to the intention of the legislature, and to the use of the English language as
understood in its popular meaning. (Black's Dict., Owner; Rapalje & Lawrence's Dict.,
Owner.)
V. It was contended that the word owner had no precise legal signification, and could be
applied to any defined interest in or to real estate, and, while admitting this contention to be
true, the appellant insists that the various defined meanings given to the word by the courts
have depended almost entirely upon its use in the particular statute, and upon the general
purpose and object of the statute. The legislature of this state, in the act under consideration,
did not intend that there should be any uncertainty in the meaning of the word as used in said
section, for it gave an exact and well-understood meaning by limiting the exemption not to
the owner, but to the owner and holder of lands. The meaning of the word is restricted
and limited by the phrase and holder to one who not only possesses, but to one who has the
legal title to the same.
VI. If the rule laid down in 4 Nev. 45, that phrases in a statute should be interpreted so as
to give complete effect to the statute, then the interpretation given by the trial court, and
insisted upon by respondents, is wrong, for the ownership and character of the major portion
of the lands of this state are such that the law is rendered inoperative as a police regulation or
a revenue measure.
VII. This act being a revenue measure, based upon the power above indicated, with an
exemption that is so discriminating as to render the clause containing such exemption
unconstitutional, this court will not declare the entire act void, unless the clause containing
the unconstitutional exemption enters so into the scope and design of the act that it would be
impossible to maintain it without the obnoxious provision. (Willis v. Austin, 53 Cal. 152;
State v. Eastbrook, 3 Nev. 180; Robinson v. Bidwell, 22 Cal. 386; Evans v. Job, 8 Nev. 342;
Cooley's Constitutional Limitations, 177.)
23 Nev. 143, 147 (1896) State v. Wheeler
Thomas Wren, for Respondent:
I. Nothing appears upon the face of the act by which we can determine what the
legislature intended by the use of the term owner. We know what the popular meaning of
the word is in this state as applied to possessory titles of all kinds. The man who took
possession of a mining claim before the passage by congress of the laws regulating the
possession of mining claims was universally spoken of as the owner of the mining claim, and
in the courts he had precisely the same standing that the owner in fee would have had. From
the foundation of this state to the present time the person in possession of public lands, with
no better title than a mere naked possession, was popularly known as the owner of the land,
and in all legal proceedings he was treated as the owner of the land. In regard to the lessees of
land, it would be difficult to determine just what the popular idea was, but the lessee for the
time being was accorded all the rights of ownership, both by the people and the courts, that
the owners of land in fee simple possessed. Probably the true solution lies in the adoption of
the rule of statutory construction established by the courts, that a word or phrase used in a
statute that is ambiguous, unless they are words of restriction in the statute itself, must be
construed as having been used in the most extended sense in which the word or phrase is
used. The user of land in most of the states is held to be the owner for a great variety of
purposes. (Sankey v. Noyes, 1 Nev. 68; Anderson's Law Dictionary, Owner and Titles.
II. The decision in Sankey v. Noyes has been followed by an unbroken line of decisions by
this court down to the present time.
III. Another rule may be invoked to determine the proper construction to be placed upon
the phrase owner and holder, and that is that penal statutes will always be liberally
construed in favor of parties accused of violating them. (Ex parte Deidesheimer, 14 Nev. 311;
Bishop on Statutory Crimes, secs. 194, 216, 218, 220.)
IV. This statute is penal. It imposes penalties of both fine and imprisonment for its
violation, and following the above rule of construction, the phrase owner and holder should
be given its broadest definition.
23 Nev. 143, 148 (1896) State v. Wheeler
should be given its broadest definition. There is one view of the case, though rather shadowy,
that may aid to a slight extent in ascertaining the intention of the legislature in using the
phrase. It is possible that the legislature intended that the sheep owner should hold at least
one acre of land for each two sheep in the state, by some sort of title, that quantity being
deemed sufficient to support the sheep he might own. It is more probable, however, that the
law was passed and the phrase used for the purpose of preventing sheep owners not residents
of the state from driving their sheep into the state during any portion of the year and pasturing
without owning or holding any landed property in the state. The fact, however, that the law
hampers the sheep owners who reside in the state, and who own no land by any title, militates
against this view.
V. Ownership is generally defined as one who has dominion of a thing, real, personal or
incorporeal, which he has a right to enjoy and do with as he pleases, even to spoil or destroy
it, as far as the law permits, unless he be prevented by some agreement or covenant which
restrains his right.
VI. The word owner includes any person who has the usufruct control or occupation of
the land, whether his interest in it is an absolute fee or an estate less than a fee. (Am. and Eng.
Ency. of Law, vol. 17, 299-300.)
By the Court, Bigelow, C. J. (after stating the facts):
The constitutionality of the act under which this action is brought has been quite ably
argued before us, but as, in the view we take, the case can be disposed of without deciding
that point, we do not consider it. (State ex rel. Guinan v. Meder, 22 Nev. 264.) Aside from
that, the question presented is whether the defendants were required to procure the license
provided for in the act of March 12, 1895. This turns upon whether, as lessees of certain land
for a fixed term, they are the owners and holders of it, within the meaning of the proviso to
section one of that act.
As used here, neither of these words has a defined legal meaning, nor is the sense in which
the legislature intended to use at least one of them by any means clear. As defined by the law
dictionaries, the word holder means one who is legally in possession of a negotiable
instrument, but of course that is not the meaning intended here. Webster gives it also the
legal meaning of one who holds land, etc., under another; a tenant.
23 Nev. 143, 149 (1896) State v. Wheeler
is legally in possession of a negotiable instrument, but of course that is not the meaning
intended here. Webster gives it also the legal meaning of one who holds land, etc., under
another; a tenant. But its popular meaning is one who holds, and as used here it was probably
intended to mean one who is in possession, actual or constructive, of land. One whose title
vested in him the right to the immediate possession, and who could, at any time, without let
or hindrance take actual possession, would doubtless be deemed the holder of the land,
although not then in its actual possession.
But the word owner is not so easily defined. Generally, as stated in 1 Hare, Const. Law,
355, it is nomen generalissimum, and may be applied to any defined interest in real estate.
(Gitchell v. Kreidler, 84 Mo. 476.) As used in statutes providing that property shall be
assessed to the owner, it has been held to mean the owner in fee, and not to include a lessee
(Davis v. Cincinnati, 36 Ohio St. 24; 25 Am. and Eng. Ency. 120), while in other cases what
seems to be exactly the opposite has been decided (25 Am. and Eng. Ency. 122). In
homestead statutes it includes equitable, as well as legal, owners (Lozo v. Sutherland, 38
Mich. 170; Wilder v. Haughey, 21 Minn. 101), while in condemnation proceedings it
embraces all having estates in the land, either in possession, reversion or remainder (Watson
v. N. Y. Cen. R. R. Co., 47 N. Y. 162), and in statutes providing for redemption from forced
sale, all who have a substantial interest in the premises (Cooley, Tax. 558). In Wellington v.
State, 52 Ark. 266, a prosecution under a statute forbidding hunting within enclosures without
the consent of the owner, the court said: One who has the control, use and possession of
land, as against the real owner and all others, is, in law, the owner of such lands within the
meaning of the act.
In Moeller v. Harvey, 16 Phila. 66, and Schott v. Harvey, 105 Pa. St. 222, an act of the
legislature requiring the owners of factories to provide fire escapes for the use of their
employees came under review, and it was held that the statute applied to the lessee of a
factory who was actually operating it, and not the owner in fee of the premises. In the former
case the court said: In like manner he is an owner to whom the premises will revert on the
expiration of the lease, while the lessee has a right of ownership which is equally real,
whether the term is for one or a hundred years.
23 Nev. 143, 150 (1896) State v. Wheeler
the premises will revert on the expiration of the lease, while the lessee has a right of
ownership which is equally real, whether the term is for one or a hundred years. In fine, they
are owners who have a title that will or may be reduced to possession at a future period, and
they who are in possession by virtue of an existing right, however brief. And again in the
latter case (105 Pa. St. 228): The term owner' is undoubtedly broad enough to cover either
view of the case. A tenant for years, a tenant for life, and a remainder man in fee is each an
owner. So there may be a legal and an equitable estate; the trustees and cestui que trust are
both owners. When, therefore, the legislature used a term of such varied meaning, we must
presume they intended such an owner as is in the possession and occupancy of the premises,
who has the immediate dominion and control over it, and the manner of whose use makes a
fire escape necessary. Had the owner in fee been intended, it was easy to have said so.
Where words of such uncertain meaning are used in a statute, the sense they were intended to
bear must be determined from a consideration of the whole statute and its subject matter,
aided by certain general rules of statutory construction, presumed to be known to lawmakers
as well as courts, such as that some kinds of statutes are to be construed strictly and others
liberally.
1. First, we will consider the statute and its subject matter. For some reason the legislature
saw fit to require persons owning or controlling sheep to procure licenses, but exempted from
the operation of the law the owners and holders of a certain amount of land. We must suppose
that the purpose of the law was to obtain additional revenue, but, if so, what reason could
there have been for the exemption? If it was proper to put this additional burden on those
engaged in the sheep industry, why exempt the owners of land any more than the owners of
watches or any other kind of property? It is difficult, indeed, to find a satisfactory answer to
this inquiry. There seems but little, if any, logical connection between the two. The sheep do
not have to be kept on the land, nor need the land be used in connection with them. Indeed, it
need not even be in the same county. But we are bound to suppose there was some reason for
it, some honorable reason for it, as in construing a law we are not permitted to indulge in
the belief, if it can be avoided, that the legislature acted either for the purpose of favoring
certain individuals, or to injure and destroy the business of others, or without reason of
any kind.
23 Nev. 143, 151 (1896) State v. Wheeler
for it, some honorable reason for it, as in construing a law we are not permitted to indulge in
the belief, if it can be avoided, that the legislature acted either for the purpose of favoring
certain individuals, or to injure and destroy the business of others, or without reason of any
kind. If this reason can be found, it may assist in elucidating the statute. It has been suggested
that it was thereby intended to reach and subject to taxation wandering bands of sheep from
other states that have heretofore been driven in for pasturage after one assessing season
closes, and then driven out again before the next opens, thereby robbing our herds of
pasturage, and yielding no revenue to our coffers. As is well known, some of these wandering
shepherds are like the Arabshere to-day and there to-morrowwithout fixed places of
habitation anywhere. They are the owners of no land by any sort of title, and, consequently, it
only being intended to reach them, the exemption should be extended to all who are; for those
holding land either by possessory title, by lease, by contract of purchase from the state, or by
homestead or pre-emption claim, are generally, equally with those holding by title in fee,
permanent residents of the state, and pay taxes on their property the same as other residents.
Perhaps there is not much force in this reasoning, and the suggested purpose of the enactment
of the law in its present shape may not be the true one, but it is at least a reason, and about the
only one that can be offered that should have had any weight with the legislature.
2. Another reason for the conclusion that it could not have been the intention to exempt
only owners in fee, is that the great mass of land held for stock purposes in this state is not
held by that title, but by contract of purchase from the state. Of this land, while having no
legal title, the vendees are the equitable owners, and they are generally considered and treated
as the full owners thereof. Such lands are mortgaged, conveyed, taxed, homesteaded and sold
under execution, substantially the same as land held under the most absolute title, and it
cannot have been the intention that such ownership, sufficient for all other purposes, should
be insufficient for this. The same may be said of possessory titles to the public domain.
Except as against the United States or its privies, the holders of such titles are treated, for
most purposes, as the absolute owners of the property.
23 Nev. 143, 152 (1896) State v. Wheeler
States or its privies, the holders of such titles are treated, for most purposes, as the absolute
owners of the property. And yet, if all such titles are not sufficient under this law, then none
are; for the legislature must either have meant all of them, or none but title in fee.
3. But perhaps the strongest reason that can be given for the conclusion which we here
announce is that this is a penal statute, and as such requires a strict construction when against
a citizen, but a liberal one in his favor. A penal statute is one which imposes a forfeiture or
penalty for transgressing its provisions, or for doing a thing prohibited. (Dwarris, Stats. 74;
Woolverton v. Taylor, 132 Ill. 137; Bond v. Railroad Co., 67 Iowa, 716.) Penal statutes
include those that enforce a fine or pecuniary recovery. (Sutherland, Stat. Const., sec. 358.) It
has sometimes been said that revenue laws are not penal, but however that may be with
statutes imposing taxes generally, which are to be collected by the means ordinarily resorted
to for the collection of taxes, any statute which imposes pecuniary penalty, fine and
imprisonment for a failure to pay the tax, should certainly be classed as a penal statute, and
subjected to a strict construction. (Bishop, Writ. Laws, sec. 195; Sutherland, Stat. Const. 364;
Com. v. Standard Oil Co., 101 Pa. St. 150; Am. Net Twine Co. v. Worthington, 141 U. S. 468;
Rice v. United States, 53 Fed. Rep. 910; Endlich, Stat. Inter., sec. 346.) That is the case with
the law now under consideration. It imposes taxes not generally resting on members of the
community; it declares everyone engaging in the sheep business, without procuring the
license therein required, to be guilty of a misdemeanor, and subjects him to a fine of from $50
to $250 or to imprisonment from 25 to 90 days; and it makes him liable in a civil action to a
penalty of $25, in addition to the amount found due for the license. It seems clear that it
should be classed as a penal statute, and subjected to a strict interpretation.
Being penal, the proviso exempting persons from the operation of the law should, on the
other hand, receive a liberal interpretation. Mr. Bishop states the rule thus: While the parts
of a penal statute which subject to punishment or a penalty are, from their odious nature, to be
construed strictly, those which exempt from penal consequences will, because of their
opposite character, receive a liberal interpretation."
23 Nev. 143, 153 (1896) State v. Wheeler
strictly, those which exempt from penal consequences will, because of their opposite
character, receive a liberal interpretation. (Bishop, Writ. Laws, secs. 196, 226.) To the same
effect are Sutherland, Stat. Const., sec. 227; Endlich, Stat. Int., sec. 332.
It remains but to apply these doctrines to the case. We have found that one meaning of the
word owner is the lessee or tenant of land; the word holder sometimes means the same
thing, or, as used here, the person in possession, actual or constructive, of real estate, which,
in the absence of a showing to the contrary, a tenant is always presumed to be. There is
nothing in the act to indicate that the legislature did not intend to use owner in this broad
sense, instead of the narrower one of him who has title in fee. As giving the statute the
broader construction will exempt persons from the penalties denounced by the act, the rules
above stated require us to give it this construction. The appellant contends that the tenant for
a fixed term is only the holder of property, and that the use of the term owner and holder
shows that the legislature meant more than that. But a tenant is more than a holder; he is, for
many purposes, an owner, so both words fit him. To our minds, the legislature intended by
the use of that term, just what it has said: That is, that for a person to be entitled to the
exemption he must be both an owner and holder. It was not to be sufficient for him to be the
owner of land which he had leased to another, or from the possession of which he was
excluded by the adverse holding of another; nor was the mere holding of land without color
of title to be sufficient. By this construction both words are given an appropriate meaning,
and neither are used tautologically.
In conclusion, it must, at least, be admitted that the meaning of the term owner and
holder is not clear, and is a matter of reasonable doubt. Such being the case, we cannot do
better than to quote from Endlich, Stat. Int., sec. 330, where the learned author says: The
effect of the rule of strict construction might almost be summed up in the remark that where
an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the
canons of interpretation fail to solve, the benefit of the doubt should be given to the subject,
and against the legislature which has failed to explain itself."
23 Nev. 143, 154 (1896) State v. Wheeler
given to the subject, and against the legislature which has failed to explain itself. And again
from the opinion of the court in Hines v. Railroad Co., 95 N. C. 437, that the plain meaning
[of words and phraseology] must not be extended by inference, and when there is reasonable
doubt as to their true meaning, the court will not give them such interpretation as to impose
the penalty. Presumptively, the conclusion to which these principles lead us is in accordance
with the legislative intent, for we must suppose the lawmakers to have been in the possession
of such common rules of statutory construction as these, and that, had they not intended the
act to be thus construed, they would have used the term owners in fee, or some equivalent
term; and it may be added that if it is not in accordance with that intention, it will be very
easy to change the law so as to leave no doubt concerning it.
The judgment is affirmed.
____________
23 Nev. 154, 154 (1896) Watt v. Nev. Cent. R.R. Co.
[No. 1457.]
GEORGE WATT, Respondent, v. THE NEVADA CENTRAL RAILROAD COMPANY,
Appellant.
EvidenceIncompetent, Admitted at Trial, Entitled to Full Weight.Evidence may tend to prove the issues in a
case, and yet be incompetent; but, if such evidence be admitted at the trial of a case without objection, full
weight must be given it in considering the question whether or not the evidence is sufficient to sustain the
findings.
DamagesTestimony of Former Employee of Railroad Tending to Show Habit on the Road of Running
Engines, Pertinent.In an action to recover damages caused by a fire negligently set by a locomotive, the
testimony of a former engineer that he generally kept both dampers of the ash-pan open, except when going
over a bridge, and that other engineers for whom he had fired did the same, is admissible to show the habit
on defendant's road of running the engine with both dampers open.
NegligenceDuty of Railroad CompanyCharacter of Engines.It is the duty of a railroad company to supply
its road with such engines as will be least liable to set fire, and be reasonably safe from destroying property
of others along its line, and the failure to do so is want of ordinary care and prudence.
23 Nev. 154, 155 (1896) Watt v. Nev. Cent. R.R. Co.
Facts Concerning Danger from Engines, Common Knowledge.It is common knowledge, based on common
observation, in this railway age, that railroad engines of the most approved construction, and with the best
known appliances, and managed by the most skillful engineers and firemen, are liable to, and do frequently,
from necessity or by accident, emit sparks and fire, capable of igniting dry rubbish or combustible matter
along their pathway.
Duty of Railroad CompanyTrack Reasonably Clear of Combustible Matter.A railroad company must be
diligent in keeping its track and right of way reasonably clear of all combustible matter as is liable to be
ignited by sparks or cinders from its engine, and thence communicated to the property of adjoining owners.
Evidence of Cause of FireSufficiency Of.Evidence of several persons that they had frequently seen fires
started immediately after defendant's train had passed; that the fire that destroyed plaintiff's property
occurred shortly after the passage of a train; that one of witnesses, on subsequent investigation, had seen
coals scattered along the track; and that the wind was blowing from the right of way towards plaintiff's
premises, was sufficient, especially in the absence of testimony pointing to any other probable agency, to
justify a finding that the fire was set by defendant's locomotive.
Verdict Contrary to EvidenceNo Substantial ConflictNew Trial.If there be no substantial conflict in the
evidence upon any material point, and the verdict or decision be against such evidence upon such point, or
where the verdict or decision strikes the mind, at first blush, as manifestly and palpably contrary to the
evidence, the supreme court will direct a new trial.
IdemFinding Based on Insufficient Evidence.Uncertain estimates, of plaintiff and his neighbors, of the
number of loads stacked, the weight of the loads, and the height of the stacks, cannot be considered as
reaching the rank of conflicting evidence sufficient to support a finding based thereon, in view of evidence
of the actual number of acres of hay land, as ascertained by a reliable survey of the ground, and the fair
average yield of two tons per acre, as admitted by the plaintiff.
DamagesPossibilities and Conjectures Not Considered in Estimating.Loss which may arise at some
indefinite future period through the destruction of hay which plaintiff had for several years been saving, to
feed his stock in case a severe winter should come, is too conjectural to be considered in estimating
damages.
Value of Hay DestroyedNearest Market Value Governs.As the hay had no value for present use, and no
ascertainable value for future use as food for plaintiff's stock, in the absence of a showing that it had any
greater market value where it was situated, its value in the nearest market, at the time it was destroyed, less
the cost of transportation, must control.
ValueFinding Not Supported by Evidence.The finding that the value of plaintiff's hay press was two
hundred dollars, the sum alleged in the complaint, is not supported by the evidence, there being no
evidence in the record tending to show any greater value of the press than it cost at plaintiff's ranch.
23 Nev. 154, 156 (1896) Watt v. Nev. Cent. R.R. Co.
On Rehearing.
Measure of DamagesValue of Hay Destroyed by Fire.In an action against a railroad company for
destruction of hay by fire, it appearing that there was no market for the hay at the place where it was
destroyed, the measure of damages is the value of the hay at the nearest market, less the cost of
transportation there, and not such value plus the cost of transportation from such market to the place where
the hay was destroyed.
AppealAssignment of ErrorInsufficiency of EvidenceFindings of FactReview.Under Stats. 1893, p.
89, which provides that, when the motion for a new trial designates, as the ground thereof, the insufficiency
of evidence, it shall be a sufficient assignment of error to specify that the decision is not supported by, or is
contrary to, the evidence; and if the evidence, taken altogether, does not support the decision, on appeal,
the case shall be reversed, without regard to whether there are express findings upon all of the issues.
Where the assignment is that each and every part of each and every finding of fact by the court is wholly
unsupported by the evidence, and against the evidence, the appellate court is not bound by an express
finding of the lower court on a certain issue, unless supported by the evidence.
Appeal from the District Court of the State of Nevada, Lander county; A. L. Fitzgerald,
District Judge:
Action by George Watt against the Nevada Central Railroad to recover damages for loss of
property caused by fire from defendant's engine. From a judgment for plaintiff, and an order
denying a new trial, defendant appeals. Reversed.
The facts sufficiently appear in the opinion.
O. A. Murdock, James F. Dennis, and Dickson, Ellis & Ellis, for Appellant:
I. It appears from the plaintiff's own testimony that he had no use whatever for his hay at
the time of its destruction; that up to the time of the trial he had had no use for it, nor would
he have made any use of it had it not been destroyed, and, furthermore, that he never would
have had any use for it in the future unless a winter of unusual severity should make it
necessary to use it in feeding his stock. How much stock he had nowhere appears in the
evidence. For aught that does appear, the hay that was destroyed was more than twice as
much, or, for that matter, five times as much as would be needed to carry all the stock that he
had through any winter, no matter how severe.
23 Nev. 154, 157 (1896) Watt v. Nev. Cent. R.R. Co.
any winter, no matter how severe. The burden is upon the plaintiff to establish the damages
which he has sustained. If he would recover anything beyond nominal damages, he must
make it appear that he has suffered more than nominal damages. If in any case he may be
permitted to recover damages in excess of the market value of the property lost, and seek to
do so, he should be required to show clearly that the market value will not compensate him,
and clearly to what extent it would fall short of compensating him.
II. If this judgment were permited [permitted] to stand, the plaintiff would recover from
the defendant $9,760 for property, which, if we take the plaintiff's own word for it, would
never have had any value to him except upon the contingency of a winter of unusual severity,
and then such part of it only would have any value as might be required to feed such stock as
he might have. In the absence of such a winter the hay would have been suffered to stand and
rot upon the ground. Such a contingency is too remote and uncertain to be made the basis for
the allowance of prospective damages. It is too uncertain as the basis for a judgment for
damages in a court of justice. Compensation, just compensation only, in the light of the
evidence, is the object which the law seeks to attain.
III. In all cases of tort, as in an action founded upon a breach of contractunless the
defendant is chargeable with malice, or with willful or intentional wrong in respect of the act
complained of, such as would expose him to vindictive or punitive damagesjust and full
compensation for the plaintiff's loss is the measure of damages. This rule is sanctioned by the
principles of natural justice. It is the limit which the law also has set to the plaintiff's
recovery. (Baldwin v. Porter, 11 Conn. 483; Waters v. Stevenson, 13 Nev. 157; Sutherland on
Damages, vol. 1, p. 17; DeCosta v. Mass. Mining Co., 17 Cal. 613; Harvey v. The Sides S. M.
Co., 1 Nev. 539; Sedgwick on Damages, vol. 1, sec. 172; Strohm v. R. R. Co., 96 N. Y. 305;
Covert v. Gray, 34 How. Pr. Rep. 450; Clark v. The Land Mining Co., 6 Nev. 203.)
IV. In determining the value of an article in a case such as this, the market price is the test
usually applied, and if there is no market for the article at the place where the plaintiff would
be entitled to compensation, the value at the nearest market governs, adding thereto or
deducting therefrom the cost of transportation as the equity of the particular case may
require. {1 Sedgwick, Dam., secs.
23 Nev. 154, 158 (1896) Watt v. Nev. Cent. R.R. Co.
plaintiff would be entitled to compensation, the value at the nearest market governs, adding
thereto or deducting therefrom the cost of transportation as the equity of the particular case
may require. (1 Sedgwick, Dam., secs. 244-246; 2 Sutherland, p. 375; 2 Sedgwick, sec. 495.)
V. What is meant by the market price or value of an article and how it is to be ascertained,
is well stated in the case of Lawrence v. Boston, 110 Mass. 126. (Railroad Co. v. Woodruff,
49 Ark. 390; Blydenburgh v. Walsh, Baldw. 331, being case No. 1583 of the Federal cases.)
VI. Before the plaintiff can recover at all in this action, it is incumbent upon him to
affirmatively establish by a satisfactory preponderance of proof: (1) That the defendant,
through its agents or employees, actually caused the fire to the damage of plaintiff. (2) That it
was due to some negligence of the defendant. The general theory is that a party is not
responsible for the reasonable exercise of a right unless upon proof of negligence,
unskillfulness or malice in the exercise of that right. (Burroughs v. Housatonic R. R. Co., 15
Conn. 124; R. R. Co. v. Yeiser, 8 Barr. 366.) We cite these cases in connection with both
propositions, for the sake of convenience, since evidence which would be competent on the
question of the cause of the fire, as well as on the question of the defendant's negligence, is so
blended that the cases are equally applicable upon both points, and, if plaintiff shall fail in
establishing either of the points as to the cause of the fire or as to defendant's negligence, he
must wholly fail in his case. This was held in the case of Longabaugh v. V. & T. R. R. Co., 9
Nev. 284, and we take it cannot be successfully denied by counsel for the plaintiff. Plaintiff
must prevail on both points or fail altogether.
VII. Negligence is an independent fact which must be established by proof, and the mere
proving that the engine started the fire (which is denied) would not be sufficient, under the
circumstances in the case, to show that there was negligence. When this railroad company
was incorporated under the laws of the state of Nevada, it had the right to operate its engine
by steam. It is a fact of common knowledge that the engine will emit sparks and drop some
coals, and in the exercise of its franchise it had a right, under the law, to use fire to generate
steam, and to emit sparks from its engine.
23 Nev. 154, 159 (1896) Watt v. Nev. Cent. R.R. Co.
law, to use fire to generate steam, and to emit sparks from its engine. True, it had no right to
carelessly emit sparks in such a manner as to set fire to property along the line of its road, and
the mere emission of sparks, if any were emitted (which we deny), or the dropping of coal by
the engine, is not a per se negligence. (Denver T. & G. R. Co. v. DeGraff, 29 Pac. (Colo.)
665.)
Henry Mayenbaum, for Respondent:
I. This case is sustained on all points, not only by preponderance of evidence, but by
evidence beyond a reasonable doubt. On appeal, however, it is enough that the evidence tends
to prove the issues. This rule prevails everywhere, and has been insisted upon by this court in
numerous cases in the Nevada reports. There is no exception taken, as all the evidence was
admitted without objection under the stipulation. Without recurring to the numerous cases in
the Nevada reports, it is sufficient to cite the case of Vietti v. Nesbitt, 22 Nev. 390, where this
court tersely lays down the rules: (1) That where testimony is admitted without objection no
advantage of the fact of its incompetency can be taken afterwards. (2) Facts found by the
trial court upon conflicting evidence are conclusive on appeal. (Hayne New Trial and
Appeal, sec. 98.)
II. The cases bearing on the questions treated upon in this brief are very numerous. The
following will suffice to illustrate every point in the case at bar. Almost every one of these
authorities cited here has a number of points applicable to the case at bar: Billings v.
Fitchburg R. Co., 58 Hun, 605; Black v. Aberdeen & W. E. R. Co., 115 N. C. 667; Blue v.
Aberdeen & W. E. R. Co., 23 S. E. 275; Chicago, St. P., M. & O. Ry. Co. v. Gilbert, 52 Fed.
711; Chicago & E. R. Co. v. Zimmerman, 40 N. E. 703; Chicago, St. L. & P. R. Co. v.
Barnes, 2 Ind. App. 213; Collins v. N. Y. Central, 58 Hun, 601; Clune v. Milwaukee & N. Ry.
Co., 75 Wis. 532; Cantlon v. Eastern Ry. Co., 45 Minn. 481; Cole v. Lake Shore & M. S. Co.,
63 N. W. 647; Deane v. Chicago, M. & St. P. Ry. Co., 39 Minn. 413; Flinn v. S. F. & S. J. R.
R., 40 Cal. 14; Fort Scott Ry. Co. v. Tubbs, 47 Kan. 630; Fort Worth Ry. Co. v. Hogsett, 67
Tex. 685; Fort Worth Ry. Co. v. Wallace, 74 Tex. 581; G.
23 Nev. 154, 160 (1896) Watt v. Nev. Cent. R.R. Co.
T. R. R. v. Richardson, 91 U. S. 454; G. C. & S. F. Ry. Co. v. Kluge, 17 S. W. 944; G. C. & S.
S. Ry. Co. v. Johnson, 54 Fed. 474; Greenfield v. Ry. Co., 83 Ia. 270; Gram v. Ry. Co., 1 Md.
252; Genung v. Ry. Co., 31 N. Y. Supp. 97; Gibbens v. R. R. Co., 66 Wis. 161; G. H. & S. A.
Ry. Co. v. Polk, 28 S. W. 353; G. R. Ry. Co. v. Brinkman, 64 Md. 52; Hagan v. Ry. Co., 86
Mich. 615; Haugen v. Ry. Co., 3 S. D. 394; Hockstedler v. R. R. Co., 88 Ia. 236; Hayes v. Ry.
Co., 45 Minn. 17; Ry. Co. v. Overman, 110 Ind. 538; Ry. Co. v. Searight, 28 S. W. 39; Ry.
Co. v. Peninsular Co., 27 Fla. 157; Knowlton v. Ry. Co., note 1, L. R. A. 625; Kelsey v. R. R.
Co., 45 N. W. 204; Kertz v. Ry. Co., 84 Wis. 171; Ry. Co. v. Hart, 119 Ind. 273; Ry. Co. v.
Nitsche, 126 Ind. 229; Longabaugh v. V. & T. R. R. Co., 9 Nev. 271; Martin v. Ry. Co., 62
Hun, 181; Miller v. Ry. Co., 90 Mo. 389; Ry. Co. v. Kellogg, 94 U. S. 469; Ry. Co. v. Goode,
26 S. W. 441; Moore v. Ry. Co., 78 Wis. 120; N. P. v. Lewis, 51 Fed. 658; O'Neil v. Ry. Co.,
115 N. Y. 579; Ry. Co. v. Trapp, 4 Ind. App. 69; Pattent v. R. R. Co., 87 Mo. 117; R. R. Co.
v. Hogsett, 87 Tex. 687; Smith v. Ry. Co., 55 N. W. 717; Stacy v. R. Co., 85 Wis. 225; R. Co.
v. Ransom, 33 Fla. 406; Sugarman v. R. Co., 42 N. Y. St. Rep. 30; R. Co. v. Walsh, 38 N. E.
535; Ry. Co. v. Gaines, 26 S. W. 433; Ry. Co. v. Keller, 36 Neb. 189; Ry. Co. v. Eddy, 41
Pac. 413; Yankton F. I. Co. v. Fremont, 64 N. W. 514.
III. The questions involved in this case are very simple: (1) Did defendant have, on its
right of way, dry grass capable of being ignited? (2) Did the engine of defendant set it afire
and burn plaintiff's property? (3) What was the value of the property burned?
IV. If there was an accumulation of dry grass on the right of way, and the defendant's
engine set it afire, by means whereof the plaintiff's property was burned, all the testimony in
regard to engines is of no avail. They may be the most perfect extant, yet the defendant is
liable for the property burned. (Longabaugh v. V. & T. R. R. Co., 9 Nev. 301.)
V. All the testimony of the defendant about their engines amounts to nothing, because it is
conceded, even by Mr. Slater, that all engines throw fire.
VI. Mr. Watt testified that the reason of accumulating a large quantity of hay was that
he had lost $100,000 of stock in the hard winter of 1SS9.
23 Nev. 154, 161 (1896) Watt v. Nev. Cent. R.R. Co.
large quantity of hay was that he had lost $100,000 of stock in the hard winter of 1889. He
could have saved at least $50,000 worth of stock if he had the quantity of hay that defendant
burned; that this hay is worth to him $50,000. He piled up this hay to feed his stock and to
avoid the calamity of 1889 in the future. As his stock accumulated, so he kept pace with the
accumulation of hay. However, he only sued for the actual value of the hay. The hay was
red-top, and the best in the country. There was none for sale. The hay was worth $20 per ton
at least. He could not replace it for less. There was none for sale nearer than Carson valley.
He bought last year, at Battle Mountain, inferior hay at $18 per ton and it cost $10 freight
from Battle Mountain to Watt's Reese river ranch, which would make the value at the ranch
$28 per ton. Austin hay is not as good as the hay burned. In Austin the hay was, last year in
October, $10 to $12 per ton. The value of the hay burned is twice the value of Austin hay. He
would not sell, but if he were compelled he would not take less than $20 a ton.
VII. The compensation for the destruction of the hay is the sum of money which will
enable Mr. Watt to replace it. And that, a complete indemnity, requires that Mr. Watt should
receive the sum which would enable him to replace the hay. Sedgwick, sec. 246, says: If
there is no market for the article at the place where the plaintiff would be entitled to
compensation, the value at the nearest market governs. In addition to this the cost of the
transportation of the property to the place of compensation is usually to be added. There is
no market at Watt's, hence the value of the hay at the nearest market governs. In addition to
this the costs of transportation to Watt's ranch must be added. Otherwise he could not replace
it where he had it for his use and not for sale.
VIII. The statute of 1893, p. 88, was only intended, and so it appears by its express
language, to do away with the technicality of making specifications of error. But it does not
say that, where there is any substantial evidence proving, or tending to prove a fact, the
supreme court can reverse a case because there is opposing testimony contradicting the fact.
The statute has not abrogated the rule which universally prevails in all appellate courts.
23 Nev. 154, 162 (1896) Watt v. Nev. Cent. R.R. Co.
versally prevails in all appellate courts. The supreme court has no such power. The
constitution guarantees the right of trial by jury, or by the court sitting as a jury, if the parties
so agree. Upon any issue their verdict or decision is conclusive if founded on any substantial
proof. However prone we may be to think ourselves competent to judge of testimony, by
merely reading the same, it is utterly impossible to judge of it as the jury and court who tried
the case, and who had the living witnesses before them, and therefore could see their
demeanor, hear their statement, weigh their candor, hesitation, faltering, prejudice, motive,
etc.
IX. Mr. Watt could only put himself in the same condition in which he would have been if
the hay was not destroyed by a sum of money which would enable him to buy the same
quantity of hay at the nearest market and ship it and place it at his ranch where his hay was
destroyed by the defendant. We must ever keep in mind that the court below did not allow the
transportation charges. The judgment is only for $10 per ton, the market value in all the Reese
river country. It surely cannot be that the rule which, according to all authorities, gives to Mr.
Watt the transportation charges, should be applied against Mr. Watt so as to deduct from the
market value at Austin what ought to have been added by the court below, and this to the
entire destruction of his right to recover anything. (Sutherland on Damages, 174.)
By the Court, Bonnifield, J.:
This action was commenced by the plaintiff in the district court of the state of Nevada, in
and for Lander county, to recover of the defendant damages for the destruction of a certain lot
of hay, a hay press and for injury to pasture land of the plaintiff alleged to be caused by fire
from the defendant's railroad engine. The case was tried by the court without a jury, and
judgment given in favor of the plaintiff for $10,060 damages, the value of the property
destroyed, as found by the court, with legal interest and $1289 70 costs. The defendant
appeals from the judgment and order of the court denying the motion for a new trial. One of
the grounds on which said motion was based is: Insufficiency of the evidence to justify the
decision of the court."
23 Nev. 154, 163 (1896) Watt v. Nev. Cent. R.R. Co.
of the evidence to justify the decision of the court. The findings of fact on the issues made
by the pleadings are very full and voluminous, and to each material finding the defendant
excepted on the ground that the same is wholly unsupported by the evidence and contrary
thereto.
Appellant's counsel argues that the findings are not supported by competent evidence, and
this court is asked to exclude all incompetent evidence from its consideration in reviewing the
testimony to determine its sufficiency or insufficiency to support said findings. But evidence
may tend to prove the issues in a case and yet be incompetent. If such evidence be admitted at
the trial of a cause, full weight must be given it in considering the question whether or not the
evidence is sufficient to sustain the findings. (Vietti v. Nesbitt, 22 Nev. 390; Sherwood v.
Sissa, 5 Nev. 349; McCord v. O'Neall, 16 Cal. 397; Pierce v. Jackson, 21 Cal. 636; Hayne,
New Trial and Appeal, sec. 98.)
In the present case all evidence offered was admitted without objection, by stipulation of
the parties, except hearsay evidence. The argument of counsel is more pertinent to the
question as to the weight of the evidence than to the matter of its competency.
There is no contention as to the sufficiency of the findings of fact to support the judgment,
and we do not deem it necessary to consider but a few of the many findings and review but
portions of the evidence upon which they seem to be based. It is admitted by the defendant
that its railroad track and right of way pass through the meadow land of the plaintiff where it
is alleged the fire occurred and his property was destroyed. The court found that on the 11th
day of October, 1893, the defendant, while running its train of cars on said track and right of
way over and across said lands, carelessly and negligently used and operated a locomotive
engine defectively constructed and carelessly and negligently omitted to use proper
appliances to prevent the emission of sparks, burning coals and fire from said engine, and
carelessly and negligently omitted to keep the said right of way free and clear of dry and
combustible materials, but carelessly and negligently permitted the accumulation of large
quantities of dry grass and weeds on said right of way adjoining the said land of plaintiff,
and negligently and carelessly permitted its said engine to emit and drop sparks, burning
coals and fire into said dry grass and weeds on said right of way adjoining plaintiff's said
land, and thereby the defendant negligently and carelessly ignited and set on fire said
grass and weeds, and negligently and carelessly permitted the said fire to spread in a
continuous fire to said pasture lands, hay and hay press, and carelessly and negligently
permitted said pasture, hay and hay press to be wholly destroyed by said fire without any
fault of the plaintiff."
23 Nev. 154, 164 (1896) Watt v. Nev. Cent. R.R. Co.
adjoining the said land of plaintiff, and negligently and carelessly permitted its said engine to
emit and drop sparks, burning coals and fire into said dry grass and weeds on said right of
way adjoining plaintiff's said land, and thereby the defendant negligently and carelessly
ignited and set on fire said grass and weeds, and negligently and carelessly permitted the said
fire to spread in a continuous fire to said pasture lands, hay and hay press, and carelessly and
negligently permitted said pasture, hay and hay press to be wholly destroyed by said fire
without any fault of the plaintiff.
Proper Appliances: Is the finding that the defendant negligently omitted to use proper
appliances to prevent the emission of sparks, burning coals and fire from the engine
supported by the evidence? It is admitted by the evidence on the part of the defendant that
there was no wire or iron netting or screen in the ash-pan of engine No. 1, the engine that
hauled the train on the day the fire occurred. There is evidence on the part of the plaintiff that
if there be no such netting in the back door of the ash-pan, that, when the back damper is
open and the engine is moving forward, hot cinders and coals of fire are liable to and do drop
out through the back door when the damper is up, and are liable to ignite the oil which leaks
more or less from the train and set fire to combustible material on and by the side of the track;
that there is naturaly [naturally] a certain amount of burning coals that drop into the ash-pan,
and, in the absence of such netting, the natural shaking of the engine in motion, when the
damper is raised, will roll these coals out on the ground, and, if there be combustible matter
on the ground, they will set it on fire; that when these coals drop out they may strike the end
of the ties and roll three or four feet from the track; that it is necessary to have the back
damper of the ash-pan open to get draft; that both dampers are nearly always open except
when crossing a bridge; that by some means said engine No. 1 set six fires in passing along
on a ranch adjoining the plaintiff's ranch about a month before the fire in question. Walter
Davis testified that he was engineer on this road about two and a half years; that he quit about
the middle of February, 1893; that he generally ran with both dampers open except when
going over a bridge; that he fired about two years and a half for seven different men on
this road before he became engineer; that these men always ran with both dampers open,
and made him run that way.
23 Nev. 154, 165 (1896) Watt v. Nev. Cent. R.R. Co.
dampers open except when going over a bridge; that he fired about two years and a half for
seven different men on this road before he became engineer; that these men always ran with
both dampers open, and made him run that way. The testimony of Davis is pertinent as
tending to show the habit on this road of running the engines with both dampers open. (Grand
Trunk R. R. v. Richardson, 1 Otto, U. S. 454.) There is a great deal of other evidence tending
to show the necessity of such netting in the ash-pan to prevent fire escaping therefrom. On the
contrary there is evidence on the part of the defendant tending to prove that coals of fire or
hot cinders will not escape through the door of the ash-pan when the damper is up, even in
the absence of said netting; that there is no necessity of having such netting; that the engineer
who ran engine No. 1 on the day of the fire always kept the back damper of the ash-pan
closed, and that said engine was in good and safe condition, and had all the necessary
appliances to prevent the escape of fire.
We cannot say that the evidence is not sufficient to support the finding as to the want of
proper appliances. At least there is a substantial conflict of evidence with reference thereto,
and in such case the appellate court will not interfere. (Vietti v. Nesbitt, supra; State v. Yellow
Jacket, 5 Nev. 115; Clark v. Nevada L. & M. Co., 6 Nev. 203.)
The rule that the supreme court will not consider the weight of conflicting evidence has
been so often reiterated as to become somewhat monotonous. (McCoy v. Bateman and
Buell, 8 Nev. 126.)
That it is the duty of a railroad company to supply its road with such engines as will be
least liable to set fire and be reasonably safe from destroying property of others along its line,
is well settled. A railroad company is obliged to employ the best known appliances to
prevent injury to others from fire, and the failure to do so is want of ordinary care and
prudence. (Longabaugh v. V. & T. R. R. Co., 9 Nev. 271; Rogers v. Brighthope Ry. Co., 8
Am. & Eng. R. R. Cases, 710; Thompson on Negligence, 154-5.)
Rubbish on Right of Way: As to the finding that the defendant negligently omitted to keep
the said right of way free and clear of dry and combustible material along and adjoining said
land of plaintiff, and carelessly permitted the accumulation of large quantities of dry
grass and weeds on said right of way adjoining said land," we are of opinion it is
abundantly sustained by the evidence, which is without material conflict.
23 Nev. 154, 166 (1896) Watt v. Nev. Cent. R.R. Co.
adjoining said land of plaintiff, and carelessly permitted the accumulation of large quantities
of dry grass and weeds on said right of way adjoining said land, we are of opinion it is
abundantly sustained by the evidence, which is without material conflict. The evidence is to
the effect that the rye grass grows right along the side of the track from eight inches to three
feet in height; that there was more or less dry stubble grass which had grown up in the center
and on the edges of the track on the right of way through plaintiff's said land; that there was
dry grass there all along the right of way; that it was not a foot from the end of the ties; that
the tall grass extended along the track the length of the field; that at the place of the fire there
was quite a bunch of rye grass more than at any other place along the line; that it was four or
five feet high; that when the fire occurred this grass was very dry, as dry as it could be, and
would easily take fire; that in the fall of the fire it had not been cut off any further than the
end of the ties; that there was dry grass all along the right of way there, fifty feet on each side
of the railroad, that was not cut, and that the dry grass they had cut between the rails was left
there and would easily ignite.
We are of opinion that we are justified in saying that it is common knowledge, based on
common observation in this railway age, that railroad engines of the most approved
construction and with the best known appliances, and managed by the most skillful engineers
and firemen, are liable to and do frequently, from necessity or by accident, emit sparks and
fire capable of igniting dry rubbish or combustible matter along their pathway, and thus place
the property of adjoining owners in imminent danger of destructive conflagrations and
frequently cause the destruction of such property.
A railroad company may be supplied with the best engines and most approved apparatus
for preventing the emission of sparks, and operated by the most skillful engineers; it may do
all that skill and science can suggest in the management of its locomotives; and still it may be
guilty of gross negligence in allowing the accumulation of dangerous combustible along the
track, easily to be ignited by its furnaces and thence communicated to the property of
adjoining owners."
23 Nev. 154, 167 (1896) Watt v. Nev. Cent. R.R. Co.
owners. (Medley v. Richmond and Danville R. R. Co., 7 Am. & Eng. R. R. Cases, 493; 75
Va. Rep. 498.)
The general rule is that a railroad company must keep its track and right of way
reasonably clear of all such substances as are liable to be ignited by sparks or cinders from its
engines. (Eddy et al. v. Lafayette et al., 49 Fed. Rep. 807; 8 Am. & Eng. Ency. 14; Kellogg
v. Chicago R. R. Co., 26 Wis. 223; Jones v. Mich. Cent. R. R., 59 Mich. 437; Black v.
Railroad, 115 N. C. 667.) A railroad company must be diligent in keeping its track clear of
such combustible matter as is liable to be easily ignited. (Longabaugh Case, supra.)
What Caused the Fire? We are of opinion that the evidence reasonably supports the
finding that it was caused by fire from the defendant's engine. The testimony of the plaintiff is
to the effect that, in passing up and down the railroad, he frequently saw trains pass and
within an hour or so thereafter had seen the sagebrush and dry grass on fire, and he had seen
fires started immediately after the train had passed; that he saw it thus in September, about a
month before the fire in question; that he frequently saw ties burnt in the center along the
track; that he saw coals scattered along the railroad, etc. Watt, Jr., testified to the same effect
and that he was at the fire on the Watt ranch in about two hours after the train had passed;
that he went to where the fire started and investigated it; that in his opinion the fire started
right along the railroad track; that he could see coals on the edges of the rails in many places;
that the wind was blowing from the railroad towards the stacks of hay; that the fire widened
from the track across the meadow to the stacks; that in his opinion the engine set the fire, and
nothing else.
Fred Steiner, whose ranch adjoins the plaintiff's ranch, testified, in effect, that he had seen
many fires kindled by passing engines ever since the road was built; that he and his family
always kept watch for fires when the trains passed his place, and had put out many fires set by
the engines; that in the latter part of September, a short time before the Watt fire, the engine
(No. 1) set six fires on his ranch in passing along a distance of a mile or a mile and a half.
O'Donald testified that in December, after the fire at Watt's ranch, he put out two fires
that had been set by the engine on this ranch, near the track and near the place where
the fire occurred in on the 11th day of October, before.
23 Nev. 154, 168 (1896) Watt v. Nev. Cent. R.R. Co.
Watt's ranch, he put out two fires that had been set by the engine on this ranch, near the track
and near the place where the fire occurred in on the 11th day of October, before.
Walter Davis testified, in substance, that he was engineer on this road for about two years
and a half, and up to February, 1893; that he ran engines No. 1 and No. 5 from the start, then
No. 1 and No. 2; that he frequently set fires by these engines along the road; that he had set as
many as twelve to fifteen in a trip; that about two years ago he set fire to Watts' meadow,
where the late fire occurred.
We are of opinion that the evidence affords reasonable presumption and inference that the
defendant's engine was the agent that set the fire that destroyed the plaintiff's property,
especially in the absence of evidence tending to point to any other agency or probable agency.
In Gibbons v. Wisconsin Valley Ry. Co., 25 Am. & Eng. R. R. Cases, 479, the circumstances
and evidence tending to show the origin of a fire are very much like these of the present case,
and the court held that they were sufficient to justify the finding of the jury that the fire was
set by the locomotive.
The Number of Tons of Hay: The court found that the number of tons of hay destroyed was
976. There were several modes adopted on the part of plaintiff at the trial in arriving at the
estimated amount of hay.
First: The plaintiff testified, substantially, that he should think he stacked in 1890, 250
tons; that in 1891 he thought he stacked in the neighborhood of the same amount; that in
1892 he thought it was over 300 tons, or in that neighborhood; in 1893 he thought perhaps he
stacked in the neighborhood of 200 tons; that he did not take any measurements only from
observation; that he did not handle the business himself; that he might have been there, off
and on, while the hay was being put up, but never stayed any length of time.
Second: That he should judge that there were some 150 to 175 acres of hay land,
somewhere along there; that he never measured it; that in a good year he thought you could
get two tons or over of hay to the acre; that in 1891 and 1893 the crops were not so good as
in 1890 and 1892; that two tons would be a fair average yield. Watt, Jr., who harvested the
hay each of the four years, estimated the number of acres of hay land at 150 to 165, and
the yield per acre at 1-3J4 to 2 tons.
23 Nev. 154, 169 (1896) Watt v. Nev. Cent. R.R. Co.
harvested the hay each of the four years, estimated the number of acres of hay land at 150 to
165, and the yield per acre at 1-3/4 to 2 tons.
Third: Estimates were made by Watt, Jr., from his recollection of the number of loads of
hay hauled and stacked each year of the four years and from the estimated weight of each load
as guessed at by him and the boys who helped in the harvesting.
Fourth: Watt, Jr., testified to the measurements he made of the length and width of the
burned ground where the several stacks had been standing, and to his estimate of the height of
each stack; that he estimated that the stacks would each square 16 feet high, and from these
measurements and estimated heights he calculated 976 tons. Dennis Scully, a surveyor,
measured the height of the two stacks of Fred Steiner on an adjoining ranch, and found one to
be 10-1/2 feet and the other 11 feet. Fred Steiner testified that he had taken notice of Watt's
stacks a short time before they were burned; that a part of them probably was as high as his,
but that he did not think they would average as high as his. Watt, Jr., testified that he was
quite familiar with Steiner's stacks; that he thought some of Watt's were a little higher than
Steiner's; but that they were about the same, just about the same. And yet his calculation is
based partly on 16 feet as the height of the Watt stacks, although the accuracy of Scully's
measurements of the Steiner stacks was not questioned at the trial or in this court. If the
Scully measurements of these stacks and the observations of Steiner and Watt, Jr., as to the
relative height of the two sets of stacks can be relied on as being approximately correct, then
the calculation of 976 tons, based on the measurement of the burnt ground where the stacks
stood, and the estimated height of the stacks, 16 feet, gives a result too much by 5/16 of 976,
or by 305 tons. There is nothing in the record by which it may be inferred that either the
plaintiff or Watt, Jr., had any particular object in wishing to know the number of tons they put
up each year, until after the hay was destroyed, or that they had, or retained in mind, very
reliable data on which to base their several calculations, and it could not be expected that
their conclusions under such circumstances would be very accurate.
23 Nev. 154, 170 (1896) Watt v. Nev. Cent. R.R. Co.
stances would be very accurate. Certain of their estimates, when tested by actual survey and
measurements, are found to be very wild. Taking all the testimony given, and estimates made,
on the part of the plaintiff, they would, doubtless, be sufficient to support the finding of 976
tons of hay as against other evidence of similar character and of no greater degree of
certainty. But Dennis Scully made a survey of the meadow land for the defendant, and, when
he was put on the witness stand, counsel for the plaintiff stated to the opposing counsel and to
the court as follows: Without going into an extensive examination, I will admit right here
that Mr. Scully is a first-rate surveyor and a faithful man. Mr. Scully produced a plat of his
survey of the hay land on Watt's Reese river ranch, and briefly testified in explanation
thereof and to its correctness. No suggestion was made that the survey as to the contents of
the hay land was not correct, until it came to the argument of the case by briefs. Then counsel
for plaintiff in the court below, and in argument in this court, claimed that Mr. Scully did not
know the boundaries of the meadow except as they were pointed out to him by Mr. Cox and
Mr. Murdock, and that there is no evidence that these lines were correctly pointed out to him.
But in this contention we cannot agree with plaintiff's counsel. It is clear from the testimony
of Mr. Scully that what were pointed out to him were the several designated places marked on
the plat, to wit: Fire first discovered, and Boundary line of fire, and End of hay stacks,
which are no part of the survey of the contents of the meadow land. Besides, we are of
opinion that a competent surveyor and reliable man could have no great difficulty in finding
and tracing the boundaries of a tract of hay land that produces two tons of red-top hay to the
acre. Mr. Scully found by his survey that the meadow or hay land contained 91.2 acres. The
evidence of Mr. Watt and Watt, Jr., shows, and the court found, that of the hay land four acres
were never cut. This leaves 87.2 acres from which the plaintiff's hay was harvested. Taking
the 87.2 acres as a basis in connection with two tons of hay to the acre as the annual product,
which the plaintiff testified would be a fair average yield, and which was corroborated by
Watt, Jr., and a nearer approach may be had and a more reliable result be obtained as to
the actual number of tons destroyed than by any of the uncertain methods adopted by the
plaintiff at the trial.
23 Nev. 154, 171 (1896) Watt v. Nev. Cent. R.R. Co.
a nearer approach may be had and a more reliable result be obtained as to the actual number
of tons destroyed than by any of the uncertain methods adopted by the plaintiff at the trial.
Notwithstanding the well-established rule which has been so often announced by this and
other courts that, where there is a substantial conflict in the evidence the appellate court will
not disturb the decision of the court below, there is another rule as well established and of as
binding force, both in actions at law and in equity, addressed to the conscience and judgment
of the court of last resort, which cannot be ignored without doing violence to the plain
principles of common justice in many cases, to wit: If there be no substantial conflict in the
evidence upon any material point and the verdict or decision be against such evidence upon
such point, or where the verdict or decision strikes the mind, at first blush, as manifestly and
palpably contrary to the evidence, the supreme court will direct a new trial. (Hayne, New
Trial and Appeal, sec. 288, and citations; Barnes v. Sabron, 10 Nev. 217.)
The duty of the supreme court to look into the evidence and grant a new trial in cases
where it appears that the evidence taken all together does not support the verdict or decision
or judgment of the court, is made clear by Stats. 1893, p. 88, as authoritatively construed in
Beck v. Thompson, 22 Nev. 121. In that case the court, while recognizing the rule applicable
in case of conflict of evidence as given above, said: As already remarked, this statute (1893)
has worked an important and quite radical change, and in a proper case, without regard to
whether there are or are not findings, seems to impose upon this court the duty of reviewing
the evidence, and determining whether the final result is supported by it. This statute was
undoubtedly designed to cut through many technicalities that have so often prevented cases
from being considered upon their merits, and should be construed in the same broad spirit in
which it was enacted, but at the same time with such conversatism as will not result in the
reversal of a case where substantial justice has been done. * * * Where there is a substantial
conflict in the testimony, the appellate court should undoubtedly not substitute its judgment
for that of the trial court, and should only interfere where, upon all the evidence, it is
clear that a wrong conclusion has been reached."
23 Nev. 154, 172 (1896) Watt v. Nev. Cent. R.R. Co.
not substitute its judgment for that of the trial court, and should only interfere where, upon all
the evidence, it is clear that a wrong conclusion has been reached.
We are of opinion that the uncertain estimates and calculations made on the part of the
plaintiff to ascertain the quantity of hay destroyed, on which the finding of the court was
based, cannot be considered as reaching the rank of conflicting evidence with the actual
number of acres of hay land, as ascertained by a reliable survey of the ground, and the fair
average yield of two tons per acre, as admitted by the plaintiff. A sense of justice impels us to
hold that the evidence given at the trial is insufficient to support the finding of 976 tons, or of
any greater number than 697.6 tons, and we are satisfied that the latter number is a very
liberal allowance in favor of the plaintiff.
The Value of the Hay: The court found that the value of the hay destroyed was $10 per ton,
and assessed the damages for its destruction at that sum. That the value of the hay at the time
and place when and where it was destroyed is the criterion of damages in this case is not
disputed by the parties, but there is a radical difference between them as to what that value
was, and as to the rules to be adopted in arriving at the value. It is claimed by plaintiff's
counsel that the value of a thing is that which it takes to replace the thing at the time and
place when and where it was to be delivered, or where and when it was taken or destroyed;
that the value of the hay in question was the sum of money that it would have required to
replace the same quantity and quality of hay in stack on the plaintiff's ranch; and, therefore,
that the plaintiff is entitled to recover the value in the nearest market and the cost of
transportation to his ranch with other necessary expenses to replace the hay. He cites several
authorities to sustain his contention. The counsel for defendant denies the correctness of these
propositions as applied to this case and also cites several authorities.
Doubtless, the rules adopted in the respective cases cited by plaintiff's counsel were
applicable to the facts and circumstances of those cases, but we fail to see their applicability
to the state of facts of the present case.
23 Nev. 154, 173 (1896) Watt v. Nev. Cent. R.R. Co.
Evidence of the cost of an article may be an element of proof to be considered in arriving
at its value. In the case at bar, if the cost of producing the hay had been shown, it would have
been proper for the court to have considered it as evidence tending to show value; and if there
were no other facts incident to the condition of things involved calculated to affect the
question of value, or which would outweigh such cost in arriving at a valuation, the court
might have properly fixed the value at such cost. The cost of an article may be inconsiderable,
and yet its value great; and its value may be trivial, and its cost great. Because the cost of
substituting property is a certain sum, it does not necessarily follow that the value of the new
property is the same sum, nor that the value of the original property is the cost of substituting
other like property in its place.
How the cost of substitution of other property can add to or detract from the value of the
property for which the substitution is made, we are unable to perceive.
It is well settled that the cost of replacing other property for property destroyed is not the
criterion of damages, but it is the actual value of the property at the time and place it was
destroyed. (Burke v. Louisville, etc., 7 Heisk. 451; 17 L. A. R. 60; Wylie v. Smitherman, 7
Ired. 236; 1 Suth., 2d ed., 12, 105; Sedg., 40, 428.)
But where the value of the property destroyed is the criterion of the amount of damages to
be awarded, and the property had no market value at the place of its destruction, then all such
pertinent facts and circumstances as tend to establish its real and ordinary value at the time of
destruction are admissible in evidence; such facts as will furnish the jury or court with such
pertinent data as will enable them reasonably and intelligently to arrive at a fair valuation, and
are all elements of proof to be considered by them. (Jacksonville, Tampa and Key West
Railway Company v. Peninsular Land, Transportation and Manufacturing Company, 27 Fla.
1; 17 L. R. A. 33.)
If the article in question has no market value, its value may be shown by proof of such
elements or facts affecting the question as exist. Recourse may be had to the items of cost,
utility and use. (Suth. 654, 378.) If the property of which the owner is deprived is a
marketable commodity, its market price is the value he is entitled to recover. {Sedg., 433;
Sullivan v. Linn, 23 Fla. 473; Suth., 109S.)
23 Nev. 154, 174 (1896) Watt v. Nev. Cent. R.R. Co.
of which the owner is deprived is a marketable commodity, its market price is the value he is
entitled to recover. (Sedg., 433; Sullivan v. Linn, 23 Fla. 473; Suth., 1098.) The market value
will govern rather than any special value to the owner. (Suth., 1113; Brown v. Allen, 35 Iowa,
306.)
In this case the value of the hay destroyed is the criterion of damages, and there was no
market at the ranch where it was destroyed. The hay was produced on the plaintiff's land. The
plaintiff testified to the effect that he stored the hay in stack each of the four preceding years
in order to have it in case of a recurrence of a severe winter, such as was experienced in
1889-90, in which he lost $100,000 worth of stock, of which he could have saved $50,000
worth if he had had on hand the hay in question; that he intended to continue to store hay for
that purpose for an indefinite number of years; that if a hard winter did not come in ten years
he would have ten years' accumulation of hay on hand; that if the hay had not been destroyed
he would have continued to keep it till a hard winter did come; that he had no other use for it
whatever; that if a hard winter did not come he might be compelled to use it, or some of it, at
some time in the indefinite future, on account of the increase of his stock; that this was a
possibility, as his stock was increasing rapidly; that he had not used any of the hay, and had
no need to use it since he commenced storing it in 1890, which was four years before.
According to the plaintiff's own showing it is manifest that the hay had no value for
present use as feed for his stock. What facts or circumstances are there disclosed that would
furnish such pertinent data to a court or jury as would enable them reasonably and
intelligently to arrive at a fair valuation for future use as feed for his stock? If there be any
element of proof of value for such future use, it is so hedged about with simple conjecture,
uncertainty and speculation, and so environed with matters problematic, as to be incapable of
making an intelligent impression upon the common judgment as to what that value would be.
There must be proof of value or evidence of such facts as will warrant a deduction of the
value with reasonable certainty. Neither courts nor juries are permitted to assess values on
conjecture.
23 Nev. 154, 175 (1896) Watt v. Nev. Cent. R.R. Co.
values on conjecture. Value must be ascertained by a money standard and based on evidence,
not on conjecture. (Traloff v. New York Central, 10 Blachf. 16; Sedg., 172.) Compensation
cannot be based on mere conjectural probability of future loss. (Chicago Ry. Co. v. Henry,
142 Sedg. 244.) Prospective damages are allowed only on proof that they are reasonably
certain to occur. (Clarke v. The Nevada L. & M. Co., 6 Nev. 203.)
Where a plaintiff claims compensation for consequences of an injury which he has not yet
experienced, he must prove with reasonable certainty that such consequences are to happen.
(DeCosta v. Mass. M. Co., 17 Cal. 613; Fry v. Dubuque Ry. Co., 45 Iowa, 416; Lincoln v.
Saratoga R. R. Co., 23 Wend. 425; 6 Nev. supra.)
It is evident that the plaintiff in this case has sustained no damages, as yet, by reason of the
destruction of his hay, beyond the value of the hay in the market. To allow him other damages
would be giving him compensation for conjectural consequences, which is not allowable.
(Sedg., 888, 937.) It would be compensation for conjectural consequences based on
conjectural value. As the hay had no value for present use, and no ascertainable value for
future use, as feed for plaintiff's stock, its value was no more and no less than if it had been
the property of A., raised and stored at the same place, A. having no stock.
That the market at Austin must be looked to for a solution of the question of the value of
the hay, we understand, the counsel are agreed. At Austin, 37 miles distant by rail, there was a
market for baled hay. The plaintiff's counsel, however, claims that the cost of transportation
of the hay from Austin to the plaintiff's ranch, and other expenses such as unbaling and
stacking it, should be added to the Austin market price in assessing the damages, while the
defendant's counsel maintains that the cost of baling to put it into marketable shape, and the
cost of transportation from the ranch to Austin, must be deducted from the market value at
Austin. The contention of plaintiff's counsel is based on the theory that the plaintiff did not
want to sell the hay, but wanted to keep it for his own use, but it appears that he did not want
to purchase hay either to keep for his own use in the place of the hay destroyed, for he
made no effort to do so, evidently for the reason that the cost would have greatly
exceeded the value of the hay.
23 Nev. 154, 176 (1896) Watt v. Nev. Cent. R.R. Co.
the place of the hay destroyed, for he made no effort to do so, evidently for the reason that the
cost would have greatly exceeded the value of the hay. If the plaintiff can recover the cost of
buying and replacing other hay on his ranch, it is evident that he would recover a sum greatly
in excess of his loss, and that the fire would be the source of great profit, instead of being the
cause of loss. It seems clear that the plaintiff has sustained no loss beyond the value of the
hay in the market as a commodity for sale. And that value was the market price, less the cost
of putting into market. A sense of common justice constrains us to hold that the evidence
insufficient to sustain the finding that the value of the hay destroyed was $10 per ton.
The plaintiff based his testimony of the value of the hay on the alleged facts, substantially,
that he had stored it for future use in the event of a hard winter; that it would cost at least $20
per ton to replace it with other hay; that it was worth $20 per ton to him; that he would not
have taken less for it; that it was not for sale, and that it was worth more than river hay such
as was sold in the Austin market. But it is quite immaterial what use he would have made of
the hay in the future. The measure of damages is the market value. (Berry v. Dwinel, 44 Me.
255; Washington Ice Co. v. Webster, 68 Me. 451; Stevens v. Springer, 23 Mo. App. 375;
Smith v. Griffin, 3 Hill, 333.) What the owner would take for his property cannot be shown
as proof of its value. (Sedg., 1294; Kiernan v. Chicago Ry. Co., 123 Ill. 188.)
The price at which property would sell under special and extraordinary circumstances is
not to be considered, but its fair cash market value if sold in the market under ordinary
circumstances, and assuming that the owner is willing to sell and the purchaser is willing to
buy. (Brown v. Calumet R. R. Co., 125 Ill. 606.) In an action against a railroad company to
recover damages for hay destroyed by fire set by defendant's locomotive, the measure of
damages is the market value of the hay where burned. In case there is no local market, the
value is properly fixed by the value at the nearest market, deducting the cost of
transportation. (Lafayette v. Eddy et al., Trustees Mo. Kan. & Tex. Ry. Co., 49 Fed. Rep.
807.)
23 Nev. 154, 177 (1896) Watt v. Nev. Cent. R.R. Co.
As there is testimony tending to show that the hay destroyed was of better quality than the
river hay sold in the Austin market, this evidence should be considered, in connection with
the Austin market for river hay, in arriving at the value of the plaintiff's hay. This hay was a
marketable commodity, and therefore its market value at the time it was destroyed is the
measure of damages. If there was no market for it where it stood, there was one at Austin,
which was within reach, and to which hay had sometimes been shipped from this section. In
the absence of a showing that it had any greater market value where it was situated, its value
in the Austin market, less the cost of transportation, must control.
The Hay Press: The value of the hay press was fixed by the finding at $200, the sum
alleged in the complaint. We do not think this finding is supported by the evidence. We find
no evidence in the record tending to show any greater value of the press than its cost at
plaintiff's ranch.
The judgment and order appealed from are reversed and new trial granted.
ON PETITION FOR REHEARING.
By the Court, Bonnifield. J.:
The plaintiff has petitioned for rehearing on the ground that it is probable that the court in
its decision has arrived at an erroneous conclusion and overlooked important questions which
were necessary to be considered in order to arrive at a full and proper understanding of the
case; and on the ground that petitioner verily believes that the court upon such rehearing will
come to different conclusions from those announced in its former decision.
Counsel argues at great length that the court erred in its conclusions on all points wherein
the decision was adverse to plaintiff's contention. The matter of the quantity of hay destroyed
we will not further consider, but briefly notice counsel's contention as to measure of the value
of the hay.
The case is reported in 44 Pac. Rep. 423, in which, after thorough and deliberate
consideration, we held that: In the absence of a showing that it had any greater market value
where it was situated, its value in the Austin market, less the cost of transportation, must
control."
23 Nev. 154, 178 (1896) Watt v. Nev. Cent. R.R. Co.
value where it was situated, its value in the Austin market, less the cost of transportation,
must control.
The plaintiff tried the case in the court below upon the theory, and his counsel contended
there and on appeal, and now contends in his petition, that, as the plaintiff had harvested and
stored the hay for use in the event of the occurrence of a hard winter like that of 1889-90, in
which he lost $100,000 worth of stock, and could have saved $50,000 worth with the amount
of hay defendant destroyed, the true measure of the value of the hay is such a sum of money
as it would require to place on plaintiff's ranch the same quantity and quality of hay as that
destroyed. He claimed on appeal from the evidence that no hay of the same quality as that
destroyed could be procured at any place nearer than Carson valley. There is no evidence in
the record of what the cost would have been to have bought and shipped hay from that place
to replace the hay destroyed. He argued that, taking Austin as the supply point, there must be
added to the Austin market price the cost of transportation from Austin to plaintiff's ranch,
and the difference between the value of the plaintiff's red-top hay and the common river hay
sold at Austin, and thus he figures the value of the hay destroyed at $32 50 per ton.
While we may admit that the sum of $32 50 per ton is a correct result of his theory, there is
not ingenuity of argument, however learnedly and lengthily it may be presented, that can
cover up from the ordinary mind the fallacy of the theory as applied to the facts and
circumstances of this case. The fact that the plaintiff only claimed $15 per ton in his
complaint or was allowed only $10, or now claims only the latter sum, does not relieve his
theory of its fallaciousness as a guide in arriving at the value of $10, or any other sum, per
ton.
If the value of the destroyed hay is to be based on what the value of like quantity and
quality would be for use in the contingency of such a winter as plaintiff claims, then $50,000
would not be an unreasonable valuation for it.
He testified and his counsel argues that he could have saved $50,000 worth of stock in the
hard winter named with the amount of hay the defendant destroyed. If that be so it is as
probable that such amount and quality of hay would be worth that sum in the event of
such another winter as that such winter will again occur.
23 Nev. 154, 179 (1896) Watt v. Nev. Cent. R.R. Co.
it is as probable that such amount and quality of hay would be worth that sum in the event of
such another winter as that such winter will again occur. But as neither history nor tradition
furnishes any evidence of the occurrence in the past of such another winter as that of 1889-90
within the borders of this state outside of the Sierra Nevada mountains, we are of opinion that
such contingent value is not the criterion by which it is to be determined what the plaintiff's
hay was worth in 1893.
Counsel informs us that for the purpose of providing against future deep snows the stock
farmers commenced in 1889-90, and continued every year since, to store up all the hay they
could for such purpose. But we are not so informed by the record, or otherwise, except as to
the plaintiff. If the theory or contention be true that red-top hay is worth $32 50 per ton for the
purpose of storing for use in the event of the coming of a winter like that of 1889-90, and the
farmers find it out, there ought to be great revival in the hay business. That the value of the
hay destroyed was not $50,000 in the aggregate, or even $32 50 per ton, we think counsel will
not deny; if not, he must admit that any theory of which either sum is the logical result as to
the value must be erroneous, and should be discarded in this case.
Petitioner asks the court, in the event of its adhering to its conclusions heretofore arrived
at, to terminate this litigation by ordering such judgment as it deems proper with the usual
alternative that the plaintiff accept it or suffer a new trial. In view of the necessary costs and
expenses to which the parties would be subjected by a new trial, we are inclined to grant the
request.
Mr. Van Patton, defendant's witness and engaged in the livery business at Austin, testified
that the market value of hay in bale in Austin was $12 per ton in the fall of 1893. Other
witnesses gave the value at $10 to $12. Exhibit 6 in evidence, being a schedule of railroad
freight rates, gives the rate of $3 per ton for hay from Canyon and Vaughn's and points
between to Austin. Walter's, or plaintiff's ranch, is between Canyon and Vaughn's. There is
no siding at Walter's, hence hay at plaintiff's ranch would have to be hauled by wagon to
Canyon or Vaughn's, where there are sidings, for shipment by rail to Austin.
23 Nev. 154, 180 (1896) Watt v. Nev. Cent. R.R. Co.
sidings, for shipment by rail to Austin. Canyon is the nearest station and distant three or four
miles from plaintiff's ranch, or Walter's station.
We find no evidence as to the cost of hauling hay from Walter's to either siding, but
plaintiff's counsel in his brief put it at $1 per ton from the siding to the ranch. So we will
consider $1 per ton reasonable cost for hauling from the ranch to the siding where it could
have been loaded on the cars. It is in evidence that the rate for hauling general merchandise
from the Austin depot into town is $2 50 per ton, and that the cost of baling hay was about $2
per ton. Taking the above items of cost as approximately correct for putting hay into the
Austin market from plaintiff's ranch the total cost would be $8 50 per ton. As there is
evidence tending to show that the plaintiff's hay was worth more than the common river hay
sold in Austin, we are of opinion that it is reasonable to conclude that his hay was worth the
highest market price, $12 per ton.
We are of the opinion that the evidence would sustain a finding for a net market value of
$3 50 per ton, and no more. The evidence is that the hay press cost $80 in Caleco, Lake
valley, and the value of the labor in hauling it to his ranch the plaintiff puts at $25 or $30. We
are of opinion that the evidence would support a finding of $110 as the value of the press, and
no more. The $100 damages assessed for injury to the meadow land we think the evidence
justifies.
We are of opinion that the plaintiff is entitled, under the evidence and the law applicable to
the case, to a judgment for the value of 697.6 tons of hay, at $3 50 a ton; for the value of the
hay press, $110, and for damages to the meadow land $100, amounting to $2,651 60, with
legal interest from date of original judgment, besides the cost of suit, taxed at $1,289 70 in
court below.
The judgment of this court herein is modified so as to read as follows:
It is therefore ordered that the plaintiff have twenty days from the filing hereof to file in
this court a release of all damages claimed in this action, except the sum of $2,651 60, with
legal interest thereon from April 10, 1895, till paid, and that upon filing such release in due
form within said twenty days, the judgment of the trial court be affirmed in said sum of
$2,651 60, with interest as aforesaid, and costs of the court below in the sum of $1,2S9
70; but in default of filing such release that the judgment of the district court and the
order denying a new trial be reversed and a new trial granted.
23 Nev. 154, 181 (1896) Watt v. Nev. Cent. R.R. Co.
that upon filing such release in due form within said twenty days, the judgment of the trial
court be affirmed in said sum of $2,651 60, with interest as aforesaid, and costs of the court
below in the sum of $1,289 70; but in default of filing such release that the judgment of the
district court and the order denying a new trial be reversed and a new trial granted. And it is
further ordered that appellant recover its costs on appeal.
Ordered, that the remittitur be stayed fifteen days to give appellant time to petition for
rehearing if it desires to do so.
ON PETITION FOR REHEARING.
By the Court, Bonnifield, J.:
The appellant has petitioned for a rehearing in so far as the judgment of the court below
was affirmed in the sum of $2,651 60 (45 Pac. Rep.), claiming that said sum is too much by
$896 25.
Counsel say: The court below made its findings on the question of costs of transportation
from Watt's ranch to Austin, exclusive of the cost of baling as follows: The cost of
transportation from Watt's ranch to Austin was not less than $8 dollars per ton, and the cost of
transportation from Austin to Watt's ranch was not less than $8 per ton, and the market value
of baled hay at Austin at about the time of the burning of plaintiff's hay was $10 to $12 per
ton.'
Counsel further say: This finding has not been questioned as to its correctness, either by
plaintiff or defendant. It has not been assigned as error, nor has this finding been specified by
counsel for defendant as unsupported by the evidence. It has not been assailed in any way by
either side and is therefore binding, under the authorities, and upon sound reason, upon this
court for all purposes of the case. Whether it be invoked for the purpose of reversing the
judgment, or relied upon in case a modification of the judgment shall be determined upon by
this court, it is absolutely binding on the court and litigant, because it has not been pointed
out as not supported by the evidence, nor assailed as a finding of fact in any way.
23 Nev. 154, 182 (1896) Watt v. Nev. Cent. R.R. Co.
We, however, find among the errors as assigned by appellant's counsel in the statement on
motion for new trial, the following alleged error: That each and every part of each and every
finding of fact by the court is wholly unsupported by the evidence and against the evidence.
We also find that the appellant's notice of motion for new trial designates, as one of the
grounds, the insufficiency of the evidence to justify the decision of the court.
Our statute (1893, p. 89) with reference to motions for new trials, among other things,
provides: When the notice designates, as the ground upon which the motion will be made,
the insufficiency of the evidence to justify the verdict or other decision, it shall be 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 altogether, 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.
Under the above facts and the statute, this court is not bound by the finding of the lower
court with reference to the cost of transportation of the hay unless it finds that the evidence
supports such finding. The force of this finding is no greater than any other finding of fact in
the case, but is exactly the same.
The petition for rehearing is denied.
____________
23 Nev. 183, 183 (1896) Comm'rs Washoe County v. Griswold
[No. 1456.]
BOARD OF COUNTY COMMISSIONERS OF WASHOE COUNTY, Acting for the Use
and Benefit of the Inhabitants of the Town of Reno, Appellant, v. A. W. GRISWOLD,
Respondent.
TownsIncorporated and UnincorporatedLicense Tax.The act entitled An act providing for the
government of the cities and towns in this state (Stats. 1881, p. 68) and the act amendatory thereof (Stats.
1889, p. 43) apply only to unincorporated towns, and the fact that the proviso introduced by the
amendment is in terms confined to that class of towns, does not make any part of the act applicable to any
other class of towns.
Appeal from the District Court of the State of Nevada, Washoe county; A.E. Cheney,
District Judge:
Action by the Board of Commissioners of Washoe county, for the use and benefit of the
inhabitants of the town of Reno, against A. W. Griswold, to recover a license tax on his
business of expressman. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
The facts sufficiently appear in the opinion.
F. H. Norcross, District Attorney, for Appellant:
I. There can be no question that, after the act of March 5, 1887 (Stats. 1887, p. 117), the
board of county commissioners of Washoe county had the power and authority to levy a
license tax upon defendant's business in the town of Reno. Had not the ninth subdivision of
section 1 of the act of February 26, 1881 (Stats. 1881, p. 68), been amended as it was by the
act of February 25, 1889 (Stats. 1889, p. 45), there would still be no question of the right of
the board of county commissioners of Washoe county to make or enforce a license tax upon
defendant's occupation in the town of Reno.
II. The section was amended by inserting in the ninth subdivision the following:
Provided, that in all unincorporated cities and towns in this state the board of county
commissioners shall have power to fix and collect a tax upon the following places of business
and amusements, as follows, to wit: circus, caravan, etc., respondent's occupation not being
included in the amendment.
III. Towns and cities in this state are either incorporated or unincorporated, and a
disincorporated town or city is not different from an unincorporated town or city so far as
its status under the laws of this state is concerned.
23 Nev. 183, 184 (1896) Comm'rs Washoe County v. Griswold
or unincorporated, and a disincorporated town or city is not different from an unincorporated
town or city so far as its status under the laws of this state is concerned. (Sections 1 and 8, art.
VIII, of State Constitution; City of Virginia v. Chollar-Potosi M. Co., 2 Nev. 86; State v.
Rosenstock, 11 Nev. 128.)
IV. The ninth subdivision of section 1, as well as the entire act of February 26, 1881,
applied to unincorporated towns only. It could never have been the intention of the legislature
that the provisions of the ninth subdivision of section 1 of the act in question should apply to
other than unincorporated towns and cities, for all incorporated towns and cities had a similar
provision in their special acts of incorporation. This view of the case is supported by the
provisions of sections 1 and 8 of article VIII of the constitution; the circumstances
surrounding the passage of the act (it being concurrent with the passage of the acts repealing
the acts incorporating Virginia, Gold Hill and Austin); the subsequent acts of the legislature
of 1887 (Stats. 1887, p. 51, 117); the provisions of all the special acts of incorporation; also,
the rule of statutory construction that, when the language admits of two constructions, one of
which would render it constitutional and valid, and the other unconstitutional and void, that
construction should be adopted which will save it. (V. & T. R. R. Co. v. Henry, 8 Nev. 165.)
V. The ninth subdivision of section 1 of the general act of February 26, 1881, together
with the proviso contained in the amendatory act of February 25, 1889 (Stats. 1889, p. 45),
being re-enacted or passed at the same time, no portion has precedence over any other in
point of time, and one portion, because of its later enactment, cannot be said to repeal the
other. But it is claimed that the provision inserted in the ninth subdivision prohibits the
boards of county commissioners from levying or collecting a license tax in unincorporated
towns and cities upon any place of business and amusement other than those enumerated in
the proviso inserted by the amendment. If this is true, then the other portion of the ninth
subdivision, if it has any force at all, must refer to incorporated towns and cities, which, prior
to the amendment, referred to unincorporated towns. This view must be taken, or else the
legislature intended the former portion of the ninth subdivision to apply to
disincorporated cities.
23 Nev. 183, 185 (1896) Comm'rs Washoe County v. Griswold
view must be taken, or else the legislature intended the former portion of the ninth
subdivision to apply to disincorporated cities. But either way it would amount to special
legislation in an act that must be general,
VI. A careful consideration of the entire act, the circumstances of its passage, its evident
object, and the effect which a literal translation of the word unincorporated will have upon
the operation of that part of the act relating to the fixing and collecting of licenses, will force
the conclusion that the legislature fell into a very common error of using the word
unincorporated or incorporated out of the proper meaning.
VII. It is very probable that the legislature did not intend the word unincorporated, in
the act of February 25, 1889, to be used in its strict and proper sense; that it intended the
proviso inserted in the ninth subdivision of section 1, referring to unincorporated towns and
cities, to refer to those towns that were not governed either by special acts or had not availed
themselves of the provisions of the general act. If this view is correct, then the proviso in
question does not apply to the town of Reno.
Goodwin & Dodge and Thomas E. Haydon, for Respondent:
I. The powers of the board of commissioners of a county were expressly limited by the
proviso in the ninth clause of section 1 of an act to amend an act entitled An act providing
for the government of the towns and cities of this state, approved February 26, 1881,
approved February 25, 1889, which proviso is found on page 45 of acts of 1889.
II. Defendant's job or express wagon does not come within the class of occupations that
can be required to pay a license under the proviso, so the complaint against him does not state
and cannot be made to state any cause of action.
By the Court, Belknap, J.:
Plaintiff sued defendant to recover the amount of a license tax upon his business of
draying or expressing in the town of Reno, imposed by an ordinance alleged to have been
made under the provisions of an act entitled An act providing for the government of cities
and towns in this state (Stats. 1881, p.
23 Nev. 183, 186 (1896) Comm'rs Washoe County v. Griswold
p. 68), and the act amendatory thereof (Stats. 1889, p. 43). Defendant, answering, set up
several defenses.
Thereafter the cause was certified by the justice's court, in which it originated, to the
district court, upon the ground that a question touching the legality of a tax was involved.
Upon the trial the district court found as a conclusion of law that the board of commissioners
had no authority to enact the ordinance, and rendered its judgment dismissing the action.
Plaintiff appeals.
If the conclusion found by the district court is correct, the judgment must be affirmed
irrespective of other defenses which have been interposed.
The powers of the county commissioners as defined in the ninth subdivision of section 1
of the above-mentioned act are as follows (the amendment of 1889 being included in
brackets):
NinthTo fix and collect a license tax upon and regulate all places of business and
amusement so licensed, as follows, to wit: Artisans, artists, assayers, auctioneers, bakers,
bankers, barbers, billiard tables, boiler makers, boot and shoe makers, bowling alleys,
brokers, factors and general agents, commission merchants, circus, caravan or menagerie,
concerts and other exhibitions, dance houses, saloons or cellars, express and freight
companies, foundries, gaming, hawkers and peddlers, hay yards, wagon yards and corrals,
hotels, boarding houses and lodging houses, illuminating gas, electric light, insurance agents,
job wagons, carts and drays, laundries, livery and sale stables, lumber yards, manufacturing of
liquors and other beverages, manufacturers of soap, soda, borax or glue, markets, merchants
and traders, newspaper publishers, pawnbrokers, restaurants and refreshment saloons,
bar-rooms, shooting galleries, skating rinks, solicitors, drummers, mercantile agents, stage
and omnibuses, stock brokers, telegraph companies, theaters and melodeons, undertakers,
wood and coal dealers, having due regard to the amount of business done by each firm or
person so licensed; to license, tax and regulate, prohibit and suppress all tippling houses,
dram shops, public card tables, raffles, hawkers, peddlers and pawnbrokers, gambling houses,
disorderly houses and houses of ill-fame; [provided, that in all unincorporated cities and
towns in this state the boards of county commissioners shall have power to fix and collect
a tax upon the following places of business and amusements, and none other, as follows,
to wit: circus, caravan or menagerie, concerts, theatrical performances, melodeons and
other exhibitions, dance houses, wholesale liquor merchants, brewers, manufacturers of
liquors and beer, saloons, bars, bar-rooms or cellars, gaming and gambling houses,
hawkers and peddlers, junk shops, pawnbrokers, auctioneers, solicitors, drummers and
mercantile agents]; to levy and collect an annual tax on all dogs owned or kept within the
limits of said town or city, and to provide for the extermination of all dogs for which tax
shall not have been paid, and to prohibit the keeping of hogs or the running at large of
goats, cows or other animals within the limits of said town or city; to fix and collect a
license tax upon all professions, trades or business within said town or city not heretofore
specified."
23 Nev. 183, 187 (1896) Comm'rs Washoe County v. Griswold
cities and towns in this state the boards of county commissioners shall have power to fix and
collect a tax upon the following places of business and amusements, and none other, as
follows, to wit: circus, caravan or menagerie, concerts, theatrical performances, melodeons
and other exhibitions, dance houses, wholesale liquor merchants, brewers, manufacturers of
liquors and beer, saloons, bars, bar-rooms or cellars, gaming and gambling houses, hawkers
and peddlers, junk shops, pawnbrokers, auctioneers, solicitors, drummers and mercantile
agents]; to levy and collect an annual tax on all dogs owned or kept within the limits of said
town or city, and to provide for the extermination of all dogs for which tax shall not have
been paid, and to prohibit the keeping of hogs or the running at large of goats, cows or other
animals within the limits of said town or city; to fix and collect a license tax upon all
professions, trades or business within said town or city not heretofore specified.
There have been two general systems for the government of towns 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.
At the session of 1879 the legislature provided a system of town government entitling the
act An act for the government of unincorporated towns in the state. Without stating its
details it is sufficient to say that it did not materially differ from the system that had been
established by the legislature in regularly chartered municipalities, except that the law did not
provide for the incorporation of the towns, and the officers were not selected by their own
citizens independently of the officials of the county.
This was followed by the act of 1881. (Stats. 1881, p. 68.) In it the same general plan was
adopted as in the act of 1879. No incorporation was provided for and it extended its
provisions to the towns that had been disincorporated.
This legislation shows that by the term unincorporated towns in the amendment was
meant such towns as had not been specially incorporated by separate charter.
23 Nev. 183, 188 (1896) Comm'rs Washoe County v. Griswold
been specially incorporated by separate charter. The entire act is intended to apply only to
unincorporated towns, and the fact that the proviso introduced by the amendment is in terms
confined to that class of towns does not make any part of the act applicable to any other class
of towns.
The proviso being the only change in the section as it originally stood, it is clear that this
was the sole purpose of the amendment, and that by it the legislature intended to restrict the
previously unlimited powers of the commissioners in the collection of licenses, to the kinds
of business enumerated in the clause added to the section.
As the defendant's business of draying or expressing is not enumerated in this clause, the
commissioners had no authority to impose a license tax thereon, and the judgment of the
district court must be, and hereby is, affirmed.
____________
23 Nev. 188, 188 (1896) Dennis v. Caughlin
[No. 1460.]
JOHN H. DENNIS, Appellant, v. W. H. CAUGHLIN,
Respondent.
ElectionsCanvass of BallotsBallots Tampered WithConflicting Evidence.In an election contest, the
finding of the trial court that the ballots in question have been tampered with after a canvass and return by
the election officers, will not be disturbed where the evidence is conflicting.
IdemBallots as EvidenceException to Rule.The rule that, as between the ballots and a canvass of them,
the ballots control, has no application where the ballots have been tampered with after they had been
deposited in the box.
Appeal from the District Court of the State of Nevada, Washoe county; George F. Talbot,
District Judge:
Action by John H. Dennis against W. H. Caughlin, to contest the latter's election to the
office of Sheriff of Washoe county. From a judgment in favor of defendant, plaintiff appeals.
Affirmed.
(Second appeal. For former opinion, see 22 Nev. 447.)
The facts sufficiently appear in the opinion.
Thos. E. Haydon, for Appellant:
I. The well-established rule is that, where the ballots have been preserved in accordance
with law, the ballots themselves are the best evidence of the number of votes cast and for
whom cast.
23 Nev. 188, 189 (1896) Dennis v. Caughlin
themselves are the best evidence of the number of votes cast and for whom cast. (McCrary on
Elections, sec. 439, 3d ed., secs. 443, 445; Cooley on Constitutional Limitation, 6th ed., p.
788: Wheat v. Ragsdale, 27 Ind. 191; People v. Holden, 28 Cal. 123; Searle v. Clark, 34 Kan.
49; Ex parte Brown, 97 Cal. 89.)
II. The object of the law in preserving the ballots is to afford the means of impeaching the
returns of the election officers. (Ex parte Brown, 97 Cal. 89.) A ballot is to be construed as
any other writing. A ballot is the only expression of a voter's will, and it must be construed
according to its legal effect. (Rutledge v. Crawford, 91 Cal. 531.) In any election contest the
ballots are competent and material evidence of a very high order. (Gibson v. Board of
Supervisors, 80 Cal. 361.)
III. In an action to try the right to an office the list of ballots cast in any precinct, returned
with the poll list and tally paper, is better evidence of the number of votes cast at the precinct
and for whom cast than the tally list made from them by the officers of the election. (People
ex rel. Budd v. William Holden, 28 Cal. 132.)
IV. The presumption is that the clerk kept the ballots safely without change or mutilation.
If they were mutilated or changed, the burden of proof was on defendant to make proof of that
fact. (People v. Holden, 28 Cal. 133; Hartman v. Young, 11 Am. St. Rep. 797-798, and notes;
Coglan v. Beard, 65 Cal. 58; Ex parte Brown, 77 Cal. 90.)
Torreyson & Summerfield, for Respondent:
I. The trial court did not err in ruling and deciding, under all of the evidence, direct,
circumstantial and otherwise, in the proceeding, that the ballots of Glendale precinct should
be discredited and that the certificate of the election board of the precinct constituted the best
and the controlling evidence of the number of votes cast for the different candidates for
sheriff in that precinct.
II. It seems to be the theory of appellant that it devolves upon respondent to prove that the
ballots have been tampered with in order to be permitted to rely upon the certificate of the
election board as the controlling evidence to the exclusion of the ballots.
23 Nev. 188, 190 (1896) Dennis v. Caughlin
the exclusion of the ballots. In this, the learned counsel is mistaken. The law recognizes the
fact that, in the very nature of things, it would generally be impossible to prove by direct or
positive evidence that ballots have been altered. Such work is always done secretly.
Therefore, the law has adopted the rule of presuming in the first instance that the election
officers have honestly performed their duties in certifying to the returns and it accepts such
returns prima facie as being correct. In order to lay the proper foundation for the admission of
the ballots as evidence superior to the election returns, or certificate of the election board, the
law requires that it be proved not only that the ballots have been continuously in the custody
of the proper officer, but also that they have not been so exposed as to afford an opportunity
for them to be tampered with by any one.
III. The danger that the ballots may be tampered with, after the count is made known,
especially if the vote is very close, is so great that no opportunity for such tampering can be
permitted. Such ballots, in order to be received in evidence, must have remained in the
custody of the proper officers of the law, from the time of the original official count until they
are produced before the proper court or officer, and if it appears that they have been handled
by unauthorized persons, or that they have been left in an exposed and improper place, they
cannot be offered to overcome the official count. (McCrary on Elections, 3d ed., 436; 6 Am.
and Eng. Ency. of Law, 425; People v. Livingston, 79 N. Y. 279; People v. Burden, 45 Cal.
241; Coglan v. Beard, 65 Cal. 58; Cooley's Const. Limitations, 625.) The governing rule was
well stated by Justice Brewer, now of the supreme court of the United States, while he was
upon the supreme bench of Kansas: (1) As to ballots cast at an election and a canvass of these
ballots by the election officers, the former are the primary and controlling evidence. (2) In
order to continue the ballots controlling as evidence, it must appear that they have been
preserved in the manner and by the officers prescribed by the statute, and that, while in such
custody, they have not been so exposed to the reach of unauthorized persons as to afford a
reasonable probability of their having been changed or tampered with.
23 Nev. 188, 191 (1896) Dennis v. Caughlin
having been changed or tampered with. (Hudson v. Solomon, 19 Kan. 177; Dorey v. Lynn, 31
Kan. 758; Kingery v. Berry, 94 Ill. 515.)
IV. Contestant's testimony certainly discloses an astounding negligence and insecurity in
the custody of the ballots, and upon such testimony alone the trial court would have been
amply justified in finding that abundant opportunity had been afforded for tampering with the
Glendale ballots, and that for such reason the certificate of the election board, made at the
time of their count, publicly, by the representatives of the various political parties, and in the
presence of the partisans of the different candidates, before it was known how close the
contest would be, constituted the best and the controlling evidence of the number of votes
cast in that precinct for the different candidates for the office of sheriff.
V. It is the function and province of the trial court or jury to determine, under all of the
evidence, whether the ballots or the certificate of the election board should be accepted as the
primary and controlling evidence, and the judgment thereof will not be disturbed by the
appellate court, if there is substantial evidence to support the judgment and decision. (Tebbe
v. Smith, 41 Pac. Rep. 455; McCrary on Elections, 3d ed., par. 437; People v. Livingstone, 79
N. Y. 279.)
By the Court, Belknap, J.:
This is the second appeal in this case (Dennis v. Caughlin, 22 Nev. 447). As stated in the
former opinion, the question is whether John Hayes or William H. Caughlin was elected
sheriff of Washoe county. The district court rendered judgment in favor of Caughlin. It was
admitted at the trial that Hayes had received 538 votes and Caughlin 527, exclusive of the
Glendale and Salt Marsh precinct returns, and 2 other ballots counted for defendant. The
errors assigned consist in these returns and the 2 ballots.
In our view it will be unnecessary to consider the rulings of the district court further than
the Glendale returns.
The count of the ballots of this precinct showed that Hayes received 35 votes, and
Caughlin 33. If these ballots be counted irrespective of other matters in the record Hayes
would be elected by 13 votes.
23 Nev. 188, 192 (1896) Dennis v. Caughlin
would be elected by 13 votes. On the other hand, the canvass by the election precinct officers
shows that Hayes received 24 votes and Caughlin 37 votes. This would elect Caughlin by 2
votes. The question then to be determined is whether the canvass by the election officers upon
the night of the election or the ballots themselves should have controlled the district court in
its decision.
It was shown at the trial that after the official canvass by the board of county
commissioners, and until the first trial, the ballots have been kept in a cupboard in the county
clerk's office. The cupboard had been selected by the clerk and his deputy as the most
secluded place for their keeping. They were enclosed in the envelope or package in which
they were originally received, and over this was sealed a slip or band of paper upon which the
name of the clerk was written. Old books and papers were placed over them for the purpose
of concealment. No one was supposed to have known where they were except the persons
mentioned, and apparently the package had not been disturbed when it was introduced in
evidence. The cupboard was unlocked, and persons connected with the office had keys to the
office door. On the other hand, evidence was adduced tending to show that there was some
feeling existing against the defendant at Glendale caused by his having been instrumental in
enforcing the law against fishing in that locality and arresting offenders against it. In counting
the votes by the board an unusual number of blank votes for the office of sheriff were noticed,
some witnesses placing the number from 10 to 12 and others at a less figure. During the
canvass, and when only a few ballots remained to be counted, a discrepancy of one vote was
noticed between the clerks in tallying the vote for sheriff. Thereupon the count for sheriff was
checked off from the commencement, and the mistake corrected. Upon this evidence the
court decided to accept the returns to the exclusion of the ballots.
The evidence being conflicting, we cannot disturb the ruling of the district court. In
support of the conclusion reached, it may be said that the checking off of the tally tended to
prove the correctness of the canvas and emphasized the fact of the large number of blank
votes for the office. It is significant that the ballots show but 3 blanks instead of the 10 or
12 to which witnesses had testified.
23 Nev. 188, 193 (1896) Dennis v. Caughlin
nificant that the ballots show but 3 blanks instead of the 10 or 12 to which witnesses had
testified. If this evidence was true, the inference is irresistible that the ballots had been
tampered with. In order to further satisfy ourselves in this court, we have compared the
ballots and the canvass upon nine other candidates, and our count substantially agrees with
the canvass. This fact lends additional support to the ruling of the district court.
In People v. Holden, 28 Cal. 123, the court said: Intrinsically considered, it must be
conceded by all that the ballots themselves are more reliable and therefore better evidence
than a mere summary made from them. Into the latter errors may find their way, but with the
former this cannot happen. The relation between the two is at least analogous to that of
primary and secondary evidence.
In Hudson v. Solomon, 19 Kan. 180, following the above case, the court said: As between
the ballots themselves, and a canvass of the ballots, the ballots are controlling. This, of
course, upon the supposition that we have before us the very ballots that were cast by the
voters.
Referring to this rule, Judge McCrary, in his treatise on Elections, says that it can have no
application to a case where the ballots have been tampered with after they were deposited in
the box. In such a case, the learned author says, the value of the ballots as evidence is
almost totally destroyed and the returns made by the officers of election presiding at the polls
may become better evidence than the ballots. (McCrary on Elections, sec. 439.)
It is unnecessary to consider the remaining errors assigned by appellant. Conceding they
should be decided in his favor, the result would not be changed.
Judgment affirmed.
____________
23 Nev. 194, 194 (1896) Streeter v. Johnson
[No. 1459.]
J. C. STREETER, Respondent, v. HIRAM JOHNSON, W. H. REMINGTON, W. H.
SWEENEY, and MINNIE D. FOLEY, Administratrix of the Estate of M. D. Foley,
Deceased, Appellants.
PracticeRecord on Appeal.Papers not properly in the record on appeal will be stricken out on motion. Stats.
1895, p. 58, permitting original papers to be certified upon appeal, have not changed the method of
presenting questions in the supreme court.
Chattel MortgageSufficiency of Description.A description in a chattel mortgage, that it covers all other
property of a personal nature belonging to said mortgagor which is situated in either Elko or Eureka
counties, is sufficient to cover all such property so situated then belonging to the mortgagor.
IdemAffidavit.An affidavit attached to a chattel mortgage, when made by some one in behalf of the parties,
need not state that fact.
TrespassSheriff and Judgment Creditors, When Jointly Liable for Wrongful Sale.Judgment creditors, who
attend an execution sale of property levied upon in that action by the sheriff, direct how the property shall
be sold, and buy in a portion of it themselves, thereby ratify the seizure by the sheriff, and, if it is wrongful,
they become jointly liable with him for the trespass.
EvidenceSufficiency ofWaiver.Admitting a mortgage in evidence without objection is a waiver of the
claim that its execution had not been sufficiently proven.
MortgageExecuted After Maturity of Note.Where it appears that a bona fide mortgage, although agreed
upon, was not executed until after the note it was given to secure fell due, but that such delay was not
fraudulent, and does not appear to have worked injury to any one, the mortgage does not, for that reason,
become invalid.
IdemPossession of Property Not TakenLien Good.The mortgagee of personal property does not, in the
absence of fraud, lose his lien thereon merely by failing to take possession of the property when the debt
falls due. (Syllabus by Bigelow, C. J.)
Appeal from the District Court of the State of Nevada, Eureka county; A. L. Fitzgerald,
District Judge:
Action by J. C. Streeter against Hiram Johnson and others. Judgment for plaintiff, and
defendants appeal. Affirmed.
The facts sufficiently appear in the opinion.
W. E. F. Deal and Thos. Wren, for Appellants:
I. Among the other safeguards provided in the chattel mortgage law of this state is a
requirement that the mortgage shall be recorded in each of the counties in which the property
is situated, otherwise the mortgage is declared invalid and void.
23 Nev. 194, 195 (1896) Streeter v. Johnson
invalid and void. How is the phrase all property of a personal nature in either of said
counties to be construed? Manifestly it means all personal property of the company in each
of the counties. The mortgage was not recorded in Elko county, where a part of the property
was situated, and, under the provisions of the statute, is invalid and void. (Gen. Stats., sec.
2635.)
II. The allegation in the complaint is that the property described in the complaint was
situated at the town of Sherwood when the mortgage was executed. This, it is clear from the
language of the mortgage, did not embrace the property in Elko county when the mortgage
was executed. It therefore appears upon the face of the complaint that the mortgage is invalid
and void.
III. The affidavit annexed in the mortgage is insufficient. It does not show authority upon
the part of G. F. Talbot to make it, or that it was made on behalf of the mortgagee. The
mortgage is therefore invalid and void. (Gen. Stats., sec. 2635.)
IV. The act passed at the last session of the legislature allows an appellant to have the
original papers in a case in lieu of a statement on appeal certified to this court on appeal. No
doubt, under the statute, papers may be sent up that will not be considered by the court, but
the court can readily determine what papers should be considered, and what should not be
considered, without passing upon a motion to strike out.
V. No mortgage was given until the note had been overdue twenty-one days, and nearly
three months after the making of the note. In the meantime the company was enjoying a false
credit through the non-execution of the mortgage, and was able to obtain a credit that they
would not otherwise have been able to secure. Under the circumstances I submit that both the
mortgagor and mortgagee committed a constructive fraud that vitiated the mortgage as to
creditors. (Anderson's Dictionary of Law, p. 475; People v. Kelley, 35 Barb. 457.)
VI. The plaintiff lost his lien as against creditors by laches. He failed to take possession of
the mortgaged property or to assert his right as mortgagee until long after the note fell due.
23 Nev. 194, 196 (1896) Streeter v. Johnson
note fell due. (Traverse v. McCormack, 1 Mont. 143; Burnham v. Muller, 61 Ill. 453; Argall
v. Seymour, 4 McCreary, U. S. C. C. 55.)
VII. It is clear that the trustees, whoever they were, never legally executed the note or
mortgage, and that, for want of authority in those who assumed to execute it, it is absolutely
null and void. (Hillyer v. Overman S. M. Co., 6 Nev. 51; Yellow Jacket Co. v. Stevenson, 5
Nev. 224.)
VIII. The description of all of the property, except the articles specifically described in the
so-called mortgage, is so indefinite and uncertain that the instrument is invalid and void as to
creditors. It reads as follows: Also all other property of a personal nature belonging to said
mortgagor situated in either of said counties. (Jones on Chattel Mortgages, sec. 55, 55a, and
authorities therein cited.)
E. S. Farrington, for Respondent:
I. In accordance with the motion filed herein, all of the papers and documents hereinafter
enumerated should be stricken from the records and files herein, on the ground that neither or
any of said papers or documents have been or are included in the statement on motion for a
new trial, or have been endorsed by the, or any, judge or clerk as having been read or referred
to on the hearing of the motion for new trial herein, or are designated by the, or any, judge in
his certificate, or otherwise, as having been read or referred to on the hearing of said motion.
II. The mortgage set out in the complaint was introduced in evidence without objection.
No motion for non-suit was made, nor was there any motion to strike out the mortgage or any
other testimony now of record. The defendants should have made their objections to the
mortgage at the time it was offered in evidence. The mortgage was offered as the mortgage of
the Star Mining and Smelting Company to the plaintiff, and it purports on its face to be such.
Permitting the mortgage to be introduced in evidence without making the objections that the
mortgage was executed without authority, that the mortgage had been altered in material
points after its execution, that the seal affixed to the mortgage was not the seal of the
corporation, and that no affidavits in behalf of the mortgagor or mortgagee were affixed to
the mortgage, is a waiver of such objections.
23 Nev. 194, 197 (1896) Streeter v. Johnson
davits in behalf of the mortgagor or mortgagee were affixed to the mortgage, is a waiver of
such objections. The seal was admitted to be the seal of the Star Mining and Smelting
Company by defendant's failure to object to the admission of the mortgage. The seal being
thus proven, the presumption is that it was affixed by competent authority. All proofs of the
execution were waived by admitting the mortgage without objection. (Sharon v. Minnock, 6
Nev. 380; Langworthy v. Coleman, 18 Nev. 441; Burnett v. Lyford, 93 Cal. 114; Penn. Nat.
Gas Co. v Cook, 16 Atl. 762; Hamilton v. McLaughlin, 12 N. E. 424; Sherwood v. Sissa, 5
Nev. 355.)
III. The objection that the affidavit annexed to the mortgage is insufficient because it does
not show authority upon the part of G. F. Talbot to make it, or that it was made on behalf of
the mortgagee, is wholly without merit, as it is alleged in the complaint, and not denied in the
answer, that there was annexed to said chattel mortgage the affidavit of G. F. Talbot, on
behalf of this plaintiff, * * * setting forth that at the time of making the affidavit said Talbot
was the agent of this plaintiff and that this plaintiff was absent from the state of Nevada. The
statute of 1887, p. 66, requires that there shall be annexed to the mortgage the affidavits of
the mortgageor [mortgagor] or some person in their behalf.
IV. The fact that a mortgage has been antedated does not affect its validity. (Johnson v.
Stellwagen, 34 N. W. 252.)
V. The description, all other property of a personal nature belonging to said mortgagor
which is situated in either of said counties, means all property of the mortgagor which is
situated in Eureka county, and all property so owned which is situated in Elko county. This
description is neither indefinite nor uncertain. This description, aided by inquires, which the
instrument itself suggests, would enable any third person to identify the property. (Buck v.
Davenport, 26 Am. St. R. 392; Barrett v. Fisch, 14 Am. St. R. 239-247; Jones on Chattel
Mortgages, sec. 54; Crisfield v. Neal, 13 Pac. 272; Bank v. Bryan, 34 S. W. 451.)
VI. It is true that at the time the money was loaned there was an understanding between
Lindsey and Potter on the one hand, and Mr.
23 Nev. 194, 198 (1896) Streeter v. Johnson
the one hand, and Mr. Streeter's agents on the other, that a mortgage should be given, and by
accepting and using the money, the corporation ratified the understanding. But it was
necessary thereafter to call a meeting of the directors to execute the mortgage. It is neither
alleged in the answer, or shown in the record, that there was any agreement or request that the
execution of the mortgage should be delayed, or that it was delayed, in order to give the
company a false credit. A creditor complaining of fraud must show that he has been
defrauded, and the burden of proving fraud is on him who alleges it.
VII. The plaintiff did not lose his lien by failing to take possession of the mortgaged
property when the notes became due. It is alleged in the complaint, and not denied in the
answer, that the debt has never been paid, and there can be no question but that the mortgage
was given in good faith. The possession of the mortgagor after the law day is neither
conclusive evidence of fraud, nor prima facie evidence of it, nor a circumstance to which the
law attaches the presumption of payment. (Jones on Chat. Mortgages, sec. 369, and cases
cited; Spraights v. Hawley, 39 N. Y. 441; Wescoat v. Crawford, 22 S. E. 792-801; Mitcham
v. Schuessler, 13 S. E. Rep. 617; Brown v. Campbell Co., 21 Am. St. R. 274; Peckinbaugh v.
Quillan, 12 N. W. 105; Pyeatt v. Powell, 51 Fed. 551; Williams v. Dobson, 1 S. E. 422.)
By the Court, Bigelow, C. J.:
Action of replevin for certain personal property described in the complaint, or for its value
in the sum of $3,000, in case delivery cannot be had, to the possession of which the plaintiff
claims to be entitled as mortgagee, under the following circumstances:
July 21, 1887, the Star Mining and Smelting Company, a Nevada corporation, having its
principal place of business in the town of Sherwood, Eureka county, Nevada, borrowed from
the plaintiff $3,000, for which it executed and delivered its promissory note, due 60 days after
date. It was at the same time agreed that the company should secure the payment of the note
by a mortgage upon its property. October 12, 1887, the mortgage in question was executed
and delivered pursuant to that agreement, but it was dated July 21, 1SS7, to correspond
with the date of the note.
23 Nev. 194, 199 (1896) Streeter v. Johnson
ered pursuant to that agreement, but it was dated July 21, 1887, to correspond with the date of
the note. It was filed for record with the county recorder of Eureka county on October 13,
1887.
Some time in December, 1887, the defendant Sweeney, as sheriff, and the other defendants
as creditors of the Star Mining Company, attached and took possession of a portion of the
property described in the complaint, and it was subsequently sold under an execution issued
upon a judgment obtained in that action.
In this action judgment was given for the plaintiff for a portion of the property, and
defendant's appeal from the judgment, and from an order overruling a motion for new trial.
There are a number of papers, including the findings, contained in the record which has
finally reached this court, which the respondent moves to strike out as not properly included
in the record of appeal. They are not contained in the statement on motion for new trial, nor
are they certified as having been used or referred to on the hearing of the motion, and most of
them are entirely immaterial.
It has been decided so many times that the findings are not before the court, unless
included in the statement for new trial, that there can now be no question upon the point,
unless, as contended by appellant, the rule has been changed by Stats. 1895, 58, in the act
regulating appeals. But in regard to that act, it seems only necessary to call attention to the
language used in Holmes v. Iowa Mining Co., 23 Nev. 24. We then said: It is not improper
to call attention to the fact that the statute mentioned has in no wise altered the method of
presenting questions to the supreme court. Wherever a motion for new trial or statement on
appeal was previously necessary to their proper presentation, it is still necessary. The only
difference is that, instead of having to present a transcript of the papers to be used on appeal,
the originals may now be certified up.
The motion to strike out will therefore be granted.
1. A copy of the mortgage is attached to and made part of the complaint, and appellants'
counsel contends that it is insufficient in several particulars, and that, therefore, the complaint
does not state facts sufficient to entitle the plaintiff to a judgment for the possession of
the property.
23 Nev. 194, 200 (1896) Streeter v. Johnson
complaint does not state facts sufficient to entitle the plaintiff to a judgment for the
possession of the property. The first objection is that the property is insufficiently described.
Upon that point the mortgage reads as follows: That said mortgagor mortgages to the said
mortgagee all that certain personal property situated and described as follows, to wit: two
work mules, one gig, one two-horse wagon, etc. (Here follows an enumeration of a large
number of articles, after which the description concludes as follows:) All of said property is
at the town of Sherwood, or Union, in Union mining district, in either Elko county or Eureka
county, in the state of Nevada, and on or near the boundary line between said counties. Also
all other property of a personal nature belonging to said mortgagor which is situated in either
of said counties. It appears that some of the property for which the plaintiff recovered
judgment was not specifically described in the mortgage, and was only covered by the general
clause of all other property of a personal nature belonging to said mortgagor which is
situated in either of said counties. We think, however, that this was sufficient. It would often
be impossible to so describe personal property that a mere inspection of a mortgage would
indicate, to one unacquainted with the circumstances surrounding the parties, what was
covered by it, and, bowing to the necessity of the case, the rule has been established that it is
unnecessary to do so. The fact that the description was general, instead of specific, is no valid
objection of itself. (Veazie v. Somerby, 5 Allen, 280; Thurber v. Minturn, 62 How. Pr. 27.) If
a description is such as to enable third parties who have examined the records, and made such
inquiries as the instrument itself suggests, to identify the property covered thereby, it is
sufficient. (1 Cobby, Chat. Mort., sec. 161.) Tested by these rules, this mortgage is not
invalid. It covered all property of a personal nature then belonging to the company, in either
of those counties. This suggested the proper inquiry. The ascertainment of the facts
concerning the company's ownership of any particular article at once determined whether it
was covered by the mortgage. This was sufficient.
2. The mortgage was not invalid because not recorded in Elko county.
23 Nev. 194, 201 (1896) Streeter v. Johnson
Elko county. If not recorded there, it would not affect property there situated, but this would
be no reason why it should also be invalid in Eureka county, where it was recorded.
3. The statute does not require that the affidavit attached to the mortgage, when made by
some one in behalf of the parties, shall state that fact. The complaint alleges, and the answer
does not deny, that the affidavit of G. F. Talbot was made in behalf of the mortgagee. That is
all that the law requires. Other objections are suggested to the complaint, but we are of the
opinion that they are not well taken, and it is unnecessary to notice them further.
4. There was no misjoinder of parties defendant, and the judgment against all of the
defendants was proper. Johnson, Remington and Foley were attaching creditors of the Star
Mining Company, and if they did not authorize the seizure of the property in the first
instance, it is perfectly clear that they subsequently ratified it. Their agent in the management
of the suit attended the execution sale, directed how the property should be sold, and bought
in a portion of it for those defendants. This made them jointly liable with the sheriff for the
trespass. (Freeman, Ex., 2d ed., sec. 273; Elder v. Frevert, 18 Nev. 446.)
5. There was no objection to the introduction of the mortgage in evidence. This
constituted a waiver of the claim that its execution by the company had not been sufficiently
proven. (Sharon v. Minnock, 6 Nev. 380; Langworthy v. Coleman, 18 Nev. 441.)
6. Nor do we think that the fact that the mortgage, although agreed upon when the note
was given and the money borrowed, was not executed until after the note fell due, renders it
invalid as to these defendants. It is not shown that the company's indebtedness to the
defendants was incurred between those dates, and, for aught that appears, it may have wholly
accrued prior to July 21, or subsequent to October 13, 1887. It is clear that the debt secured
by the mortgage was an honest one, and it is neither alleged nor proven that the delay was the
result of any agreement or arrangement to keep it from the knowledge of the public, and
thereby give the company a credit it would not otherwise have had, nor that it had this effect.
Although bearing an earlier date, and although previously agreed upon, it was not a valid
mortgage until acknowledged and sworn to and delivered, which the official certificates
and other evidence show was not done until October 12, the day before it was recorded.
23 Nev. 194, 202 (1896) Streeter v. Johnson
earlier date, and although previously agreed upon, it was not a valid mortgage until
acknowledged and sworn to and delivered, which the official certificates and other evidence
show was not done until October 12, the day before it was recorded. Had other creditors
before that time obtained a mortgage or levied upon the property, their lien would certainly
have been prior to the plaintiff's mortgage. The delay simply gave them additional
opportunity to secure themselves, and we see no reason for holding that it invalidates the
mortgage.
The plaintiff did not lose his lien by his failure to take possession of the property before its
seizure by defendants. Our statute providing for chattel mortgages, as amended (Stats. 1887,
66), contains no requirement that the mortgagee must take possession of the property within
any particular time. In that respect such a mortgage does not seem to differ from one upon
real estate. In fact, the principal purpose of the amendment mentioned seems to have been to
abrogate the time limitation previously existing upon such mortgages, and to assimilate them
to real estate mortgages. Such a mortgage is merely security for the payment of a debt
(Shoecraft v. Beard, 20 Nev. 182), and, although under the principles applicable to them, the
mortgagee is entitled to the possession of the property upon default being made, there is
nothing that requires him to take it at any particular time, nor that, in the absence of fraud,
makes his delay in so doing fatal to his claim. Such is the conclusion announced by other
courts under similar statutes, and we see no reason to doubt its correctness. (Wescoat v.
Crawford, 22 S. E. Rep. 792, 801; Spraights v. Hawley, 39 N. Y. 441; Jones, Chat. Mort.,
sec. 369.) In Mitcham v. Schuessler, 98 Ala. 635, 638, the court said: Indulgence for an
unreasonable time after the law day of a mortgage is a circumstance which the jury may
consider, in connection with other facts, in determining the bona fides of a mortgage in its
inception, or as to whether the secured debt has been satisfied. But if the mortgage is bona
fide, and the debt secured has not been paid, no indulgence to the mortgagor, although the
effect of such indulgence be to protect the debtor in the possession and enjoyment of the
property, will affect the validity of the mortgage security. In such cases the only remedy of the
mortgagor is to redeem, and his creditors can secure no rights."
23 Nev. 194, 203 (1896) Streeter v. Johnson
mortgagor is to redeem, and his creditors can secure no rights. Cases where the contrary has
been held, seem to have been decided under statutes differing from ours.
No errors appearing, the judgment will be affirmed. It is so ordered.
____________
23 Nev. 203, 203 (1896) Donlan v. Clark
[No. 1465.]
J. H. DONLAN, Respondent, v. A. J. CLARK, Appellant.
BailmentPresumption if Goods Are LostConversion.When a person is intrusted with the care and custody
of goods, it is his duty to return them at the end of the bailment, or account for their loss, and show that it
happened without legal negligence upon his part. If he fails to do either, the presumption is that he has
converted them, or that they have been lost through his negligence and he is responsible for them.
IdemOrdinary CareGross Negligence.This is equally true, whether, by the nature of the bailment, the
bailee is bound to exercise ordinary care and diligence, or is liable only for gross neglect.
IdemLoss Of GoodsBurden Of Proof.The burden of proving that they have been lost without the fault
being upon him, it is not sufficient for him simply to produce evidence to that effect. He must establish the
fact to the satisfaction of the court. (Syllabus by Bigelow, C. J.)
Appeal from the District Court of the State of Nevada, Washoe county; A. E. Cheney,
District Judge:
Action by J. H. Donlan against A. J. Clark. From a judgment for plaintiff, defendant
appeals. Affirmed.
In March, 1894, the plaintiff left with the defendant, a hotel keeper at Reno, Nevada, a
trunk full of masquerade costumes and masks, in pledge for the payment of a board bill of
$17, upon the agreement that, when the money was paid, they were to be sent to him, as he
might direct. The money was paid in January, 1895, and in the following October the trunk
was sent to the plaintiff at San Francisco, California, by express. Upon its arrival there it was
found to have been broken open, a part of the goods were missing, and the others had been
worn and damaged. A witness testified that in February, 1895, he saw a son of the defendant
and a companion upon the streets of Reno, in an intoxicated condition, and dressed in a
masquerade costume, and another witness that in October, 1895, she saw a cape, identified as
belonging to one of the costumes, in the possession of another woman, and that the
defendant's son was present when the cape was shown to her.
23 Nev. 203, 204 (1896) Donlan v. Clark
woman, and that the defendant's son was present when the cape was shown to her. On the
other hand, the defendant, his son and a clerk all testified that the trunk had been kept in a
trunk room in the basement of his hotel, which was kept securely locked, and that the trunk
had not been opened or its contents disturbed while in his possession; but the son did not
deny the testimony of the woman concerning the cape, nor was any explanation offered of it,
but he denied having been upon the streets in masquerade costume in February, 1895. The
findings and judgment were for the plaintiff, and the defendant appeals.
Robt. M. Clarke and T. V. Julien, for Appellant:
I. The property in question not being the ordinary baggage of the guest, there was no
innkeeper's lien upon it.
II. Conceding for this case that the goods were pledged for the payment of the $17 hotel
bill, that relationship ceased when the $17 was paid, and the defendant thereafter was a mere
gratuitous bailee and liable for gross negligence only. (Story on Bailment, 338; Petty v.
Overall, 42 Ala. 145; Murphy v. Bortsch, 23 Pac. 82; Jones on Pledges, 405; Scott v. Screws,
2 S. Car. 522; Erie Bank v. Smith, 3 Breus. (Pa.) 9; Bardsdale v. Richardson, 11 Wend. 25;
Platt v. Hibbord, 7 Cowen, N. Y. 497; 9 Wend. N. Y. 298; Foster v. Executors, 17 Mass.
498-507.)
III. The burden of proof is upon the plaintiff to show negligence upon the part of the
defendant. (2 Kent. Com. 4th ed., 587; Platt v. Hibbord, 7 Cowen, N. Y. 497; Bardsdale v.
Richardson, 11 Wend. N. Y. 25; 9 Wend. 268; Vose v. Valee, 4 Hun, N. Y. 628; Sellers v.
Jones, 22 Pa. St. 423; Gerard F. & M. In. Co. v. Marr, 46 Pa. St. 504.)
IV. As bailee, defendant was not a guarantor of the safety of the property, but was
required to exercise only reasonable and ordinary care. He could only be held for losses
which were the result of his negligence, and could not be made responsible for the negligence
of another. (Foster v. Executors, 17 Mass. 501-2.)
V. If defendant's employees, or some one, wrongfully and without the knowledge of
defendant, broke open the trunk and stole or damaged the goods, this could not create a
liability on the part of the defendant.
23 Nev. 203, 205 (1896) Donlan v. Clark
liability on the part of the defendant. (Green v. Birtchard, 27 Ind. 475; Davis v. Gray, 141
Mass. 531; Schermer v. Neurath, 54 Md. 497; 39 Am. Rep. 397.)
James F. Dennis, Chas. A. Jones and E. R. Dodge, for Respondent:
I. The law requires of the pledgee the exercise of ordinary diligence in the care and
custody of the goods pledged, and he is responsible for ordinary diligence. (Story on
Bailments, secs. 323-332. (St. Losky v. Davidson, 6 Cal. 644.)
II. Bailee liable only for gross negligence is still liable for actual conversion. (Graves v.
Smith, 80 Am. Dec. 762.)
III. The burden of proof in case of loss is on the bailor to prove the contract and the
delivery of the goods; then upon the bailee to show the loss and the manner of the loss; the
burden then shifts to the bailor to establish that the loss was due to negligence. (28 Am. &
Eng. Ency. 648, note 1, p. 650; Lancaster Mills v. Merchants' Cotton P. Co., 89 Tenn. 1; 24
Am. St. Rep. 536; Runyan v. Caldwell, 7 Hump. Tenn. 134.)
By the Court, Bigelow, C. J. (after stating the facts):
When a bailee, either for hire or gratuitous, is entrusted with the care and custody of
goods, it is his duty to return them at the end of the bailment or account for their loss, and
show that it happened without legal negligence upon his part. If he fails to do either, the
presumption is that they have been converted by him or lost through his negligence, and he is
responsible for them. (Beardslee v. Richardson, 11 Wend. 25; Logan v. Mathews, 6 Pa. St.
417; Wiser v. Chesley, 53 Mo. 547; Cumins v. Wood, 44 Ill. 416; Murray v. Clarke, 2 Daly,
102; Arent v. Squire, 1 Daly, 347.) We regard these principles as conclusive of the
defendant's liability in the case. The court found, upon sufficient evidence, that he received
the goods in good order, that he failed to return a part of them, and returned the balance in a
damaged condition. He failed to account for this state of affairs. His defense consisted of a
denial that any of the goods had been lost or damaged while in his possession, and his
evidence, if true, showed that such could not have been the case, but unfortunately for him
there was evidence to the contrary, and the court found the fact against him.
23 Nev. 203, 206 (1896) Donlan v. Clark
unfortunately for him there was evidence to the contrary, and the court found the fact against
him.
The very fact that they were so taken and used, is, under the circumstances, strong
evidence that it was either done with the defendant's consent, or through gross negligence
upon his part. (Boise v. H. & N. H. R. R. Co., 37 Conn. 272.) This finding makes that one of
the settled facts in the case, and leaves him in the predicament of a bailee in whose custody
goods have been lost or damaged, and for which he has wholly failed to account. This, at
least, threw upon him the burden of proving that they had not been lost or damaged through
any fault of his, and this means more than that he must produce evidence to that effect. He
must establish it to the satisfaction of the court, and if he does not, where there is a conflict in
the evidence, the case stands the same as though no evidence to that effect had been offered.
Had he been able to establish that the goods had been stolen, or used without his
connivance or negligence, this would have constituted a complete defense for him, even
though the wrongful act had been perpetrated by a servant or some one in his employ. (Jones
on Pledges, sec. 403; Story, Bailments, secs. 88, 338.) But no explanation whatever left him
responsible for the loss, and, as already stated, this is equally true whether, after payment of
the debt, he was bound to exercise ordinary care and diligence, or was liable only for gross
neglect.
We are of the opinion that there was some substantial evidence to support the finding that
the damage was done while the goods were in the defendant's possession, and not while in
charge of the express company.
The judgment is affirmed.
____________
23 Nev. 207, 207 (1896) Gardner v. Gardner
[No. 1461.]
IDA L. GARDNER, Respondent, v. JAMES H. GARD-
NER, Appellant.
DivorceExtreme CrueltySufficiency of Allegations in Compliant.In an action by a wife for divorce, the
complaint, after alleging several threats of defendant to kill plaintiff, set out that, on a certain date,
defendant falsely accused plaintiff of improper conduct in keeping company with other men without
defendant's consent, and that such accusation, reiterated almost daily for six weeks, in conjunction with the
said threats, and defendant's frequent drunkenness, and a habit of gambling, had caused plaintiff great
bodily pain and mental anguish which seriously affected her health, destroyed her happiness, and rendered
her life so unendurable that she was forced to cease living with defendant: Held, sufficient to constitute a
cause of action for divorce on the ground of extreme cruelty. (Belknap, J., dissenting.)
IdemEvidence Not Limited to Facts Charged.In an action for divorce upon the ground of extreme cruelty,
the evidence is not necessarily to be limited to the particular facts charged, but that evidence of other facts,
whether before or after suit brought, which serves to give character to the acts of cruelty alleged and
proved, is admissible.
IdemIncompetent Evidence.The admission of incompetent evidence in a divorce case is not ground for
reversal where it appears that the finding of the court was not based thereon.
IdemEvidenceConflict ofRule.The same as in any other case, coming before an appellate court, where
it is claimed that the evidence is insufficient to support the findings or verdict, the point before us is not
whether, upon the whole evidence, it is correct, but whether there is any substantial evidence to support it;
that is, whether, when the decree is in favor of the plaintiff, he has proved such a case as would have made
a non-suit improper.
PracticePleadingWaiver of Objections.An objection that the several causes of action set out in the
complaint are not separately stated, is waived by answering to the merits.
IdemWhen Assignment of Error Not Considered by Appellate Court.If appellant presents no argument or
authorities in support of an alleged error in the court below, this court will not consider the assignment
unless the error is so unmistakable that it reveals itself by a casual inspection of the record.
IdemDemurrerMotion to Make Pleading More Definite.The objection that two causes of action are not
separately stated in the complaint, but are mixed together in one count, is not a ground of demurrer, but
such a fault is to be corrected by a motion to make the pleading more definite and certain by separating and
distinctly stating the different causes of action. (Concurring opinion by Bigelow, C. J.)
Appeal from the District Court of the State of Nevada, Ormsby county; C. E. Mack,
District Judge: Action by Ida L.
23 Nev. 207, 208 (1896) Gardner v. Gardner
Action by Ida L. Gardner against James H. Gardner for divorce. From a judgment for
plaintiff and from an order denying a new trial, defendant appeals. Affirmed.
The facts sufficiently appear in the opinion.
Torreyson & Summerfield and M. A. Murphy, for Appellant:
I. The court erred in overruling the demurrer to the complaint in this: There are three
separate and distinct causes of action stated, to wit: Failure to provide, habitual gross
drunkenness and gambling, and extreme cruelty, jumbled together so that it cannot be
determined from the reading of the complaint where one count or cause of action leaves off,
and the other commences, and said complaint does not conform to the closing paragraph of
section 3086 of civil procedure, in that they are not separately stated.
II. The demurrer should have been sustained on the ground of ambiguity and for
uncertainty in the complaint. The complaint attempts to set up a cause of action for cruelty, in
a general way. Mere allegations of cruelty, in the terms of the statute, are not sufficient, since
that would be alleging a conclusion of law instead of the ultimate fact. (Callen v. Callen, 44
Kan. 370; White v. White, 84 N. C. 340; Smith v. Smith, 43 N. H. 334; Walton v. Walton, 32
Barb. 203.)
III. A divorce should never be granted upon evidence of conduct or conversation which
occurred after the filing of the complaint, and it was error in the court to permit counsel for
the plaintiff, and for the court, over the objections of the defendant, to ask and insist upon
answers being given to questions concerning the conduct and declarations of the defendant
occurring after the date of filing of the complaint. (Bennett v. Bennett, 2 Post. Mich. 484.)
IV. We are well aware that the appellate court will seldom set aside or reverse the
judgment of the nisi prius court, when the evidence is conflicting, but the position we take is:
Taking the testimony of the plaintiff and her witnesses, giving to it all the weight to which it
is entitled under the law of marriage and divorce; the duties of the wife towards her husband;
the powers and duties of the husband as the recognized head of the familyit is not sufficient
to justify the judgment and decree in this case, dissolving the bonds of matrimony
existing between these parties.
23 Nev. 207, 209 (1896) Gardner v. Gardner
justify the judgment and decree in this case, dissolving the bonds of matrimony existing
between these parties.
V. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil
attention and accommodation, occasional sallies of passion, do not amount to legal cruelty;
threats of violence and words of menace are not alone cruelty; if the threats were meaningless
or made in such a manner as to evince no determination to carry them into execution, there is
no reasonable apprehension of harm. (Close v. Close, 9 C. E. Green, N. J. Chan. 338; Shell v.
Shell, 2 Sneed, 34 Tenn. 716; Adams v. Adams, 78 Tex. 827; Ruckman v. Ruckman, 58 How.
Pr. 278.)
VI. All the authorities go to the extent of saying that there must be reasonable
apprehension of bodily hurt, and such as prevents the complainant from properly performing
marital duties. (Vognos v. Vognos, 15 Ill. 186; Richards v. Richards, 1 Grant Pa. 389;
Coursey v. Coursey, 60 Ill. 186; Kennedy v. Kennedy, 23 Stickles, N. Y. 360; Davis v. Davis,
55 Barb. 130; Morris v. Morris, 14 Cal. 70.)
VII. In granting a divorce to the wife on the ground of cruelty, the law presumes her not to
be the authoress of her own sufferings; it is on the presumption that her own conduct has been
proper; if not, the remedy is in her own power; she has only to change her conduct; it is her
duty to reform, and promote peace, and the evil complained of may cease. (Johnson v.
Johnson, 14 Cal. 460; Reed v. Reed, 4 Nev. 395; Poor v. Poor, 29 Am. Dec. 668; Conant v.
Conant, 10 Cal. 257; Skinner v. Skinner, 5 Wis. 451; Knight v. Knight, 31 Iowa, 451; Molton
v. Molton, 2 Barb. Oh. 309; Richards v. Richards, 37 Pa. St. 227; Lelands v. Jore, 5 La. Ann.
32; Edgerton v. Edgerton, 75 Iowa, 68; Childs v. Childs, 49 Md. 509; Blurock v. Blurock, 4
Wash. 495; Trowbridge v. Carlin, 12 La. Ann. 882.)
VIII. A wife is not entitled to a divorce for cruelty where she has provoked the violence of
which she complains by associating with men against the husband's repeated protests. (26 N.
Y. Supp. 246, affirmed in Taylor v. Taylor, 74 Hun, 639; Evens v. Evens, 82 Iowa, 462.)
Alfred Chartz, for Respondent:
I. Where a demurrer to a complaint is put in, and overruled, and the defendant then
answers, the answer is a waiver of the demurrer.
23 Nev. 207, 210 (1896) Gardner v. Gardner
ruled, and the defendant then answers, the answer is a waiver of the demurrer. (DeBoom v.
Priestly, 1 Cal. 206; Lonkey & Smith v. Wells, 16 Nev. 271; Hammersmith v. Avery, 18 Nev.
225; Brown v. Saratoga R. R. Co., 18 N. Y. 495; 2 Wait's Pr. 456.)
II. The court did not err in allowing testimony with regard to the conduct of the defendant
after the filing of the amended complaint any more than any court errs in instructing juries in
arriving at their verdict they may take into consideration the conduct of the parties and
witnesses upon the stand, and judge of their interest in the matter to enable the jury to see
who is telling the truth and who is not.
III. The only question for the supreme court to decide is whether, taking the testimony of
the plaintiff as true, a divorce should be granted. The lower court has found the testimony of
the defendant untrue. The lower court had the best opportunities to judge of that matter, and
the supreme court will not disturb the opinion of the lower court in that matter, except in
matters in which the supreme court will have an equal opportunity of judgment.
IV. No court ought to wait until a threatened act of legal cruelty is committed. (1 Bish. on
Mar. and Div. 729.)
V. Counsel weaves around his argument the fact that there is no single act which amounts
to legal cruelty under his understanding of what constitutes legal cruelty. But the authorities
uniformly hold that the entire picture must be taken into view, and, if such a life would be
dangerous to health, legal cruelty is established.
VI. The court cannot enjoy the proper opportunities of judging the character of the parties.
This court can never know whether the plaintiff is beautiful, educated, refined, or the reverse.
This court has not heard the voice of the defendant, or witnessed his emotions and demeanor
in court; nor has it heard any of the witnesses testify. This court has nothing before it but the
printed words of the transcript. Now, I claim that particularly in an action for divorce, and
more particularly do I claim in an action for divorce upon the ground of legal cruelty, the
matters absent from this court are essential in the highest degree in judging whether a divorce
should be granted or refused. The lower court had all these opportunities, and decreed a
divorce, and it should not be disturbed, unless it very clearly appears to this court that the
plaintiff is not entitled thereto.
23 Nev. 207, 211 (1896) Gardner v. Gardner
all these opportunities, and decreed a divorce, and it should not be disturbed, unless it very
clearly appears to this court that the plaintiff is not entitled thereto.
By the Court, Bonnifield, J.:
In this action the trial court granted a decree in favor of the plaintiff and against the
defendant, dissolving the bonds of matrimony then existing between them on the ground of
extreme cruelty on the part of the defendant towards the plaintiff, and awarded to her the care
and custody of their minor child. From this decree and the order of the court denying his
motion for new trial the defendant appeals.
The appeal is prosecuted on the alleged grounds: (1) Errors in law occurring at the trial and
excepted to by the defendant. (2) Insufficiency of the evidence to support the decision of the
court and that the same is against law.
The complaint is based on two of the statutory grounds for divorce: Neglect to provide,
etc., and extreme cruelty, but the causes of action are not separately stated, or rather they are
embraced in one count. The defendant demurred to the complaint upon the alleged grounds of
its ambiguity, uncertainty, etc., and the insufficiency of the facts stated to constitute a cause
of action. The court sustained the demurrer with respect to some of the specified grounds of
objection contained therein and overruled it in all other respects. The complaint was amended
to cure the defects with respect to which the demurrer had been sustained, the defendant
answered, and the case went to trial on issues of fact.
The overruling of the demurrer is assigned as error, and the alleged error is argued by
appellant's counsel. It is insisted that there are several causes of action united and jumbled
together," and do not conform to the closing paragraph of section 3086 of the General
Statutes in that they are not separately stated. Whether or not these objections can be taken
by demurrer we do not pass upon. If the demurrer was proper, the defendant waived the
objections by answering. All objections to a complaint are waived by answering and raising
issues of fact, except: (1) That the court has no jurisdiction of the person of the defendant or
the subject of the action."
23 Nev. 207, 212 (1896) Gardner v. Gardner
the subject of the action. (2) That the complaint does not state facts sufficient to constitute a
cause of action. (Lonkey v. Wells, 16 Nev. 271; Hammersmith v. Avery, 18 Nev. 225; Bliss
on Code Pleadings, sec. 417.)
The allegations of jurisdiction and marriage being fully and sufficiently made by the
amendments, the only question to be considered concerning the complaint is: Are the facts
stated therein sufficient to constitute a cause of action for divorce on the ground of extreme
cruelty? By the complaint the plaintiff alleges: That since said marriage the defendant has
treated her in a cruel and inhuman manner, and in particular as follows: [After alleging
several threats of the defendant to take the life of the plaintiff, with the time, place and
circumstances, and other misconduct on his part, it is further alleged:] That on or about the
3d day of March, A. D. 1894, at Wellington, Lyon county, Nevada, the said defendant falsely
charged that plaintiff was guilty of improper conduct as a wife in keeping company and going
with other men without his consent, and from that date until the 17th of April, A. D. 1894,
has almost daily so charged her, which, in conjunction with the acts of cruelty hereinbefore
set forth, his frequent drunkenness and his habit of gambling as aforesaid, caused her great
bodily pain and mental anguish, which seriously impaired her health, destroyed her happiness
and rendered her life so miserable and unendurable that she was forced to cease cohabiting
and living with defendant on said 17th day of April, A. D. 1894.
We are of opinion that the facts stated are sufficient to constitute a cause of action, and, if
proven, entitle the plaintiff to the decree granted.
Certain testimony concerning the conduct of the defendant towards the plaintiff was
offered and objected to by the defendant's counsel, on the ground that the alleged conduct
occurred after the action was brought. The objection was overruled and the evidence
admitted, to which ruling the counsel excepted. The admission of this evidence is assigned as
error, and noticed in argument by counsel for appellant. The record shows that the findings of
fact on which the decree of divorce was granted were based on the evidence of the
defendant's conduct prior to the filing of the complaint, and that all the facts found antedate
the commencement of the action.
23 Nev. 207, 213 (1896) Gardner v. Gardner
and that all the facts found antedate the commencement of the action.
The admission of incompetent evidence by the trial court is not reversible error on appeal
where it appears that the verdict or finding was not based upon it. (McDonald v. Jacobs, 85
Ala. 64; People v. Collins, 75 Cal. 411; Markell v. Mathews, 3 Colo. App. 49; 2 Ency.
Pleadings and Practice, 549, et seq.)
There are numerous decisions of this court running through many of the reports, from
Mitchell v. Bromberger, 2 Nev. 345, to State v. Lewis, 20 Nev. 333, which hold to the effect
that the judgment of an inferior court will not be set aside on appeal for errors committed on
the trial which it appears could not have prejudiced the appellant.
While the acts or conduct of a defendant after suit brought cannot be made the ground for
divorce, it seems to be well settled that specific acts of cruelty occurring during the period in
which it is alleged the misconduct took place, although not specifically alleged, may be
received in evidence as explanatory of those averred and as giving weight to them and color
to the acts alleged and proved. (2 Bishop on Marriage, Divorce and Separation, secs. 1442,
1443, and notes.) And Bishop, in same volume, sec. 1451, says: One cannot see why they
may not receive color as well from what occurred after the suit was brought as before.
In the case of Doughaday v. Crowell, 3 Stockton (N. J.) Rep. 210, the court said: It may
be said that the court must look at the case as the bill presents it, and must confine itself to
matters which occurred previous to the commencement of the suit. But the court may look at
the conduct of the husband towards the wife since the commencement of the suit for the
purpose of giving character to the acts which are relied upon as grounds for the divorce.
We are of opinion that the evidence is not necessarily to be limited to the particular facts
charged, but that evidence of other facts, whether before or after suit brought, which serves to
give character to the acts of cruelty alleged and proved, is admissible.
Several other alleged errors are assigned which will not be considered, as they have not
been noticed in argument.
23 Nev. 207, 214 (1896) Gardner v. Gardner
If appellant presents no argument or authorities in support of an alleged error in the court
below, this court will not consider the assignment, unless the error is so unmistakable that it
reveals itself by a casual inspection of the record. (Allison v. Hagen, 12 Nev. 38.) And
alleged errors, argued but not embraced in the assignment will not be considered. (Sherman v.
Shaw, 9 Nev. 148; Boyington v. Longley, 19 Nev. 69.)
The Evidence: The evidence is conflicting, and while it does not make out a very strong case
against the defendant, it tends to prove the alleged acts of cruelty as found by the court.
Bishop, in commenting upon the degree of cruelty or what extent of harm must be
apprehended, says: There is no possibility of measuring the depth of woe or danger required,
except by the understandings of the men who occupy the bench and the jury box, enlightened
and strengthened by what has been heretofore deemed as adjudged.
Taking the testimony altogether, as to the specific acts of the defendant, and his general
conduct embraced within the period named in the complaint and as to the effect they had on
the plaintiff, we do not think we would be justified in disturbing the findings of the court.
The judgment and order denying a new trial are affirmed.
Bigelow, C. J., concurring:
The objection that the two causes of action are not separately stated in the complaint, but
are mixed together in one count, is not a ground of demurrer, but such a fault is to be
corrected by a motion to make the pleading more definite and certain by separating and
distinctly stating the different causes of action. (Pomeroy, Rem. & Rem. Rights, sec. 447;
Bliss, Code Pleadings, sec. 412.)
Whether there is sufficient evidence to support the finding that the defendant has been
guilty of extreme cruelty, is a question upon which there has been considerable doubt in my
mind, and it is not without hesitation that I conclude there is. The same as in any other case
coming before an appellate court where it is claimed that the evidence is insufficient to
support the findings or verdict, the point before us is not whether, upon the whole evidence, it
is correct, but whether there is any substantial evidence to support it; that is, whether,
when the decree is in favor of the plaintiff, he has proved such a case as would have made
a non-suit improper.
23 Nev. 207, 215 (1896) Donlan v. Clark
whether there is any substantial evidence to support it; that is, whether, when the decree is in
favor of the plaintiff, he has proved such a case as would have made a non-suit improper. If
there isif there is a substantial conflict in the evidencethen the duty and responsibility of
finding the facts for the evidence devolve upon the trial court, and constitute a question
concerning which this court has nothing to do, even though we may feel that upon the whole
evidence we should have come to a different conclusion.
The evidence upon the plaintiff's part shows that she and defendant quite frequently had
disagreements and quarrels concerning his habits of drinking and gambling, of which she
accused him, and on account of which she threatened to leave him if he did not reform. At
such times, when angered, he often told her that if she did he would kill her, and sometimes
that he would kill her, their infant child and himself. He also became quite jealous of her, as
she claims, and, as the court presumptively found, without any clause, and he accused her
often of improper conduct with other men. According to her version, his conduct was
certainly very unjustifiable on the night when he refused to permit her to get their infant child
as they passed, on their way home, her mother's house, where it had been left earlier in the
evening, and compelled her to remain in the buggy and return home without the child, under
threats of blowing her brains out. Her evidence is that after getting home he pushed her into
the house, locked the door and searched for a pistol, certainly for the purpose of intimidating
her, if not of using it. That she was under some apprehension that he might use it some time
is shown by her having previously removed it beyond his reach. It may be that he would not
have used it, and that he never had any intention of doing so, but at the same time the contrary
is possible. At any rate, a husband indulging in such acts and language cannot complain very
much if he is taken seriously. Unless it is clear that they were mere idle threats, courts are
hardly justified in experimenting to ascertain whether they were or not, for the experiment
might be a disastrous one for the wife. In addition to this apprehended danger, she alleged,
and proved by her own and her mother's testimony, that his conduct had affected her health,
and the court found that it had rendered her life unendurable.
23 Nev. 207, 216 (1896) Gardner v. Gardner
her health, and the court found that it had rendered her life unendurable.
Under these circumstances, while I consider the case, particularly in view of the
defendant's testimony, a weak one, I cannot say that there is not substantial evidence to
support it.
I therefore concur in affirming the judgment and order.
Belknap, J. dissenting:
The evidence is insufficient in my judgment to support the charge of extreme cruelty. I
therefore dissent.
____________
23 Nev. 216, 216 (1896) State v. LaGrave
[No. 1470.]
STATE OF NEVADA, ex rel. REINHOLD SADLER, Relator, v. C. A. LaGRAVE, State
Controller, Respondent.
Constitutional LawGovernorLieutenant-Governor to Become Acting Governor, WhenSalary Of.Under
art. V, sec. 18, of the state constitution, providing that, upon the death of the governor, the powers and
duties of the office shall devolve upon the lieutenant-governor for the residue of the term, the
lieutenant-governor, upon the death of the governor, becomes acting governor, and entitled to receive the
salary attached to that office.
Original Proceeding. Application for writ of mandate on the relation of Reinhold Sadler,
against C. A. LaGrave, State Controller. Granted.
The facts sufficiently appear in the opinion.
James R. Judge, for Relator:
I. The powers and duties of the office of governor of the state of Nevada having, by reason
of the death of Governor John E. Jones, on April 10, 1896, devolved upon relator, he is
entitled to receive the salary provided by law to be paid to the governor. (Baxter v. Brooks, 29
Ark. 173; Chadwick v. Earhart, 11 Or. 389.)
II. The identical question at issue here came twice before the comptroller of the state of
New York, under a section of the constitution of that state (Art. III, sec. 6, Const. N. Y.), of
which section 18 of article V of the constitution of the state of Nevada is a verbatim copy,
and in both instances it was held, by the comptroller, that the lieutenant-governor, upon
whom the powers and duties of the office of governor devolved, was entitled to the salary
given by law to that officer.
23 Nev. 216, 217 (1896) State v. LaGrave
upon whom the powers and duties of the office of governor devolved, was entitled to the
salary given by law to that officer. These decisions of the comptroller were referred to with
approval by the court of appeals of New York, in the case of People v. Hopkins, 55 N. Y. 74.
To the same effect is: U. S. v. Bassett, 2 Story, 389; U. S. v. Morse, 3 Story, 87; Sleigh v. U.
S., 9 Ct. Claims, 369; Merriam v. Clinch, 6 Blatch. 5.
III. The powers and duties of the office of governor, which have devolved upon relator,
and with which he became clothed upon the death of Governor Jones, are not only such
powers as are necessary to enable him to discharge his duties properly, but the right and
power to demand and receive the salary attached by law to the office. (Merriam v. Clinch, 6
Blatch. 5.)
Robt. M. Beatty, Attorney-General, for Respondent:
I. Respondent contends that relator, as lieutenant-governor, did, upon the death of
Governor Jones, remain lieutenant-governor, but then became and still is such
lieutenant-governor, with the powers and duties of governor devolving upon him. (Const. of
Nev., art. V, sec. 18.)
II. In addition to the provisions of the last-named section, our constitution contemplates
the existence of a vacancy in the office of governor (Const. Nev., art. V, sec. 17), and
provision is made in terms for such a contingency. Further, it is a noticeable fact that under
this constitution in no case can a vacancy in the office of lieutenant-governor occur, nor is
there any provision for a succession to the office of lieutenant-governor by it or our statutes in
the event of any succession by the incumbent of that office to the office of governor.
III. The cases cited by respondent under the constitution of the state of New York, adopted
in 1821, appear to be no authority for our guidance in this proceeding, for the reason that our
statutes provide a salary or, more properly speaking, a per diem for the lieutenant-governor
when acting as governor (Stats. 1891, p. 104) as exact and certain as the salary of the
governor; while in the state of New York, in the year 1829, when those cases decided that he
should receive the salary provided for the governor, there presumably was no salary or
per diem fixed by law for him when acting as governor when he was so acting, either
temporarily or permanently.
23 Nev. 216, 218 (1896) State v. LaGrave
receive the salary provided for the governor, there presumably was no salary or per diem
fixed by law for him when acting as governor when he was so acting, either temporarily or
permanently.
By the Court, Belknap, J.:
At the general election held in the month of November, 1894, John E. Jones was elected
governor of the state and Reinhold Sadler was elected lieutenant-governor. Governor Jones
died on the 10th day of April, 1896. Thereafter the relator assumed the duties of the
gubernatorial office, and, before the institution of this proceeding, demanded of defendant, as
controller, a warrant upon the treasurer for the amount of his salary as the acting governor
from the 11th day of April, 1896, to the 30th day of the same month. Defendant declined to
draw the warrant as requested, although there is an unexpended balance in the treasury
appropriated for the payment of the salary of the governor.
The provision of the constitution bearing upon the subject is as follows: In case of the
impeachment of the governor, or his removal from office, death, inability to discharge the
duties of the said office, resignation or absence from the state, the powers and duties of the
office shall devolve upon the lieutenant-governor for the residue of the term, or until the
disability shall cease. * * *
It is claimed, on the part of respondent, that, when the contingency above mentioned
arises, by which the powers and duties of the office of governor devolve upon the
lieutenant-governor, no change occurs in the position of that officer. He remains
lieutenant-governor, exercising the powers and duties of the governor, but not entitled to the
salary attached to the office.
An analogous question was considered in the case of Church v. Hopkins, 55 N. Y. 74. The
laws of the state of New York require the superintendent of the insurance department to
appoint a deputy from among his clerks, who shall possess the powers and perform the duties
attached by law to the office of superintendent, during a vacancy in the office. Relator had
been appointed such deputy. His principal had resigned, and the powers and duties of the
office had devolved upon him under the statute.
23 Nev. 216, 219 (1896) State v. LaGrave
upon him under the statute. He sought to compel the controller to issue a warrant for the
salary allowed by the statute to the superintendent. The court determined that he was entitled
to it. In its opinion the court said: The statute confers, in the case of a vacancy, upon the
deputy all the powers and imposes upon him all the duties of the office of the superintendent
during its continuance. In short it makes him to all intents and purposes acting superintendent
for that time during which there is no other superintendent. The act contemplates that there
shall at all times be a person clothed with all the powers and subject to all the duties of
superintendent, * * * and that there also shall be a clerk, designated as deputy, possessing the
powers and subject to the duties of the office during the absence and inability of the principal
to perform them. * * * This provision is carefully made to avoid inconvenience to the public
for want of a person so authorized. Upon a vacancy all the powers of the superintendent are
given to the deputy, and he is to perform all the duties. Among these powers and duties is the
designation of a clerk as his deputy, to the end that there may be no failure of a person to
discharge the duties by the absence or inability of the acting superintendent to discharge
them. This acting superintendent is as liable to be unable to discharge the duties of the office
from absence or inability as one appointed thereto by the governor, and there is the same
necessity for providing for such a contingency in case of the former as in that of the latter.
Such provision is made in the case of the former by conferring upon him the powers and
imposing upon him the duties of the superintendent. This language clearly includes the power
of designating a clerk to act as his deputy, etc. This power, being included in the language and
clearly necessary for the practical discharge of the duties of the office, we must assume that it
was the intention of the legislature to confer it upon the acting superintendent during a
vacancy.
Again at page 80: In case of a vacancy in the office, all its powers and duties at once
devolve upon the deputy. There remains no other vested with any of its functions. The deputy
at once becomes acting superintendent, and his acts are, to all intents and purposes, those of
superintendent.
23 Nev. 216, 220 (1896) State v. LaGrave
He is entitled to the emoluments of the office, the same as though appointed thereto by the
governor, etc., as provided by statute. The duties and responsibilities are the same. His acts
thereafter are regarded as those of superintendent, and not those of deputy. He is entitled to
the salary of the former and not to that of the latter office. The statute precludes the idea that
the same person can hold both offices. This would be my conclusion in the absence of any
precedents sustaining it. But there are precedents which, though not judicial, I regard as
entitled to be considered as decisive of the question under consideration. In the constitution of
the state, adopted in 1822, will be found the following provision: In case of the impeachment
of the governor, or his removal from office, death, resignation or absence from the state, the
powers and duties of the office shall devolve upon the lieutenant-governor for the residue of
the term, or until the governorabsent or impeachedshall return or be acquitted.' (Const.
1822, art. III, sec. 6.) On the 11th of February, 1828, the office of governor became vacant by
the death of De Witt Clinton, the then incumbent of the office, and its powers and duties,
under the above provision of the constitution, devolved upon Nathaniel Pitcher, then
lieutenant-governor. The question arose whether he was to be regarded, in the exercise of the
powers and performance of the duties so vested in him, as acting governor, or in the
performance of the contingent duties of lieutenant-governor, and as a consequence, whether
he was entitled to the salary of the former office, or the compensation given to the
lieutenant-governor for his services as such. It was held by William L. Marcy, then
comptroller, that he was to be regarded as the acting governor, and entitled to the salary given
by law to that officer. The same questions, under the same provision, again arose in 1829,
upon the resignation of the office of governor by Martin Van Buren, and the powers and
duties of the office devolving upon Enos T. Throop, then lieutenant-governor, and were
decided in the same way by Silas Wright, then comptroller. It will be seen that these
questions were identical with that in the present case. We surely shall not go far astray in
following the precedents established by these able jurists, wise statesmen and rigid
economists.
23 Nev. 216, 221 (1896) State v. LaGrave
Merriam v. Clinch, 6 Blatch. 5, was a contest for the emoluments of the office of collector
of the customs at the port of New York between the administrator of the estate of Preston
King, the late collector, and Mr. Clinch, a special deputy, appointed by Mr. King. The
twenty-second section of the act of congress of March 2, 1799, authorizes the collector to
appoint a special deputy upon whom, in case of the death of the collector, the duties and
authorities of the office of collector shall devolve, and for whose conduct the estate of the
deceased collector shall be answerable. The analogy between the provision of the constitution
of the United States upon the devolution of the powers of the presidential office and a similar
provision in the twenty-second section of the statute providing for the devolution of the
powers and authorities of the collector upon the deputy was noticed. The court said: The
constitution of the United States (art. II, sec. 6) provides that in case of the removal of the
president from office, or of his death, resignation or inability to discharge the powers and
duties of the said office, the same shall devolve upon the vice-president.' The provision, in
this section of the constitution, that the powers and duties of the office of president shall
devolve upon the vice-president, is identical, in legal effect, with the provision, in the
twenty-second section of the act of 1799, that the authorities and duties vested in the collector
shall devolve on his deputy. Three times since the adoption of the constitution the president
has died, and, under the provision referred to, the powers and duties of the office of president
have devolved upon the vice-president. All branches of the government have, under such
circumstances, recognized the vice-president as holding the office of president, as authorized
to assume its title, and as entitled to its emoluments.
In Chadwick v. Earhart, 11 Or. 389, one of the questions was whether under the
constitution of Oregon the secretary of state, upon whom the duties of the office of governor
devolve upon the death of the governor, had a right to the salary of the office. The
constitution of Oregon provides that in case of the removal of the governor from office, or of
his death, resignation, or inability to discharge the duties of the office, the same shall devolve
on the secretary of state; and in case of the removal from office, death, resignation or
inability both of the governor and secretary of state, the president of the senate shall act
as governor until the disability be removed or a governor be elected."
23 Nev. 216, 222 (1896) State v. LaGrave
and in case of the removal from office, death, resignation or inability both of the governor
and secretary of state, the president of the senate shall act as governor until the disability be
removed or a governor be elected. It was claimed that the duties of the office of governor
became annexed to the office of secretary of state and were discharged as duties incident to
the latter office. The same contention, mutatis mutandis, is made here. The court said: This
position seems to require: (1) Either that the office of governor should continue vacant during
the time the secretary discharges its duties, and that such duties be in some way performed by
the secretary of state, as such, consistently with a condition of vacancy; or (2) that the office
be filled and yet he who fills it be in nowise governor, but continue to be merely secretary of
state. In the first place, it is not shown how an office can be vacant, and yet there be a person,
not the deputy, or locum tenans, of another, empowered by law to discharge the duties of the
office and who does in fact discharge them. It is not explained how, in such a case, the duties
can be separated from the office, so that he who discharges them does not become an
incumbent of the office. And, in the second place, how a person can fill the office of governor
without being governor. It is the function of a public officer to discharge public duties. Such
duties constitute his office. Hence, given a public office and one who, duly empowered,
discharges its duties, and we have an incumbent in that office. Such is the case here. The
secretary of state, by force of the function cast upon him, became governor, and,
consequently, entitled to the salary appertaining to the office.
In the statute of March 21, 1891, fixing the salaries of state officers (Stats. 1891, p. 104),
the pay of the lieutenant-governor when acting as governor is fixed at $8 per day. From the
fact that the legislature appropriated the sum of $1,000 only for this purpose, I am of opinion
that this was intended for compensation when the governor was temporarily absent from the
state, and not for the purpose of fixing the compensation when the duties of the office
devolve upon the lieutenant-governor upon the death of the governor.
23 Nev. 216, 223 (1896) State v. LaGrave
Relator, as acting governor, is entitled to the salary attached to the office of governor.
Let the writ issue.
Bigelow, C. J., concurring:
I concur in the judgment, but do not wish to be understood thereby as holding that, upon
the death of the governor, the lieutenant-governor becomes governor in the full sense of the
term. Justice Belknap's opinion might possibly be so construed, but it seems to me that
section 17 of article V of the constitution contemplates that, upon the governor's death, his
office is to remain vacant. It reads: If, during a vacancy of the office of governor, the
lieutenant-governor shall be impeached, displaced, resign, die, or become incapable of
performing the duties of the office, or be absent from the state, the president pro tempore of
the senate shall act as governor until the vacancy be filled or the disability cease.
If, upon the death of the governor, the lieutenant-governor, ipso facto, and instantly,
becomes governor, then there could never be a vacancy in the office of governor, the
lieutenant-governor could never be impeached, displaced, etc., during such vacancy, and the
conditions upon which the president pro tem. of the senate is to act as governor could never
occur.
But, in the view I take, it is unnecessary to decide the point, and I simply suggest it by way
of caution, for, however it may be, the powers of the office do undoubtedly devolve upon the
lieutenant-governor in every sense except as expressly or impliedly limited by the
constitution. As to everything else, he virtually becomes governor. He fills the office, not
temporarily, as he would in case of the governor's absence from the state, but permanently,
and he becomes, at least, permanent acting governor for the residue of the term. Whatever
those constitutional limitations may be, there is none upon his right to draw the salary of
governor, and, as there is not, and he has the power to do everything else that the governor
can do, there seems no good reason why he cannot also draw the salary. In my judgment,
there is but one serious question as to this view, and that is that, if he can draw the governor's
salary when the governor's office is permanently vacant, as it is the same section of the
constitution that provides for both permanent and temporary vacancies, why can he not
do the same in case of the governor's absence from the state, or his temporary disability
to discharge the duties of the office?
23 Nev. 216, 224 (1896) State v. LaGrave
that provides for both permanent and temporary vacancies, why can he not do the same in
case of the governor's absence from the state, or his temporary disability to discharge the
duties of the office? To this it may, however, be answered that possibly he could draw it, but,
if not, that there is, in reason, a wide difference between a temporary vacancy and one that is
permanent. In the one case there is another person still living entitled to the salary, and both
cannot have it, while in the other there is not.
Another reason that may be offered for this conclusion is that it is a general principle of
justice and right that, where one legally performs the duties of an office, he should be entitled
to the emolments [emoluments] thereof. Admitting that there is some doubt, arising upon the
language of the constitution, whether that instrument intended the relator to have the salary of
the office under the circumstances existing here, this equitable principle, together with the
construction that has been put upon substantially similar language where the vice-president
has succeeded to the office of president, and where lieutenant-governors and other officers
have succeeded to the office of governor, by so many able statesmen and judges, would lead
me to feel, in the absence of a clear declaration to the contrary, that the doubt should be
resolved in his favor.
But it is said that, if the relator is only acting governor, then Stats. 1891, 104, which
provide that, when so acting, he shall receive $8 per day, instead of the governor's salary, is
applicable. At first blush, this seems to be the case, but I think a little closer examination will
show that that statute was not intended to provide for such a contingency as now exists. As is
perhaps the case everywhere, our governors have been in the habit of being absent from the
state more or less, at which times the lieutenant-governor, of course, becomes, for the few
days of his absence, the acting governor. By Stats. 1881, 43 (Gen. Stats., sec. 3295), it was
provided that the lieutenant-governor, when acting as governor, in the absence or incapacity
of the governor, shall receive $14 per day. By Stats. 1883, 41 (Gen. Stats. 1777), the
lieutenant-governor was made ex officio adjutant-general and state librarian, and it was
provided that "for the services he shall render as such, and while acting as governor in
the absence of the governor form the state, he shall receive an annual salary of $2,700."
23 Nev. 216, 225 (1896) State v. LaGrave
librarian, and it was provided that for the services he shall render as such, and while acting
as governor in the absence of the governor from the state, he shall receive an annual salary of
$2,700. By Stats. 1891 these offices were again taken from him, and Stats. 1891, 104, above
mentioned, was enacted, fixing his pay at $8 per day. From this statement it will be seen that
when, by the act of 1881, he was to be paid a per diem, it was for acting as governor during
the absence or incapacity of the governor, both, presumably, temporary occasions, and when,
in 1883, he was given a salary, it was for his ex officio services and for acting as governor in
the absence of the governor from the state, which, of course, would always be temporary.
These acts are in pari materia with the act of 1891, and must all be construed together in
arriving at what was intended by the latter. As the others were clearly intended for only
temporary occasions, it is fair to presume the last was also. The same inference can be drawn
from the language of the act of 1891. Though not, like the others, expressly limited to
temporary occasions, it is only to those, the duration of which must naturally be uncertain
until after the event, that a per diem payment is appropriate, while it would be absurd to so
regulate the pay of a permanent officer. There is no other officer in the state who is paid by
the dayno other who is not paid a yearly salary, and I cannot suppose it was the intention to
make the permanent acting governor an exception.
Bonnifield, J., concurring:
I am of opinion that the relator is entitled to the salary provided for the governor, and
therefore concur in the opinion that the writ prayed for should be granted.
____________
23 Nev. 226, 226 (1896) Schweiss v. District Court
[No. 1469.]
R. SCHWEISS, Relator, v. THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA IN AND FOR STOREY COUNTY, Respondent.
CountyQuasi CorporationPowers.A county is not a municipal corporation, in the full sense of the term. It
is only a quasi corporation, and possesses such powers and is subject to such liabilities only as are specially
provided for by the law.
IdemConstitutional LawGovernment Uniform.Art. IV, sec. 25, Constitution of Nevada, which requires
the legislature to establish a system of county governments, which shall be uniform throughout the state,
means that all county governments must, in all essential particulars, be alike.
IdemStorey County.The act of the legislature of March 15, 1895 (Stat. 1895, p. 73), entitled "An act to
incorporate Storey county and provide for the government thereof," is void because in conflict with that
section (Sec. 25, art. IV) of the constitution in many particulars.
IdemLocal and Special Act.It is also a local and special act regulating county business, and consequently in
conflict with sec. 20 of art. IV, of the constitution, which forbids such legislation. (Syllabus by
Bigelow, C. J.)
Original Proceeding. Application for writ of prohibition by R. Schweiss against the First
Judicial District Court of the State of Nevada in and for Storey county. Writ refused.
Original application for a writ of prohibition. The petitioner was convicted in a justice's
court of the offense of keeping a saloon in the city of Virginia, wherein liquors were sold by
the glass, without having obtained the license therefor required by an ordinance of said city.
From this conviction he appealed to the district court of the first judicial district, Storey
county, where his demurrer to the complaint upon the grounds that it did not state facts
sufficient to constitute a cause of action against him, and that the court had no jurisdiction of
the offense charged, was overruled, and the case set for trial. Thereupon he filed his petition
herein, setting out the above facts and asking that the court be prohibited from proceeding
further in the trial thereof. The defendant demurs upon the ground, among others, that the
petition does not state facts sufficient to constitute a proper ground for the issuance of the
writ.
23 Nev. 226, 227 (1896) Schweiss v. District Court
F. M. Huffaker, for Petitioner:
I. The only question to be determined by the court is the validity of the act of the
legislature of the state of Nevada entitled "An act to incorporate Storey county and provide
for the government thereof," approved March 15, 1895 (Stats. 1895, p. 73). If this act is
within the power of the legislature, the writ of prohibition herein must be made perpetual.
II. The legislature has complete control of the entire subject of counties, except where
limited by the constitution (Hess v. Pegg, 7 Nev. 23), and it has unlimited power, under the
constitution, to create municipal corporations, therefore the legislature alone is to say what
territory a municipal corporation shall occupy. In fact, it is now well settled that a municipal
corporation is such as the legislature may declare, whether a town, city, district, county or
parts of two or more counties, or even a state. (Matter of Bonds, M. Trg. Co., 92 Cal. 296;
Winbigler v. Los Angeles, 45 Cal. 36; 2 Kent, 275.)
III. If, as said in Hess v. Pegg, supra, the legislature has complete control of counties, then
there can be no constitutional objection as to what the legislature shall do with a county, so
long as it does not attempt to regulate the business common to all the counties differently in
one county from the others, or to provide a different system of county government in one
county from that of another.
IV. What may be within the constitutional inhibitions is explained by the court in
Williams v. Bidleman, 7 Nev. 68, to include an act auditing and allowing a claim against a
county, or an act directing the commissioners to allow a claim which they had rejected, as
being special acts regulating county business, while in Churchill Co. v. Humboldt, 6 Nev. 30,
it is held the legislature has the power to say what claims against the county shall have
preference in payment; and in Odd Fellows' Bank v. Quillan, 11 Nev. 109, that the act of
February 17, 1873 (Stats. 1873, 54), authorizing Lincoln county to fund its indebtedness, was
a legitimate exercise of legislative powers, and not a regulation of county business. Then,
when the act of 1895 leaves the business of Storey county to be as heretofore in all respects
and the system of county government untouched, how can it be claimed that an act creating a
municipal corporation of Storey county is either a regulation of county business or an
establishment of a system of county government?
23 Nev. 226, 228 (1896) Schweiss v. District Court
act creating a municipal corporation of Storey county is either a regulation of county business
or an establishment of a system of county government? It would seem the two are so distinct
that any misconception of them should be impossible.
V. The system of county government, which the constitution declares shall be uniform, is
not touched by the act of 1895, which simply transfers the property and revenues of the city
of Virginia and town of Gold Hill to Storey county, which is neither regulating county
business nor establishing a system of county government.
Langan & Knight, for Respondent:
I. The legislature has the right to say all counties shall be municipal corporations, but it
cannot say one particular county shall be a municipal corporation, because, in making it such,
it gives it a government not uniform with the other counties of the state, which is the thing
inhibited by secs. 25 and 20 of art. IV of the Nevada constitution, for when the constitution
points out one mode of doing an act (filling an office), the legislature cannot substitute
another. (State v. Arrington, 18 Nev. 412.)
II. If the act of 1895 created within the boundaries of Storey county a municipal
corporation only, and did not seek to form a new and different county government from that
of other counties, or from that by which Storey county was theretofore governed, and
provided for the government of such municipal corporation and left the affairs of Storey
county to be administered under the general laws theretofore existing, but merely directing
that certain county officers should also perform certain duties for the municipality, there
would be no constitutional objections to the act as a whole except its defective and improper
title.
III. Under our constitution this court says that laws may be passed which do not affect
every county of the state alike, if they are so framed as to affect all such counties as may meet
the conditions of the laws, provided those conditions are based on a real and substantial
difference in the circumstances of the county, and upon a fair classification under which any
and all counties might come at some time. But, in so doing, the court also holds that no law
specifying a different governmental authority for one county from that of the other
counties of the state, and no local or special law regulating county or township business,
can be passed, and that a law designating one county within which it is to operate, or a
law affecting to classify counties but in which the classification is apparent and illusory
rather than actual and substantial, is such a local and special law establishing such a
difference, and is therefore unconstitutional.
23 Nev. 226, 229 (1896) Schweiss v. District Court
in so doing, the court also holds that no law specifying a different governmental authority for
one county from that of the other counties of the state, and no local or special law regulating
county or township business, can be passed, and that a law designating one county within
which it is to operate, or a law affecting to classify counties but in which the classification is
apparent and illusory rather than actual and substantial, is such a local and special law
establishing such a difference, and is therefore unconstitutional. (State v. Boyd, 19 Nev. 43;
Williams v. Bidleman, 7 Nev. 68.)
IV. The purposes of the act of 1895 as expressed in the title are forbidden by the
constitution. Those purposes are: (1) To incorporate one particular countyStoreynot all
the counties of the state. Such special purpose of the Act is in conflict with art. IV of the
constitution, secs. 20, 21 and 25, also with sec. 1 of art. VIII of the constitution, which forbids
the passage of special or local acts relative to corporate powers or the creation of corporations
except for municipal purposes. A county is not a municipal corporation within the meaning of
the constitution, or in the general acceptation of the term. (2) To provide for the government
of Storey countynot the counties of the state of Nevada, but one individual countyis
directly contrary to sec. 25 of art. IV of the constitution, also to sec. 21 of said article, for the
subject of county governments is one to which, by its very nature, general laws may be made
applicable.
By the Court, Bigelow, C. J.:
The question involved in this case is the validity of the act of the legislature entitled An
act to incorporate Storey county and provide for the government thereof, approved March
15, 1895 (Stats. 1895, 73). Its constitutionality is attacked upon several different grounds, of
which it will be necessary to notice but one or two.
Section 1 of the act describes Storey county, not by name, but by metes and bounds, and
then creates the territory so described into a municipal corporation by the name of Storey
county, with large and varied powersamong them that of having a common seal, of holding
and enjoying both real and personal property, either within or without the municipality, and
the same to buy, sell and mortgage, to receive bequests, gifts and donations of property,
either in fee simple or in trust for charitable or other purposes, with power to manage,
sell, lease or otherwise dispose of the same in accordance with the terms of the trust.
23 Nev. 226, 230 (1896) Schweiss v. District Court
pality, and the same to buy, sell and mortgage, to receive bequests, gifts and donations of
property, either in fee simple or in trust for charitable or other purposes, with power to
manage, sell, lease or otherwise dispose of the same in accordance with the terms of the trust.
Section 2 provides that all buildings, lands and property, all rights of property and rights of
action, all moneys, revenues and incomes belonging or appertaining to Storey county,
evidently referring to the county as it now exists, to the city of Virginia or the town of Gold
Hill, shall be vested in Storey county, meaning by the name as now used, the new
municipality.
Section 3, that the new municipality shall succeed to all property rights, all books, records,
etc., of Storey county, Virginia City or Gold Hill, and shall become subject to all liabilities of
those organizations.
Section 4, that Storey county (evidently the municipality) may sue for and recover all
property, etc., belonging to either said county, city or town, and that all existing suits, actions
and proceedings to which "said county" or the city or town is a party, are to be continued by
or against "said county."
Section 7, that all county moneys are to be kept in one fund, to be known as the county
general fund.
Section 10, that the board of commissioners may levy a tax for county purposes, not
exceeding the sum of $3 50 on each $100 valuation of the property therein.
A comparison of this act with the existing laws governing all the other counties in the state
seems to demonstrate that it is in conflict with section 20 of article IV of the constitution,
which forbids local and special laws regulating county business; with section 25 of the same
article, which requires the legislature to establish a system of county governments which shall
be uniform throughout the state.
Clearly, a county is not a municipal corporation. If it were, there would have been no
occasion for this act changing Storey county into a municipality. It is, at the most, only a
quasi corporation, and possesses only such powers and is subjected to only such liabilities as
are specially provided for by law. Mr. Beach, in his work on Public Corporations, states the
distinction between them as follows: "Municipal corporations embrace incorporated
cities, villages and towns, which are full-fledged corporations, with all the powers, duties
and liabilities incident to such a status; while public quasi corporations possess only a
portion of the powers, duties and liabilities of corporations. As instances of the latter class
may be mentioned counties, hundreds, townships, overseers of the poor, town
supervisors, school districts and road districts." {Beach Pub. Corp., sec. 3.)
And again, in section 6, the same author says: "The preceding sections indicate the
essential differences between the municipal and the public quasi corporation.
23 Nev. 226, 231 (1896) Schweiss v. District Court
states the distinction between them as follows: Municipal corporations embrace incorporated
cities, villages and towns, which are full-fledged corporations, with all the powers, duties and
liabilities incident to such a status; while public quasi corporations possess only a portion of
the powers, duties and liabilities of corporations. As instances of the latter class may be
mentioned counties, hundreds, townships, overseers of the poor, town supervisors, school
districts and road districts. (Beach Pub. Corp., sec. 3.)
And again, in section 6, the same author says: The preceding sections indicate the
essential differences between the municipal and the public quasi corporation. The latter may
be defined to be an involuntary political or civil division of the state, created by general laws
to aid in the administration of government. * * * Counties, townships, school districts, road
districts and like public quasi corporations do not usually possess corporate powers under
special charters; but they exist under general laws of the state, which apportion the territory of
the state into political divisions for convenience of government, and require of the people
residing within those divisions the performance of certain public duties as a part of the
machinery of the state, and, in order that they may be able to perform these duties, vests them
with certain corporate powers.
A county is certainly very far from being the complete corporation that is created by the
act in question, with all, and probably more than all, the powers that can be vested in a
municipal corporation. This of itself is sufficient to destroy the uniformity that the
constitution requires to exist in the several county governments.
In Singleton v. Eureka County, 22 Nev. 91, we had occasion to consider this clause of the
constitution at some length, and there concluded that it meant that such governments must, in
all essential particulars, be alike. State v. Boyd, 19 Nev. 43, is to the same effect. But Storey
county, as created into a municipal corporation by this act, is not like the other counties,
either in form or substance, and therefore the act is in conflict with the constitution.
With the law in question in force, it would be an interesting study to determine just what
position Storey county that used to be, the city of Virginia and the town of Gold Hill would
be in.
23 Nev. 226, 232 (1896) Schweiss v.District Court
used to be, the city of Virginia and the town of Gold Hill would be in. While there is no
provision for their disestablishment, there can be little doubt that the framers of the law
intended that they should practically cease to exist. If not totally destroyed, it was certainly
intended that the breath of life should be taken from them. All property, all rights of action,
all revenues and incomes, all books, records, claims, demands, etc., theretofore belonging to
Storey county, are transferred to the new municipality. Without property, without records,
without rights in anything, either in possession or in action, its bones are marrowless, and it
has nothing in common with the living organizations in the other counties.
It is no answer to say that the new municipal corporation has taken its place and has all the
powers, duties and liabilities that the county formerly had, for it is an entirely different system
of government, whereas the constitution requires them to be the same. Nor is this true merely
in matters of form. The municipality has different and additional powers from those
possessed by the counties. No county has common seal; nor can it hold property outside its
boundaries, or even inside, except for a few purposes, nor purchase, sell or mortgage property
generally; nor hold and manage it in trust for any purpose, while the municipality of Storey
county is authorized to hold it for all purposes. Other counties must have at least three funds
for county purposes: a general fund, an indigent fund and a contingent fund (Gen. Stats., sec.
2008), but this municipality is to have but one; other counties can under no circumstances
levy a tax for county purposes of more than $2 upon each $100 of property valuation (Stats.
1895, 22), while the new Storey county can levy $3 50. In fact, were it not that the
municipality has the same name and the same boundaries as Storey county, it would be fully
as difficult to point out wherein the two governments are uniform as that wherein they differ.
In addition, as the act is confined to Storey county, it is both local and special, and as it
unquestionably regulates the business of that county, it is also invalid for that reason.
Writ refused.
____________
23 Nev. 233, 233 (1896) Hayes v. Davis
[No. 1471.]
WILLIAM HAYES, Respondent, v. W. L. DAVIS and L. S. SCOTT, A. TRAVIS, W. C.
GALLAGHER, The Board of County Commissioners of White Pine County, Appellants.
PracticeAppealAuthentication of Statement.A statement of a case on appeal must be settled and
authenticated by the judge or referee hearing the case, or by agreement of the parties, under secs. 3354,
3355 and 3357 of General Statutes; and unless so authenticated thirty days prior to the commencement of a
term of the supreme court, the appellant is not in default for failure to file a transcript by the first day of the
term, though the statement may have been on file with the clerk of the trial court for a longer time, and no
amendments proposed thereto.
IdemAppeal Irregularly Dismissed.An appeal, found to have been irregularly dismissed, will be reinstated
upon motion.
Action by William Hayes against W. L. Davis and others. Appellant moves to restore an
appeal which was dismissed. Motion granted.
The facts appear in the opinion.
R. M. Clarke and Henry Rives, for Appellant.
Thos. Wren, J. Poujade and F. X. Murphy, for Respondent:
I. The statement was never presented to the judge who tried the cause, as required by
either sections 332, 333 or 335 of the practice act. (Gen. Stats., secs. 3354, 3355, 3357.)
II. After filing the notice of appeal in due time, the appellants filed the requisite
undertaking and perfected their appeal. Upon this state of facts on the 2d day of April, 1896,
counsel for appellants, according to his affidavit, directed the clerk of the district court in and
for White Pine county to certify the papers on appeal to the supreme court. The clerk certified
the papers as requested, and the papers were filed with the clerk of this court on the 8th of
April. In the meantime, however, the appeal had been dismissed upon motion of counsel for
respondent.
III. The appeal should not be reinstated. The affidavit of counsel for appellants shows
gross carelessness upon the part of counsel in moving to have the appeal reinstated.
23 Nev. 233, 234 (1896) Hayes v. Davis
By the Court, Bonnifield, J.:
On motion of counsel for respondents, based on the certificate of the clerk of the trial
court, the appeal in this case was dismissed. The clerk's certificate fully complies with the
requirements of section or part 2 of rule 3 of the supreme court, except the fact and time of
the settlement of the statement are not certified. It is certified that the defendant's statement
in said cause was filed on the 3d day of January, 1896; that no proposed amendments thereto
have ever been filed. When no amendments have been filed to a statement on motion for a
new trial, the statement shall be accompanied with the certificate of the clerk of that fact.
(Gen. Stats., sec. 3219.) And such certificate is sufficient authentication of the statement. But
not so in case of a statement simply on appeal. In such case, whether there be any proposed
amendments or not it seems that the judge or referee who tried the case may settle the
statement, and, when settled, shall be signed by him with his certificate that the same has
been allowed and is correct, or when the statement is agreed upon by the parties, they or
their attorneys shall sign the same, with their certificate that it has been agreed upon and is
correct. In either case, when settled or agreed upon, it shall be filed with the clerk. (Secs.
3354, 3355, 3357.)
It seems that statements on appeal must be authenticated by the judge or referee, or the
parties or their attorneys, in the manner provided by statute as above shown, and that it is not
sufficient, in such case, when no amendments have been filed, that the statement be
accompanied with the certificate of the clerk of that fact, as it would be in case of statement
on motion for new trial.
In dismissing the appeal, the court took it to be a fact that the statement was on motion for
new trial, the statement not being before it, and, the clerk's certificate showing that no
amendments had been filed thereto by respondents, no question as to the settlement of the
statement occurred to the court. But, on the motion of appellant to restore the appeal, it
appears that the statement is on appeal, and not on motion for new trial, and, under the
provisions of the statute, it being required that such statement must be signed and
certified as above shown, by the court or referee, or the parties or their attorneys, and it
appearing that the statement has not been thus or otherwise settled, the order dismissing
the appeal was improvidently granted under a mistake as to the facts of the case.
23 Nev. 233, 235 (1896) Hayes v. Davis
being required that such statement must be signed and certified as above shown, by the court
or referee, or the parties or their attorneys, and it appearing that the statement has not been
thus or otherwise settled, the order dismissing the appeal was improvidently granted under a
mistake as to the facts of the case.
Rule 2 of this court provides: In all cases where an appeal has been perfected and the
statement settled (if there be one) thirty days before the commencement of the term, the
transcript of the record shall be filed on or before the first day of such term.
Rule 3. If the transcript of the record be not filed within the time prescribed by rule 2, 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. * * *
It will be observed that only in case the appeal has been perfected, and the statement
settled (if there be one) thirty days before the commencement of the term, may the appeal be
dismissed on the ground that the transcript of the record has not been filed on or before the
first day of such term. The statement not having been settled, we are of opinion that, under
said rules, the appeal should not have been dismissed on the motion made by respondent's
counsel.
It is therefore ordered that the appeal be restored.
____________
23 Nev. 236, 236 (1896) McNamara v. Keating
[No. 1466.]
THOMAS McNAMARA, Jr., and MICHAEL McNAMARA, Surviving Partners of Thomas
McNamara, Jr., and Thomas McNamara, Sr., et al., Respondents, v. R. P. KEATING and
R. PENDERGAST, Appellants.
EstoppelAssignmentReceiving Benefit of Contract.Plaintiffs, at defendant Keating's request, assigned
their claims against certain mining companies to defendant Pendergast, defendant Keating promising to pay
plaintiffs the amount of their assignment upon recovery of judgment. Defendant Keating and one Watson
also assigned claims against the same mining companies to defendant Pendergast, said assignments being
made for the purpose of collecting the same in one suit against each of the said mining companies. Suits
were instituted by the said Pendergast and judgments for the full amounts recovered: Held, that in an action
by plaintiffs against defendants for the amount of their claims recovered, defendants are estopped to deny
the validity of plaintiffs' claims against the said mining companies, and that defendant Keating's request for
the assignment of the claims to Pendergast was sufficient consideration for the promise on his part.
Appeal from the District Court of the State of Nevada, Storey County; C. E. Mack, District
Judge:
Action by Thomas McNamara, Jr., Michael McNamara, et al., against R. P. Keating and
R. Pendergast. Judgment for plaintiffs, and defendants appeal. Affirmed.
The facts sufficiently appear in the opinion.
Clayton Belknap and Robt. M. Clarke, for Appellants:
I. The plaintiffs, nor either of them, ever had a valid claim of any nature against the said
Bailey, Alabama and Humboldt Mining Companies, or either of them. They performed no
work or labor for those companies or either of them, nor did those companies, or either of
them, ever promise for or without a consideration to pay the plaintiffs or either of them any
sum of money whatever for work or labor or other cause or thing.
II. The claim assigned by Thomas McNamara, Sr., to defendant Pendergast was purely
fictitious, and in this claim neither the alleged copartnership, nor the plaintiffs, or either of
them, had any interest whatever; they were not parties to the claim or to the assignment, and
their names nowhere appear in the suits brought by Pendergast upon these assignments or in
the judgments obtained upon them.
23 Nev. 236, 237 (1896) McNamara v. Keating
ments or in the judgments obtained upon them. It is perfectly manifest that plaintiffs had no
interest in these claims or in the money, if any, realized from them. At least, it is evident that
these fictitious claims which arose after the alleged work was performed were not
copartnership claims and cannot be recovered except by the legal representatives of Thomas
McNamara, Sr.
III. There is no consideration to support said promise, if a promise be alleged, on the part
of Keating to pay plaintiffs, or either of them. Keating was not a party to the suit, and no legal
or equitable liability arises out of the suit against Keating in favor of plaintiffs, or either of
them. If there be any obligation on his part, it would be that Keating had received the money
or property which in equity belonged to the plaintiffs, but no such claim is made in the
pleadings, and the action is not based upon any such ground.
Denis H. Kehoe, for Respondents:
I. The claims having been assigned to defendants and having been set up as a cause of
action in the complaint and affidavits for attachment in the cases of Pendergast v. The Bailey
Mining Company, Pendergast v. The Humboldt Mining Company, and Pendergast v. The
Alabama Mining Company, the companies, having been legally served with notice of those
claims, did not deny the validity of the claims and allowed judgment to be entered against the
companies for the claims in full. Keating and Pendergast, having recovered the full amount of
the claims for their own use and benefit by selling the company's property on executions
issued on judgments in which the claims of plaintiffs were included, cannot now, for the first
time, deny the validity of the claims which they promised to pay plaintiffs for when collected,
and, having collected them, must pay plaintiffs the amount of the claims.
II. The making of the assignment of the claims plaintiffs held against the companies to
Pendergast was sufficient consideration to maintain this action against Keating and
Pendergast. The testimony of Thomas McNamara in this case shows that Keating promised to
pay plaintiffs the full amount of their claims at the time of making the assignments to
Pendergast; that he sent for the plaintiffs and brought them to the Savage office for that
purpose, and there and then agreed and promised to pay plaintiffs their portion when
collections were made from the companies on the suits which were afterwards brought in
the name of Pendergast.
23 Nev. 236, 238 (1896) McNamara v. Keating
ments to Pendergast; that he sent for the plaintiffs and brought them to the Savage office for
that purpose, and there and then agreed and promised to pay plaintiffs their portion when
collections were made from the companies on the suits which were afterwards brought in the
name of Pendergast. The testimony also shows that Keating many times afterwards admitted
the debt and promised to pay it as soon as he collected it; the testimony shows that it was
collected in June, 1895. Pendergast made the claims of plaintiffs cause of action in his
complaint against the Bailey, Humboldt and Alabama Mining Companies, and swore to their
correctness in his affidavits for attachment against said companies, thus using the property of
plaintiffs for his own use and benefit. The law will imply a promise on his part to pay
plaintiffs.
By the Court, Bonnifield, J.:
The plaintiffs, by their complaint, allege, in substance and in brief, that a partnership
existed between them and Thomas McNamara, Sr., in certain claims against the Bailey,
Humboldt and Alabama Mining Companies, corporations, in the sum of $300 against each of
said companies, for work and labor done by them in the year 1889, on said companies' mining
claims, located in Storey county, at the request of defendant, R. P. Keating, the then
superintendent of said companies; that said Keating at the same time had a claim for the sum
of $5,700 against each of said companies, for services as such superintendent; that the
plaintiffs and Keating, in August, 1889, assigned all of their said claims to defendant, R.
Pendergast, for the sole purpose of collecting the same in one suit against each of said
companies in the name of said Pendergast; that the claims of the plaintiffs for the sum of
$300, against each of said companies were assigned as aforesaid; that in consideration of such
assignments the defendants promised to pay plaintiffs $900, the full sum of their said claims
as soon as defendants realized and collected the same on judgments to be obtained against
said companies; that suits were brought on all of said claims in the name of said Pendergast,
in the district court of the state of Nevada, in and for Storey county, and judgments recovered
for the full amount thereof against said companies, with interest and costs of the suits; that
the defendants have, within one year prior to the bringing of this action, realized on said
claims and judgments and collected more than the whole of all of said claims assigned as
aforesaid by the plaintiffs and Keating to Pendergast; that no part thereof has been paid
to the plaintiffs; that no part thereof has been paid to the plaintiffs; that on the 16th day
of November, 1S93, said Thomas McNamara, Sr., died, leaving the plaintiffs herein the
sole surviving partners of said partnership, and plaintiffs prayed for judgment against the
defendants for the said sum of $900, with interest and costs.
23 Nev. 236, 239 (1896) McNamara v. Keating
with interest and costs of the suits; that the defendants have, within one year prior to the
bringing of this action, realized on said claims and judgments and collected more than the
whole of all of said claims assigned as aforesaid by the plaintiffs and Keating to Pendergast;
that no part thereof has been paid to the plaintiffs; that on the 16th day of November, 1893,
said Thomas McNamara, Sr., died, leaving the plaintiffs herein the sole surviving partners of
said partnership, and plaintiffs prayed for judgment against the defendants for the said sum of
$900, with interest and costs.
The defendants demurred to the complaint on several specific grounds. The demurrer was
overruled, and the defendants answered, their answers consisting only of denials. The case
was tried by the court sitting with a jury. The jury returned a verdict in favor of the plaintiffs
and against the defendants for the sum of $900. Judgment was entered accordingly, with
interests and costs of suit taxed at $135 40. The defendants appeal from said judgment and
the order of the court denying their motion for new trial.
There is evidence tending to show the following state of facts: That defendant Keating, in
1880, became the superintendent of the Bailey Mining Company, a corporation, the
Humboldt Mining Company, a corporation, and the Alabama Mining Company, a
corporation; that there is a mine known as the Bailey lode or mine, situated in Storey county;
that each of said mining companies owned segregated portions of said lode or mine; that
defendant Keating, as such superintendent, had employed Thomas McNamara, Sr., to do the
assessment work on this lode for said companies for several years, and had McNamara do all
the assessment work for these companies on the Humboldt claim on said lode; that in April or
May, 1889, Keating, as such superintendent, verbally leased to McNamara said mine; that by
the terms of said lease the lessee was to run a tunnel and tap the bottom of a certain shaft,
filled with water, situated on the Humboldt claim, and that the lessee was to have all the ore
he might take out for six months from the date of tapping said shaft; that the plaintiffs,
Thomas McNamara, Jr., and Michael McNamara, by agreement between the three, became
partners with Thomas McNamara, Sr., in said lease, each of the three to have an equal
interest therein; that as such partners they prosecuted work under said lease on said
mine; that during said work they struck some ore or rock, had it assayed; defendant
Keating saw the assay, and sent for McNamara, Sr., and proposed to allow him $900 for
the work that had been done, $300 to be paid by each company, if he would assign to R.
Pendergast a claim for work in the sum of $300 against each of said companies; that
McNamara, Sr., thinking that Keating wanted to break said lease, refused to make the
assignment; that Keating sent for Thomas McNamara, Jr., who went to said defendant's
office, and on inquiring of Keating if he wanted to break the lease, Keating informed him
that they had no lease, that a verbal lease was not good; that McNamara, Jr., reported the
same to McNamara, Sr., and they concluded that they had better take the $900 rather
than get nothing; that Thomas McNamara, Sr., and Jr., returned to the office of defendant
Keating, the superintendent, and that McNamara, Sr., executed the assignments as
requested by Keating, with the knowledge and consent of plaintiffs, he {Keating)
promising to pay therefor the $900 as soon as the same was realized on said claims and
the judgments to be recovered against said several mining companies; that defendant
Keating assigned to defendant R.
23 Nev. 236, 240 (1896) McNamara v. Keating
the three to have an equal interest therein; that as such partners they prosecuted work under
said lease on said mine; that during said work they struck some ore or rock, had it assayed;
defendant Keating saw the assay, and sent for McNamara, Sr., and proposed to allow him
$900 for the work that had been done, $300 to be paid by each company, if he would assign
to R. Pendergast a claim for work in the sum of $300 against each of said companies; that
McNamara, Sr., thinking that Keating wanted to break said lease, refused to make the
assignment; that Keating sent for Thomas McNamara, Jr., who went to said defendant's
office, and on inquiring of Keating if he wanted to break the lease, Keating informed him that
they had no lease, that a verbal lease was not good; that McNamara, Jr., reported the same to
McNamara, Sr., and they concluded that they had better take the $900 rather than get nothing;
that Thomas McNamara, Sr., and Jr., returned to the office of defendant Keating, the
superintendent, and that McNamara, Sr., executed the assignments as requested by Keating,
with the knowledge and consent of plaintiffs, he (Keating) promising to pay therefor the $900
as soon as the same was realized on said claims and the judgments to be recovered against
said several mining companies; that defendant Keating assigned to defendant R. Pendergast a
claim of $5,700 against each of said companies for services rendered as superintendent
thereof; that H. H. Watson assigned to said Pendergast a claim of $500 against each of said
companies for services as secretary thereof, the aggregate amount of the claims so assigned
being $6,500 against each company; that Pendergast brought suit in the district court of the
state of Nevada, in and for Storey county, on these several assigned claims, against each
company, and on the 5th day of December, 1889, recovered a judgment thereon, in each case,
for the sum $6,500; that subsequently, and in 1890, the sheriff of Storey county duly sold the
said several mining claims belonging to said several mining companies on executions issued
on said several judgments, on the bids and for the sum of $5,000, $4,500 and $4,500,
respectively; that the money derived from the sheriff's sales was paid to the sheriff by
defendant Keating; that the several mining claims sold at said sheriff's sales were bought in
the name of Charles Herschfeld, without his knowledge at the time; that he paid nothing
therefor; that Herschfeld assigned the sheriff's certificates of said sales to Joseph Marks,
without consideration; that Joseph Marks received the sheriff's deeds for said mining
claims; that Marks conveyed said mining claims to the Hearst Gold and Silver Mining
Company, a corporation, without consideration; that said Hearst Company sold and
conveyed 2,1S3-1J2 feet of said mining claims to certain of the Comstock mining
companies for $27,293 75, and conveyed to the California Title, Insurance and Trust
Company, a corporation, SS5 feet of said mining claims for an expressed consideration of
$10; that over $21,000 of the amount of said sales to the Comstock mining companies
have been received.
23 Nev. 236, 241 (1896) McNamara v. Keating
were bought in the name of Charles Herschfeld, without his knowledge at the time; that he
paid nothing therefor; that Herschfeld assigned the sheriff's certificates of said sales to Joseph
Marks, without consideration; that Joseph Marks received the sheriff's deeds for said mining
claims; that Marks conveyed said mining claims to the Hearst Gold and Silver Mining
Company, a corporation, without consideration; that said Hearst Company sold and conveyed
2,183-1/2 feet of said mining claims to certain of the Comstock mining companies for
$27,293 75, and conveyed to the California Title, Insurance and Trust Company, a
corporation, 885 feet of said mining claims for an expressed consideration of $10; that over
$21,000 of the amount of said sales to the Comstock mining companies have been received.
There are numerous objections made and points raised by counsel for appellants and urged
by them against the sufficiency of the evidence and the validity of the judgment, among
which are that the plaintiffs, nor either of them, ever had a valid claim of any nature against
the said Bailey, Alabama and Humboldt Companies, or either of them; that they performed
no work or labor for these corporations, or either of them, nor did these companies, or either
of them, ever promise for or without a consideration to pay the plaintiffs, or either of them,
any sum of money whatever for work or labor or other cause or thing, and that these claims
against said companies were purely fictitious.'
While these alleged facts, if true, might have been proper grounds for the said companies
to urge against the validity of these claims in the Pendergast suits, they certainly are not
available to the defendants in this case. Whether these claims against said companies were
valid or not is immaterial. But we discover nothing to impeach their validity, or the good faith
of the plaintiffs, or their deceased partner, with reference thereto. As the evidence tends to
show, they gave up whatever rights or privileges they had under the lease, which they
considered to be and which might have been very valuable, and agreed to take in lieu thereof
the sum of $900 for their work, and assigned these claims to Pendergast, at defendant
Keating's request, on his promise to pay them said sum when he should realize the same on
judgments to be obtained against said companies.
23 Nev. 236, 242 (1896) McNamara v. Keating
ments to be obtained against said companies. Instead of these claims being fraudulent as
against said companies, the record shows that their validity was admitted by said companies,
and the judgments of the district court in said suits affirmed it. Not only this, but the work
done under the lease, on the Humboldt ground, it would seem inured to the benefit of all three
of the companies, as the assessment work did which had been done for a series of years, at the
same place, by Thomas McNamara, Sr., at request of defendant Keating, the superintendent
of said companies.
We can see nothing but a plain business transaction between all the parties concerned in
leasing these claims and in annulling the lease by agreement, the plaintiffs agreeing to take
$900 for the work done, and said companies being made responsible therefor through their
superintendent, and defendant Keating agreeing to pay the same when realized as before
stated.
Counsel for appellants argue that there is no consideration to support said promise, if a
promise be alleged, on the part of Keating, to pay plaintiffs, or either of them. Certainly the
assignment of said claims to Pendergast at the request of Keating is sufficient consideration
for said promise on his part. It appears from Keating's testimony that said assignments were
of benefit and advantage, not only to him but to the said companies. His testimony is to the
effect that one Bell held a fraudulent promissory note or notes against said companies in the
sum of $15,000; that Bell was about to sue thereon; that in order the better to thwart the
unlawful designs of Bell and defeat the collection of his fraudulent notes, he (Keating)
assigned his claim, and procured those other assignments to be made to Pendergast in order
that suits might be brought thereon against each of said companies before Bell brought his
suit; that this was done to protect the stockholders of said companies against Bell's said
fraudulent demand, and that he (Keating) was at the time a stockholder in these companies to
the amount of 30,000 shares, and that he was acting in the matter to protect his own interests
as such stockholder. It clearly appears that the above-named objects and purposes were
accomplished by means of said assigned claims, said judgments and sales of said mines to
said Comstock mining companies, and that more than enough money was received from
said final sales to cover the whole amount of said judgments.
23 Nev. 236, 243 (1896) McNamara v. Keating
ments and sales of said mines to said Comstock mining companies, and that more than
enough money was received from said final sales to cover the whole amount of said
judgments. Defendant Keating in his testimony admits, in effect, that one of the $300 claims
assigned to Pendergast is correct, but claims that it is payable to the estate of McNamara,
deceased, and not to the plaintiffs, as he is advised by his attorney. It appears, however, that
each of the $300 claims grew out of the same transaction and is a part thereof, and that all of
them are based on the same facts and circumstances, and that said plaintiffs, as the surviving
partners of said deceased, are entitled by law to collect whatever is due thereon.
We regard all objections and points raised by appellant's counsel against the plaintiff's
right to recover as being merely technical and without merit.
We are of opinion that the judgment and order appealed from should be affirmed.
It is so ordered.
Bigelow, C. J.: I concur.
Belknap, J., did not participate in the above decision.
____________
23 Nev. 243, 243 (1896) State v. District Court
[No. 1463.]
STATE OF NEVADA, ex rel. WILLIAM THOMPSON, Petitioner, v. SECOND JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, COUNTY OF WASHOE, Hon. A.
E. Cheney, Judge, Respondent.
CertiorariWhen LiesJurisdiction of CourtCosts.Stats. 1869, p. 196, amended by Stats. 1873, p. 101
(Gen. Stats., sec. 582), declares that the district court may regulate the practice in cases appealed thereto in
all respects not provided for by statute, providing that appellant, unless he recover a judgment more
favorable to himself than that appealed from, shall pay the costs of respondent on appeal; but that,
whenever the appellate judge shall be satisfied that appellant had reasonable grounds for his appeal, he may
order costs to be taxed against respondent, or may apportion the same between the parties. Gen. Stats., sec.
3464, provides that the review in certiorari shall not be extended further than to determine whether the
inferior tribunal has regularly pursued its authority: Held, that since the district court has jurisdiction of the
question of costs under the former section, error in allowing any costs not properly taxable against a party
cannot be reviewed on certiorari.
23 Nev. 243, 244 (1896) State v. District Court
Original proceeding. Application for writ of certiorari by William Thompson to the
Second Judicial District Court of the State of Nevada, in and for Washoe county; A. E.
Cheney, District Judge. Writ dismissed.
The facts sufficiently appear in the opinion.
R. M. Clarke and T. V. Julien, for Petitioner.
Curler & Curler, for Respondent:
I. Certiorari will not be allowed to usurp the functions of a writ of error, but will be
restricted to inquires of jurisdiction. (Gen. Stats. 3464; 4 Ency. of Pleading and Practice, 127;
Phillips v. Welch, 12 Nev. 158; Fall v. Commissioners, 6 Nev. 100; Buckley v. Superior
Court, 96 Cal. 119.)
II. The court, respondent herein, had jurisdiction to hear and determine petitioner's
motion. (State ex rel. Quinn v. District Court, 16 Nev. 76; Petty v. County Court, 45 Cal.
245; Dezerille v. Superior Court, 59 Cal. 180.)
III. The court, respondent herein, having had jurisdiction to hear and decide the motion, it
is entirely immaterial, for the purposes of this proceeding, whether its decision is correct or
erroneous. (Phillips v. Welch, 12 Nev. 158; In re Wixom, 12 Nev. 219; State ex rel. Quinn v.
District Court, 16 Nev. 76; Sherer v. Superior Court, 96 Cal. 653; History Co. v. Light, 97
Cal. 56.)
IV. Had the two items of $50 each been stricken from the complaint, without any
qualification, any future action upon them against petitioner would have been barred and the
judgment of the district court would have been $100 more favorable to petitioner than was the
judgment of the justice court, but the items having been stricken out without prejudice, it
does not necessarily follow that petitioner's liability was diminished by the judgment of the
district court.
V. Respondent submits that both in terms and in spirit the statute is as follows: (1) If the
judgment is not reduced on appeal, the appellant loses his own costs and shall pay
respondent's costs. (2) If the judgment appealed from is reduced, the appellant may recover
his costs on appeal and respondent may lose his costs on appeal. (3) That in all cases where
the judge is satisfied from the evidence that the appeal was taken in good faith to promote
justice, the costs may be taxed against respondent or may be apportioned between the
parties.
23 Nev. 243, 245 (1896) State v. District Court
appeal was taken in good faith to promote justice, the costs may be taxed against respondent
or may be apportioned between the parties.
By the Court, Belknap, J.:
Torreyson & Summerfield recovered judgment against William Thompson for $298 25 in
justice's court of Reno township. Thompson appealed to the district court.
Upon the appeal plaintiffs recovered judgment for the sum of $198 25. The district court
apportioned the costs between the parties. Relator claims that the action of the court in the
matter of costs was in excess of its jurisdiction, and at his instance a writ of certiorari has
been issued to review its action.
The section of the statute touching appeals from justice's courts is a follows:
Section 582. All causes appealed to the district court shall be tried anew in said court, and
said court may regulate by rule the practice in such cases in all respects not provided for by
statute; provided, that the appellant shall in no case recover from respondent the cost incurred
on appeal, unless he recover in the district court a judgment more favorable to himself than
the judgment appealed from, but shall, unless he recover in the district court a judgment more
favorable to himself than the judgment appealed from, pay the costs of respondent on appeal;
and if such judgment be a money judgment in favor of appellant, and of sufficient amount to
cover respondent's costs, such costs shall be deducted from said judgment; and in all other
cases respondent shall have judgment against the appellant for the amount of his costs so
incurred; provided, that whenever the judge of the appellate court shall be satisfied from the
evidence that the appellant had reasonable grounds for his appeal, and that such appeal was
taken in good faith for the sole purpose of promoting the ends of justice, such judge may then
order such costs to be taxed against the respondent, or may apportion the costs between the
parties in such manner as will be just. (Stats. 1873, p. 101.)
The statute relating to the writ of certiorari declares that 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."
23 Nev. 243, 246 (1896) State v. District Court
than to determine whether the inferior tribunal, board or officer has regularly pursued the
authority of such tribunal, board or officer. (Gen. Stats., 3464.)
Following this statute, we have no power to determine any other question than the
jurisdictional one. It is plain that, under the provisions of section 582, above quoted, and
under which the court evidently acted, it had jurisdiction of the question of costs, and if it
erred in allowing any costs that were not taxable against the relator, it was not an excess of
jurisdiction, and its action cannot be reviewed upon certiorari. (In re Wixom, 12 Nev. 219;
State v. Dist. Court, 16 Nev. 76.)
The writ, therefore, should be dismissed, and it is so ordered.
____________
23 Nev. 247, 247 (1896)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
JULY TERM, 1896.
____________
23 Nev. 247, 247 (1896) State v. Washoe County Comm'rs
[No. 1464.]
STATE OF NEVADA, ex rel. WILLIAM THOMPSON and H. H. BECK, Petitioners, v.
THE BOARD OF COUNTY COMMISSIONERS OF WASHOE COUNTY,
Respondent.
CertiorariWhen Lies to Board of County Commissioners.The writ of certiorari will only run to a board of
county commissioners as to matters in which they exercise judicial functions.
IdemEmployment of Attorneys by County Commissioners Not Exercise of Judicial Function.The making of
an order by such board, whereby it was ordered that a firm of attorneys be employed in a certain litigation
in which the county was interested, is not the exercise of judicial functions, and such order will not be
reviewed on a writ of certiorari.
IdemDefect of PartiesEffect on Judgment.Where, owing to a defect of parties before the court upon such
a writ, any judgment that might be entered would not be binding upon the real parties in interest, the writ
will be dismissed. (Syllabus by Bigelow, C. J., Bonnifield, J., dissenting.)
Original Proceeding. Application by the State, on the relation of William Thompson and
H. H. Beck, against the Board of County Commissioners of Washoe county, for a writ of
certiorari. Writ dismissed.
R. M. Clarke and T. V. Julien, for Petitioners.
23 Nev. 247, 248 (1896) State v. Washoe County Comm'rs
F. H. Norcross, District Attorney, for Respondent:
I. The respondent, board of county commissioners, in employing attorneys to assist the
district attorney, did not exercise judicial functions. Its action therein was purely executive,
and is not subject to review upon certiorari. The writ of certiorari is only granted when an
inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction of
such tribunal, board or officer. (Gen. Stats. 3458; State ex rel. Mason v. Commrs., 7 Nev.
392; In re Rourke, 13 Nev. 253; Townsend v. Copeland, 56 Cal. 612; People v. Park
Commrs., 97 N. Y. 37; 4 Ency. Pleading and Practice, 80; McCabe v. Commissioners, 46 Ind.
382.)
II. Boards of county commissioners have authority to employ attorneys to protect the
interests of their counties in any litigation affecting them and to bind their counties by
contracts for the payment of such attorneys' fees. (Clarke v. Washoe County, 7 Nev. 75; Ellis
v. Washoe County, 7 Nev. 291; Clarke v. Lyon County, 8 Nev. 181; Smith v. Mayer, 13 Cal.
531; Hornblower v. Duden, 35 Cal. 664.)
By the Court, Bigelow, C. J.:
January 7, 1896, the defendant, by an order duly entered on its minutes, employed
Torreyson & Summerfield, attorneys, to assist the district attorney in certain tax litigation in
which the county was interested, and agreed to pay them therefor the sum of $1,000. The
relators, as taxpayers of said county, have applied to this court for a writ of certiorari to annul
and set aside that order and agreement, on the ground that the board had no authority to make
it.
The first question that arises is upon the respondent's objection that in making the order
the board did not exercise judicial functions. That it is only for the exercise of such functions
that a writ of certiorari will lie is the plain reading of the statute. (Gen. Stats. 3458), and has
been so often decided both by this and nearly all other courts that there is now no question
concerning it. (Esmeralda County v. Third District Court, 18 Nev. 438; In re Rourke, 13 Nev.
253; People v. Board of Education, 54 Cal. 377; People v. Bush, 40 Cal. 345; Spring Valley
Co. v. Bryant, 52 Cal. 138; People v. Park Commissioners, 97 N. Y. 37; People v. Walter, 68
N. Y. 403; People v. Supervisors, 43 Barb. 234; People v. Carr, 23 N. Y. Supp.
23 Nev. 247, 249 (1896) State v. Washoe County Comm'rs
People v. Supervisors, 43 Barb. 234; People v. Carr, 23 N. Y. Supp. 112, and the numerous
authorities cited in 4 Ency. Plead. & Prac. 74, et seq.)
The only question there ever can be is as to whether the board or other tribunal was, in the
given instance, exercising judicial functions, or those that are ministerial, executive or
legislative.
In an early day in California, under a constitution and statutes from which ours were, upon
this matter, substantially copied, it was held that as the supervisors of a county were not
judicial officers or charged with the exercise of judicial duties, it results that a writ of
certiorari cannot properly be directed to them. (People v. Hester, 6 Cal. 649.) Subsequently,
however, this ruling was modified, it being recognized that the board did sometimes act in a
judicial capacity, and it followed that as to such actions the writ was proper. (People v. El
Dorado County, 8 Cal. 61.) Which of these capacities they are acting in, depends upon the
subject matter of their action.
Theoretically, the distinction between these powers is clearly defined. The legislative
branches of the government make laws and ordinances, and establish rules for the future
conduct of men; the executive and ministerial, which includes most of the state and county
officers, execute the laws; and the judiciary determines rights and controversies arising under
them; but in the practical application of these principles, difficulties arise.
The exercise of a judicial function is the doing of something in the nature of the action of a
court. In re Saline County Subscription, 45 Mo. 52, in considering this point the court said:
Judicial action is an ajudication upon the rights of the parties who in general appear or are
brought before the tribunal by notice or process, and upon whose claims some decision or
judgment is rendered.
Courts do not make contracts, and the making of a contract has none of the elements of
judicial action. It follows that the making of this contract for the employment of attorneys in a
lawsuit, was not an exercise of the judicial functions that are vested in the board, and
consequently the writ of certiorari cannot be sustained. It must be remembered in this
connection that whether the board had power and authority to make that contract cuts no
figure in the present consideration.
23 Nev. 247, 250 (1896) State v. Washoe County Comm'rs
bered in this connection that whether the board had power and authority to make that contract
cuts no figure in the present consideration. If it did not, then the contract is invalid and cannot
be enforced, but, as already stated, whether its making was the exercise of a judicial function
depends upon the nature of the act, and not upon the authority of the board. A board would
not have power to enact a law for the punishment of felonies in the county, but if it should do
so, while its action would be a nullity, it would not constitute a judicial action, and it could
not be set aside by writ of certiorari.
Nor does the fact that the board was called upon to exercise judgment and discretion in the
execution of the contract make it a judicial action in the meaning of the statute, for judgment
and discretion must be exercised in almost every action in life, by boards as well as others,
and the application of this principle would make their action subject to review by this writ,
while it is clear that such was not intended to be the case.
In People v. Board of Education, 54 Cal. 377, the board had made a change in the
text-books to be used in the schools of Oakland. Upon certiorari to review their action upon
the ground that they had no authority to make the change, it was objected that the action was
not judicial, and therefore that the writ would not lie. In sustaining this point the court said:
It is conceded that the board exercised its judgment in the action which it took, but this it
was called to do in the exercise of its legislative functions. It is apparent that the exercise of
judgment is not the criterion by which this proceeding must be viewed to determine its
character. To render it the exercise of a judicial function, its judgment must act in a matter
which is judicial in the sense above indicated.
In People v. Carr, 23 N. Y. Supp. 112, the court held: The duties discharged were purely
ministerial, although requiring the exercise of judgment and discretion. In such cases
certiorari will not lie.
And again in People v. Supervisors, 43 Barb. 237: To sustain the writ there has been
quite a tendency to enlarge the sphere of judicial acts, and to regard almost every kind of
official act requiring or involving the exercise of judgment or discretion as a judicial act.
23 Nev. 247, 251 (1896) State v. Washoe County Comm'rs
official act requiring or involving the exercise of judgment or discretion as a judicial act. But
this, I think, is a mistake. There is scarcely an act of any public officer or body, or of persons
clothed with special powers by or under the authority of law, which does not require and
involve more or less discretion. It is simply absurd to call all such acts judicial, and apply to
them the principles which govern the review of the proceedings of courts and of judicial
officers.
So, in the matter of Saline County Subscription, 45 Mo. 55, where the point under
consideration was whether a subscription to the stock of a railroad made by the county court
was a judicial action which could be reviewed by the court, it was said: And all the cases are
inconsistent with the idea that the exercise of a discretionary power, given by law to the
county court of Saline county, if it be given to make a subscription to the stock of a railroad,
can be in any sense a judicial proceeding. A court has no discretion, but must render
judgment according to the facts and the law, while this subscription might have been made or
refused. The judges were bound, it is true, to act with good judgment, judiciously; but
exercising a sound judgment is by no means synonymous with rendering judgment, and
acting judiciously is not always acting judicially.
That the making of a contract by a board of commissioners is not a judicial act is
supported by the reasoning or the direct decision of every well-considered case we have been
able to find. In People v. Carr, supra, already quoted from, a writ had been sued out for the
purpose of reviewing the action of the secretary of state, the comptroller, and the state
reporter, as a contracting board, in making a contract for the publication of the reports of the
court of appeals. In deciding the case the court used this language: The remarks already
made indicate quite clearly that the action of the defendants was in no sense judicial, and
hence not reviewable by certiorari. The defendants were the agents of the state to make a
contract. If they have kept within the power and authority granted them by statute, the
contract is valid; otherwise it is not binding.
In People v. Walter, 68 N. Y. 410, the court of appeals of that state said: It is well settled
that a certiorari does not lie to a ministerial officer, and the fact that a public agent
exercises judgment and discretion in the performance of his duties does not make his
action or powers judicial in their character.
23 Nev. 247, 252 (1896) State v. Washoe County Comm'rs
lie to a ministerial officer, and the fact that a public agent exercises judgment and discretion
in the performance of his duties does not make his action or powers judicial in their character.
The superintendent of the new capitol exercises judgment in the making of contracts, and in
performing his many duties, but he does not exercise judicial powers. People v. Supervisors,
25 Hun, 131, is to the same effect.
We have found no cases where the contrary has been decided, although there are cases,
both in this court and others, where the point was not made by the attorneys, nor noticed by
the court, when, had it been made, it would doubtless have been conclusive. Sadler v. Eureka
County, 15 Nev. 39, comes under this head. Such cases are, of course, not decisions upon the
question, it not being jurisdictional, and cut no figure in determining it. But should we
overrule the objection now that it has been made, it would be, in effect, to decide that the
courts, through the writ of certiorari, have a superintending control over the action of every
officer in the state to the extent, at least, of determining whether they had authority to act, and
of setting aside their action if they did not. It would be a larger task than was intended the
courts should undertake.
Upon another ground the court should refuse to entertain the writ in the present case. The
necessary parties are not before us, and any decision we might render would really settle
nothing. It is a well-known principle that no man's rights can be concluded by a judgment
unless he is a party or privy to the action, and has been given his day in court. Neither
Torreyson & Summerfield nor Washoe county is a party to this proceeding, and the former
certainly would not be, and the latter probably would not be, concluded by the decision
rendered here. Should the decision here be against the validity of the order made by the board,
they could still sue the county upon its agreement, and litigate the whole question over again,
and should it be in their favor, it would not preclude the county from doing the same thing. A
writ of certiorari is not an absolute righta debt of justicebelonging to a petitioner. It only
issues in the discretion of the court, and where such a state of facts as these exist, it should be
refused. (People v. Supervisors, 34 N. Y. 516; People v. Board Commissioners, 97 N. Y. 37;
People v. Walter, 6S N. Y. 403, 407; Black v. Brinkley, 54 Ark.
23 Nev. 247, 253 (1896) State v. Washoe County Comm'rs
People v. Board Commissioners, 97 N. Y. 37; People v. Walter, 68 N. Y. 403, 407; Black v.
Brinkley, 54 Ark. 372; 4 Ency. Plead. & Prac. 183.)
These considerations require the dismissal of the writ and rendered it neither necessary nor
proper to pass upon the question of the powers of the board to make the order complained of.
The writ of dismissed.
Belknap, J.: I concur.
Bonnifield, J., dissenting:
The record in this case shows the following matters: The law firm of Torreyson &
Summerfield submitted to said board a communication in writing, dated January 7, 1896,
which is as follows: * * *
Gentlemen: We agree and undertake to conduct, in connection with the district attorney
of Washoe county, Nevada, all necessary litigation for the collection of the taxes for the year
1895 due or unpaid from the Virginia and Truckee Railroad Company, a corporation, to the
treasurer of Washoe county, Nevada, for the compensation of one thousand dollars ($1,000),
as full payment for such services in the matter of the said litigation. TORREYSON &
SUMMERFIELD.
On the same date the following proceedings were had by the board and entry thereof made
in their minutes: * * * A communication was received from Torreyson & Summerfield in
regard to assisting the district attorney in collecting the taxes due the county for the year
1895, from the Virginia and Truckee R. R. Co., which was read and placed on file. It is
hereby ordered that Torreyson & Summerfield be employed to assist the district attorney, in
all necessary litigation for the collection of the taxes for the year 1895, due and unpaid from
the Virginia and Truckee Railroad Company, a corporation. The said law firm of Torreyson &
Summerfield to be paid the sum of one thousand ($1,000) dollars as fee or compensation for
their said litigation. The said fee to be paid when the said litigation is finally completed.
The question to be determined in this case is: Did the said board of commissioners
exceed their jurisdiction in the premises?
23 Nev. 247, 254 (1896) State v. Washoe County Comm'rs
said board of commissioners exceed their jurisdiction in the premises?
In 1865 the legislature passed An act to create a board of county commissioners in the
several counties of this state, and to define their duties and powers. (Gen. Stats., p. 529.) By
the eighth section of said act (Gen. Stats., sec. 1949) it is provided: The board of
commissioners shall have power and jurisdiction in their respective counties: * * *
EleventhTo cause to be erected and finished a court house, jail and such other public
buildings as may be necessary, and to keep the same in repair; provided, that the contract for
building the court house, jail and other buildings be let out after at least thirty days' previous
public notice * * * to the lowest responsible bidder, who will give good and sufficient
security for the completion of any contract which he may make respecting the same, but no
bid shall be accepted which the board may deem too high.
TwelfthTo control the prosecution or defense of all suits to which the county is a
party.
There is no provision in the above-named statute requiring any notice to be given for the
letting of any contract, or that any contract shall be let to the lowest bidder, whatever the
amount thereof may be, except contracts for building the court house, jail and other public
buildings. But an act supplementary to the above-named act (Gen. Stats., 538) provides: In
letting all contracts, of any and every kind, character and description whatever, where the
contract in the aggregate amounts to $500 or more, the county commissioners shall advertise
such contract or contracts to be let, stating the nature and character thereof; and when plans
and specifications are to constitute part of such contracts, it shall state in the notice where the
same may be seen. * * * All such contracts shall be let to the lowest responsible bidder.
Subject to the provisions of section 23 of the act to which this is supplementary.
It will be observed that said supplementary act provides that: All such contracts shall be
let to the lowest responsible bidder, subject to the provisions of the 23d section of the
original act. What contracts are referred to by the words all such contracts? Evidently to
all contracts of any and every kind, character and description whatever, where the
contract in the aggregate amounts to $500 or more."
23 Nev. 247, 255 (1896) State v. Washoe County Comm'rs
any and every kind, character and description whatever, where the contract in the aggregate
amounts to $500 or more. What is meant by providing that these contracts shall be let
subject to the provisions of the 23d section of the original act? Simply that no member of
the board shall be eligible to put in a bid for, or receive any such contract, or be interested
therein. Said section 23 provides: No member of the board of county commissioners shall be
interested, directly or indirectly, in any property purchased for the use of the county, or in any
purchase or sale of property belonging to the county, nor in any contract made by the county
for the erection of public buildings, the opening or improvements of roads, or the building of
bridges, or for other purposes. And a violation of the above provisions is made a
misdemeanor.
Counsel for respondent contend that it was not the intent of the legislature to include such
contracts as the one under consideration by the passage of the supplementary act; that said
23d section refers to contracts for the purchase and sale of property for the county, for the
erection of public buildings, for the opening and improvement of roads, for the building of
bridges, and for other purposes, and that, under the familiar rule of ejusdem generis,
contracts for other purposes' will be limited to contracts of the same general character of the
preceding classification. That is, that the phrase for other purposes in said 23d section was
not intended to embrace contracts for the employment of attorneys. If their construction of
said 23d section be correct, it follows, as will be seen at once, that, by that section, the
legislature intended, simply, to prohibit the county commissioners from being interested in
the class of contracts specified therein and those of a similar character, and did not intend to
make it unlawful for them to be interested in the contracts for the employment of attorneys, or
to participate in the fees they may bind the county to pay.
Under such construction of the phrase for other purposes, a county commissioner, if he
should be a licensed attorney, would not be prohibited by that section from entering into a
contract with the board to prosecute or defend any and all suits to which the county might be
a party. Certainly such freedom of action on the part of commissioners is not within either
the letter or spirit of that section, nor of any act of the legislature.
23 Nev. 247, 256 (1896) State v. Washoe County Comm'rs
tainly such freedom of action on the part of commissioners is not within either the letter or
spirit of that section, nor of any act of the legislature. Whether or not county commissioners
shall be empowered to employ attorneys to prosecute or defend suits in which the county may
have an interest, or to assist the district attorney therein, is a matter wholly in the discretion of
the legislature. When such power is conferred it must be exercised like every other power, if
at all, in the mode prescribed by the statute. If it be exercised otherwise than, substantially, in
the manner required, the commissioners exceed their jurisdiction. Whether the best or the
worst method, for the employment of attorneys for counties by the several boards, has been
provided or not, is not for the courts or the boards to determine.
It is said by counsel that the construction sought to be placed upon the statute by
petitioners is violative of its spirit and subversive of the general principles controlling the
relations of attorney and client. The construction that the petitioners, or relators, place on the
said supplementary act is, that it embraces contracts for the employment of attorneys when
the contract amounts to $500 or more. Why this construction is violative of the spirit of the
act is not made manifest. In Sadler v. Eureka County, 15 Nev. 39, the object of the legislature
in requiring certain contracts to be let out to the lowest responsible bidder, upon due notice
given, is declared to be for the protection and benefit of the public, and that these provisions
of the law were intended to guard against favoritism, extravagance or corruption in letting
such contracts. Such, evidently, was the intention of the legislature. It would seem, therefore,
that to subserve these purposes, contracts for the employment of attorneys are within the spirit
of the statute as well as its letter, the same as any other class of contracts; and that these
restrictive provisions were intended to apply to all contracts that amount to the sum named.
Why should the public not have the protection and benefit of these provisions of the
supplementary act, and why should favoritism, extravagance and corruption not be guarded
against as well in employing attorneys as in the making of any other class of contracts? If
there be any good reason therefor it has not been disclosed.
23 Nev. 247, 257 (1896) State v. Washoe County Comm'rs
been disclosed. Nor does it appear how or why such construction contended for by relators is
subversive of the general principles controlling the relations of attorney and client. In
whatever mode attorneys may be employed, whether under the system of bids and the letting
of the contract to the lowest responsible bidder, or otherwise, the county is the client and not
the commissioners, and the general principles controlling the relations of attorney and
client remain precisely the same.
In the case at bar the attorneys employed by the board put in a bid to assist the district
attorney in said litigation for a specified fee of $1,000, and on that bid the contract was made.
Certainly there was not subversion of the general principles controlling the relations of
attorney and client, by entering into such contract, nor can we see how the matter, in that
respect, would have been different, if other bids had been made, and the contract awarded to
the lowest responsible bidder. Doubtless if some other competent and responsible attorney, or
firm of attorneys, had bid for the employment and named a less sum as a fee, the latter bid
would have been accepted instead of the former. At least no valid reason can be assigned why
the commissioners should not have done so. But the question in this case is not whether the
one or the other mode of employing attorneys for the county is the better policy, but what is
the mode intended to be adopted by the legislature.
The language of the supplementary act, all contracts of any and every kind, character and
description whatever, where the contract in the aggregate amounts to $500 or more, is
certainly broad and comprehensive enough to include contracts for the employment of
attorneys to prosecute or defend suits in which the county is a party, as well as every other
contract into which the board is authorized to enter when the same amounts to $500 or more.
The language of the statute excludes all exceptions as to contracts of the designated amounts.
It seems that the legislature took unusual care in selecting language with which to express its
will and intent, so that no one might be misled with reference thereto. It is said that,
notwithstanding the language and broad terms used, it was not intended to include contracts
for the employment of attorneys.
23 Nev. 247, 258 (1896) State v. Washoe County Comm'rs
include contracts for the employment of attorneys. In answer it may be said that if it was the
intention to except these contracts, the exception could and would have been made in terms
not to be misunderstood, or the language quoted above would have been restricted so as to
include only certain classes of contracts, by which contracts for the employment of attorneys
would have been excluded. No one will deny that the language used is comprehensive enough
to embrace the class of contracts such as the one under consideration, and that it is plain and
free from ambiguity. Then if the rule of construction, laid down by this court and numerous
other authorities, be adhered to, the conclusion must be reached that contracts for
employment of attorneys are not excepted from the provisions of said supplementary act, but
were intended to be included therein.
Where the language of a statute is plain, its intention must be deduced from such
language, and courts have no right to go beyond it. (State ex rel. Lewis Hess et al. v. The
County Commissioners of Washoe County, 6 Nev. 104.)
The duty of every court in construing a statute is to seek the legislative intent to reach the
object sought to be expressed and accomplished; but in so doing a court is bound by rules; it
cannot go fishing in the minds of its members, or the legislative mind, to reach the desired
end; and the first step is, if possible, to ascertain the intent from the language of a statute, and
when that is clear and unambiguous, then inquiry stops, because the law says it shall stop.
(Virginia & Truckee Railroad Co. v. The Commissioners of Lyon County, 6 Nev. 69.)
A fundamental principle in all construction is that where the language used is plain and
free from ambiguity that must be the guide. We are not permitted to construe that which
requires no construction. (State v. Clarke, 21 Nev. 337.)
Under the provisions of that act every contractor is required to give security for the proper
performance of his contract. Attorneys may, from neglect or want of legal skill, fail to
properly prosecute or defend the suits for which they are employed, and the county suffer loss
thereby. Why the county should not be protected by proper security in such cases, as in all
other classes of contracts provided for by said act, and why it should not receive all the
benefits to be derived from the provisions of that act, and be protected from all the evils
that act attempts to guard against in the one class of contracts, as well as in all others,
we think cannot be shown with any degree of reason.
23 Nev. 247, 259 (1896) State v. Washoe County Comm'rs
cases, as in all other classes of contracts provided for by said act, and why it should not
receive all the benefits to be derived from the provisions of that act, and be protected from all
the evils that act attempts to guard against in the one class of contracts, as well as in all
others, we think cannot be shown with any degree of reason. If not, it would seem to follow
that the legislature did not intend to make any distinction, in these respects, between the
classes of contracts the board might enter into for the county.
If we are in error in our conclusions it can be corrected by the legislature amending said
supplementary act or passing some other act. To do so it will not be necessary to use plainer,
broader and more comprehensive language than is used in the said act to express its intent, for
this perhaps could not be done, but in language in some degree ambiguous and uncertain,
when the real intent may be attempted to be arrived at by statutory construction. But, while
the language of the statute remains as it is, we see but one proper course to pursue, and that is
to adhere to rules set forth in the cases above cited, the language of which is as plain and
unambiguous as the language of the supplementary act itself.
The objection that the writ of certiorari will not lie in this case because the commissioners
in doing the act complained of were not exercising judicial functions, or that said act was not
of a judicial character, I think is not well taken. It is argued that entering into contracts by the
commissioners is not the exercise of judicial functions. But this court has heretofore decided
otherwise, and I see no valid reason why the rule should not be adhered to in this case.
In Sadler v. Eureka County, 15 Nev. 37, the district court on certiorari set aside an order
of the board by which it contracted with A. Boungard for widening and deepening the
foundation to the court house, then about to be built, at a cost not to exceed $500. On
appeal the judgment of the district court was affirmed. Under the supplementary act above
named it will be observed that when any contract amounts to $500 or more, it must be let to
the lowest responsible bidder. In the above-named case the contract was let to Boungard, and
not offered to be let under the provisions of said act of the legislature.
23 Nev. 247, 260 (1896) State v. Washoe County Comm'rs
to Boungard, and not offered to be let under the provisions of said act of the legislature.
Hawley, J., in delivering the opinion of the court, said: It is apparent upon the face of said
order that the commissioners exceeded their jurisdiction in declaring that the cost of said
work should not exceed $500, instead of should not amount to $500. The judgment of the
district court could be sustained on this technical ground. Why? Because the commissioners
in entering into such contract were exercising judicial functions and exceeded their
jurisdiction in letting the contract otherwise than to the lowest responsible bidder. It is argued
that the letting of a contract by the board is an executive act and not the exercise of judicial
functions, or that such an act is not of a judicial character. But in the Sadler case, supra, the
court held to the contrary. It cannot be said with any degree of reason, that the question as to
the character of the board's act in that case was not considered or decided, and that, therefore,
the decision in that case is not in point. For this court has repeatedly held that certiorari will
not lie to review and set aside an act or proceeding of an inferior tribunal, board or officer,
unless the act complained of is of a judicial character, or the doing of the act was in the
exercise of judicial functions. This rule is so well settled by a concurrence of the authorities
that, in proceedings on certiorari, the first question that presents itself to the mind of the
reviewing court is: Is the act complained of an act done in the exercise of judicial functions,
or, in other words, is it of a judicial character? If it be considered that it is not, the court
issuing the writ or reviewing the matter complained of has no legal power to annul it. To hold
that this court did not pass upon the legal character of the act of the commissioners in the
Sadler case, supra, and did not determine that the commissioners in entering into the contract
were exercising judicial functions, it seems to me is imputing to the court gross dereliction of
duty in not passing upon that vital question in the case, and imputing to it a usurpation of
power, in setting aside the contract, more inexcusable than the power assumed by the Eureka
board in entering into the contract.
In Andrews v. Pratt, 44 Cal. 309, 318, the court holds that an order by the board of
supervisors of an allowance of a claim against the county stands as a judgment of a court
of competent jurisdiction.
23 Nev. 247, 261 (1896) State v. Washoe County Comm'rs
an order by the board of supervisors of an allowance of a claim against the county stands as a
judgment of a court of competent jurisdiction. Then, certainly, allowing a claim against the
county is an act of a judicial character. I cannot see why entering into a contract to bind the
county to the payment of a certain claim is not of the same character. It is in effect and
practically the same thing.
Upon other and further grounds I am of opinion the proceedings of the board in question
should be set aside.
It seems to me that the county commissioners have no power to employ attorneys to
prosecute or defend any case at their mere discretion, but only when their judgment
pronounces, after an examination of the facts of the case, that there is a necessity for such
employment to protect the interests of the county; and that, in determining upon the necessity
of such employment, from the consideration of all the pertinent facts tending to enable them
to arrive at a conclusion, such as the nature and importance of the litigation, the amount
involved or the principles at stake, and the ability or lack of ability of the district attorney to
properly manage the litigation, etc., the commissioners exercise judicial functions; and that
the order entered employing attorneys is fatally defective in not stating the ground upon
which it is made. These legal propositions are fully sustained by the case of People v. The
Supervisors of Marin County, 10 Cal. 344, in the opinion of the supreme court delivered by
Field, J. In that case the board of supervisors passed an order requiring a constable to file
another bond, with two or more sureties, within fifteen days. This was done on the
assumption that the board had the power to do so as a mere matter of discretion, under the
provisions of a statute which empowered them to require new bonds of any county or
township officer with additional securities whenever they deemed the same necessary. The
court held that the exercise of the power to require new bonds was not left to the arbitrary
discretion of the supervisors, but that their action was to be governed by a consideration of
the form of the original bond and the responsibility of the obligors, and that in determining
upon the sufficiency of the bond they were exercising powers of a judicial character, and that
the order made was fatally defective in not stating the ground upon which it was based.
23 Nev. 247, 262 (1896) State v. Washoe County Comm'rs
order made was fatally defective in not stating the ground upon which it was based.
Upon the grounds and authorities above cited, and the foregoing reasons, I cannot concur
in the decision in the case at bar, and therefore respectfully dissent.
____________
23 Nev. 262, 262 (1896) State v. Lincoln County Comm'rs
[No. 1468.]
STATE OF NEVADA, ex rel. SAMUEL DAVIS, Appellant, v. THE BOARD OF COUNTY
COMMISSIONERS OF LINCOLN COUNTY, Respondent.
Statute of LimitationsWhen Will Begin to Run.The act of February 17, 1873 (Stats. 1873, p. 54), sec. 8,
provided for the collection annually, until payment of certain county bonds, of a special tax to be applied to
payment of the interest on the bonds. The act of January 18, 1877 (Stats. 1877, p. 46), provided that if such
interest fund should be exhausted before all the interest was paid, the coupons could be presented to the
county treasurer, and a certificate of such presentation indorsed on them, after which they should be paid as
money came into the fund, in the order in which they had been presented: Held, that where coupons were
presented, and presentation indorsed thereon, the statute would not commence to run against an action to
compel levy and collection of the tax for payment till money came into the fund applicable to such
payment.
Appeal from the District Court of the State of Nevada, Lincoln county; G. F. Talbot,
District Judge:
Application of Samuel Davis for mandamus to the Board of County Commissioners of
Lincoln county. Application denied, and petitioner appeals. Reversed.
Petition for writ of mandate to compel the defendants to levy a tax for the payment of
interest upon the bonded indebtedness of Lincoln county, created by the act of February 17,
1873. (Stats. 1873, 54.) Section 8 of that act provides as follows: 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 to be issued shall be fully provided for, as hereinafter
provided, to be levied and collected at the same time and in the same manner as other
revenues of said county, a special tax to be called the interest tax, of 45 cents on each $100 of
taxable property of said county, which tax shall be collected in United States gold and silver
coin, and paid over to the county treasurer.
23 Nev. 262, 263 (1896) State v. Lincoln County Comm'rs
lected in United States gold and silver coin, and paid over to the county treasurer. The fund
derived from this tax shall be applied only to the payment of the interest accruing upon said
bonds as herein provided. By a subsequent amendment (Stats. 1877, 46), it was further
provided that if the interest fund should be exhausted before all the interest was paid, the
coupons could be presented to the county treasurer and a certificate of such presentation
endorsed upon them, after which they were to be paid as money came into the fund, in the
order of their presentation. The interest coupons of the petitioner, upon which the proceeding
was founded, became due from 1880 to 1883, and were presented and the presentation
certified to in accordance with the above statute. The tax has not been levied since 1885. The
defense was the statute of limitations. The application for the writ was denied, and the
petitioner appeals.
Geo. S. Sawyer and Freeman & Bates, for Appellant:
I. The question as to whether the statute of limitations applied to these bonds and coupons
(bonds of Lincoln county) was expressly decided by the supreme court of the United States in
the case of Lincoln County v. Luning, 133 U.S. 532.
II. The trial judge admits the decision of the supreme court of the United States to be as
stated, but he seems to think the supreme court of the United States did not properly consider
that case, and that if it had been properly considered by them, they would have allowed the
plea of the statute of limitations, and he draws this conclusion from his construction of the
decision in the case of Freehill v. Chamberlain, 65 Cal. 603.
III. In this, and in subsequent cases, the supreme court of the state of California held that
the statute of limitations would begin to run as soon as the money was in the treasury of the
city of Sacramento applicable to the payment of coupons, but that a coupon holder had the
right to wait until the city levied and collected taxes, and that no duty was imposed upon him
to enforce their levy by writ of mandate. While the city of Sacramento could not be sued in a
direct action, any coupon holder had the same right by mandate to compel the levy of a tax at
any time after his coupons became due, as the holder of a Lincoln county coupon would
have to compel the levy of the tax in this case after his coupon became due.
23 Nev. 262, 264 (1896) State v. Lincoln County Comm'rs
became due, as the holder of a Lincoln county coupon would have to compel the levy of the
tax in this case after his coupon became due.
Robt. M. Beatty, Attorney-General, and T. J. Osborne, District Attorney, for Respondent:
I. A county warrant payable out of any money in the treasury appropriated for county
expenditures is a written acknowledgment of indebtedness, and, if not paid when presented,
may be sued on by the legal holder, although there is no money in the treasury. (15 Am. and
Eng. Ency. 1219, note 1, citing Clark v. Des Moines, 10 Iowa, 199; Bank v. Franklin Co., 65
Mo. 105; Terry v. Milwaukee, 15 Wis. 490; 10 Wis. 44, 76, 63; 24 Wis. 382; 19 Iowa, 450;
67 Iowa, 697; 11 Barb. 117; Lyall v. Saper Co., 6 McLean (U. S.) 446.)
II. But it can hardly be questioned that the right to sue accrued at maturity. The holders of
nearly all the Lincoln county bonds deemed it necessary or expedient to bring suit, and after a
contest they obtained judgments without the money being in the treasury to meet their
obligations. A civil action in the state can only be commenced within the period prescribed by
the statute after the cause of action shall have accrued. (Gen. Stats. 3629.)
III. It is a matter of regret that the cases of Luning and others against Lincoln county were
not more carefully considered in the circuit and supreme courts of the United States. They
both seem to have overlooked the fact that Sacramento could not be sued on its bonds, and
that no cause of action ran in favor of the holder. Judge Sabin said in his decision: I should
have little hesitancy in holding the coupons barred, did I not consider them, under the
authorities above cited (the cases in 17 and 65 Cal.), withdrawn from the operation of the
statute. The opinion of Justice Brewer, whose abilities as a jurist are of a high order,
followed in the same strain, and was based on the same authorities, and, paradoxical as it may
seem, the conclusion cannot be avoided that these courts held that the statute did not run
against certain coupons while suit could be brought, and gave judgment accordingly, because
the supreme court of California had decided that bonds did not outlaw while suit could not
be maintained on them.
23 Nev. 262, 265 (1896) State v. Lincoln County Comm'rs
suit could not be maintained on them. The distinction is a broad one, but apparently was
overlooked by inadvertence in the Luning decisions, which were based partly on Freehill v.
Chamberlain. These California cases are cited and affirmed in Sawyer v. Colgan, 36 Pac.
583, but the court there still bases its opinion on facts and reasons which do not exist here.
The bonds were to be paid when a surplus came into the treasury, and this contingency did
not happen until 1890. The court said: Prior to that time the petitioner never could have
maintained a mandate for the payment of his coupons, and, this being so, of course the statute
of limitations is no bar to the proceedings. * * * He could not sue the state because there
never was any act authorizing him to sue.
IV. If the time has expired for the institution of suit on these bonds, the right of
mandamus is barred beyond question, but there are further reasons for holding that this
proceeding is too late. The writ of mandate to enforce collection of a judgment against a
municipal corporation is in the nature of a legal equivalent to the statutory execution, and the
right to prosecute it for such purpose is limited to the same period of time within which
execution may be sued out on a judgment against an individual. (15 Am. & Eng. Ency. 1314;
U. S. v. Oswego Tp., 28 Fed. 55.)
V. The board of county commissioners has not levied or collected any tax for the payment
of these bonds or interest during the last eleven years, and though the petitioner did not have a
judgment, he was entitled to one, and without it he could have mandamused the board equally
as well from the time of their first failure to levy the tax, and there seems to be no good
reason why his right to the writ should not be barred in the same length of time it would have
been if he had held a judgment.
By the Court, Bigelow, C. J.:
So long as the right of action upon the coupons upon which this application is founded is
not barred, the petitioner is entitled to the writ of mandate applied for. By the act of 1877 they
were to be paid as fast as the annual levy of 45 cents on each $100 of property in the county
would produce sufficient money therefor.
23 Nev. 262, 266 (1896) State v. Lincoln County Comm'rs
money therefor. How soon that would be would, of course, depend upon the amount of
property in the county, and the amount of coupons that might be presented under the act, and
the order of their presentation. They might be paid in one year and they might not all be paid
in twenty years. The creditor accepted this proposition when he presented his coupons and
had their presentation certified by the treasurer. This was in the nature of an agreement for an
extension of time for their payment. The creditor agreed to wait, no matter how long it might
take, for payment under that arrangement, and he has waited accordingly. 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.
This is in accordance with the view taken by the supreme court of the United States, upon
coupons in all respects identical with those involved here, in the case of Lincoln Co. v.
Luning, 133 U. S. 529. We quote from that decision as follows: The coupons, which by the
general limitation law would have been barred, were presented, as they fell due, to the
treasurer for payment, and payment demanded and refused, because the interest fund was
exhausted. Thereupon the treasurer registered them as presented, in accordance with the act of
1877, and from the time of their registration to the commencement of this suit there was no
money in the treasury applicable to their payment. This act, providing for registration and for
payment in a particular order, was a new provision for the payment of these bonds, which was
accepted by the creditor, and created a new right upon which he might rely. It provided, as it
were, a special trust fund, to which the coupon holder might, in the order of registration, look
for payment, and for payment through which he might safely wait. It amounted to a promise
on the part of the county to pay such coupons as were registered, as fast as money came
into the interest fund; and such promise was by the creditor accepted; and when payment
is provided for out of a particular fund, to be created by the act of the debtor, he cannot
plead the statute of limitations until he shows that that fund has been provided."
23 Nev. 262, 267 (1896) State v. Lincoln County Comm'rs
were registered, as fast as money came into the interest fund; and such promise was by the
creditor accepted; and when payment is provided for out of a particular fund, to be created by
the act of the debtor, he cannot plead the statute of limitations until he shows that that fund
has been provided.
That this has become the settled law applicable to such cases is further shown by the
decision of Sawyer v. Colgan, 102 Cal. 283, 292, where, in the course of its opinion, the court
remarked: 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. See, also, 1 Wood, Lim., 2d ed.,
363; Underhill v. Sonora, 17 Cal. 172; Freehill v. Chamberlain, 65 Cal. 603.
Judgment reversed and cause remanded for further proceedings in accordance with this
opinion.
____________
23 Nev. 267, 267 (1896) Wilson v. Wilson
[No. 1467.]
DAVID WILSON, Respondent, v. WILLIAM WILSON,
Appellant.
EvidenceConflictImplied Findings.Where the evidence is conflicting and there is substantial testimony in
support of the contention of the prevailing party, in the absence of express findings, the law implies
findings in favor of the judgment.
JudgmentMistakePresumption of Findings.In an action to reform a deed for mutual mistake, the existence
of which is denied by defendant, it was the duty of the lower court to determine which contention was
correct; and, by giving judgment in favor of plaintiff, the presumption is that the issue was implicitly found
in his favor.
LachesStatute of LimitationsConfidential Relations.Failure of a grantee for seven years to bring suit for
the correction of a deed from which part of the land intended to be conveyed was, by mutual mistake,
omitted, does not show laches, where relations of mutual trust and confidence existed between the grantor
and grantee, and the grantee commenced suit as soon as he discovered the mistake.
RecordsNotice to Whom.The statute of this state concerning records (Gen. Stats. 2594) is not intended to
impart notice other than to subsequent purchasers and incumbrancers, and the record is not notice of
anything not contained in the deed.
23 Nev. 267, 268 (1896) Wilson v. Wilson
Appeal from the District Court of the State of Nevada, Esmeralda county; C. E. Mack,
District Judge:
Action by David Wilson against William Wilson. From a judgment for plaintiff, and an
order denying a new trial, defendant appeals. Affirmed.
The facts sufficiently appear in the opinion.
W. E. F. Deal, for Appellant:
I. It is well established that a court of equity will never decree the specific performance of
an agreement unless the plaintiff has no adequate remedy at law, and unless the agreement
which it is sought to enforce is clearly and positively proven, and unless the plaintiff has been
without fault on his part either in the first instance, or without laches thereafter, and unless
the mistake was mutual.
II. It is not claimed here that the mistake was a mutual one, and the reason given for the
acceptance of the deed as executed by plaintiff is that there existed between plaintiff and
defendant a confidence consistent with their fraternal relation, and that on account thereof and
of plaintiff's belief as to the competency of defendant to make and execute a proper deed
passing defendant's title to said property to plaintiff, plaintiff was induced thereby not to
examine and did not examine said deed to ascertain if it conformed to the agreement. This
excuse is totally insufficient; no fraud or misrepresentation of any kind on the part of
defendant is claimed.
III. Because a confidence existed between the parties consistent with their fraternal
relation, and because plaintiff believed defendant competent to draw a deed, is no excuse for
plaintiff's failure to examine it.
IV. The deed was dated November 28, 1876. It was acknowledged on March 20, 1877.
Whether the deed was delivered to plaintiff or not prior to the time it was recorded, he
certainly had constructive notice of its contents from the time of its record. In 1884 or 1885
plaintiff, according to his own testimony, had possession of the deed, and thus had additional
actual means of knowledge of its contents. This was ten years before the suit was brought.
The fact that it would take plaintiff some time to read the deed is no excuse for his failure
to do so.
23 Nev. 267, 269 (1896) Wilson v. Wilson
would take plaintiff some time to read the deed is no excuse for his failure to do so. If it was
too much trouble for him to read it to himself, he could have others read it for him, as he did
in 1893. The circumstance that he all along supposed that the deed contained what he thought
it did does not justify or excuse his failure to ascertain the actual fact; nor does the confidence
which one man has in another, and which leads him to accept a document upon the
supposition that it contained what it ought to contain, justify him in remaining idle, and in
resting upon the supposition that it is as he supposed it was for sixteen or seventeen years
afterwards.
V. To reform a deed on the grounds of mistake, the evidence must be clear and
convincing, making out the case to the entire satisfaction of the court, and not loose,
equivocal or contradictory, leaving the mistake open to doubt. (Loomis v. Lazzarrovich, 55
Cal. 52; Pomeroy's Equity Jurisprudence, sec. 859, vol. 2, p. 325.)
VI. The law is well settled that, where the question of laches is in issue, plaintiff is
chargeable with such knowledge as he might have obtained upon inquiry, provided the facts
already known by him were such as to put upon a man of ordinary intelligence the duty of
inquiry. The duty of inquiry was all the more peremptory in this case, from the fact that the
property itself was of a uncertain character, and was liable, as in most mining property, to
suddenly develop an enormous increase of value. (Johnson v. Standard M. Co., 148 U. S.
360; Speidel v. Henrici, 120 U. S. 377.)
VII. In order to warrant a reformation of a deed for mistake, it must be a mistake common
to both parties, or through the mistake of the plaintiff, accompanied by the fraud, knowledge
and procurement of the defendant. (Pomeroy's Equity Jurisp., sec. 870; Ranney v. McMullen,
5 Abb. N. C. (N. Y.) 264; Lewis v. Lewis, 5 Or. 169; 26 Wend. 169; Stephens v. Murton, 6
Or. 193; Dimon v. Providence R. Co., 5 R. I. 130; Lamb v. Harris, 8 Ga. 546; Haddock v.
Williams, 10 Vt. 570.)
VIII. The statute of limitations provides that "an action for relief on the ground of fraud or
mistake shall be brought within three years after the discovery of the facts constituting the
fraud or mistake."
23 Nev. 267, 270 (1896) Wilson v. Wilson
ing the fraud or mistake. The cause of action in this case accrued at the time of the execution
of this deed. As the testimony does not show that he did not have knowledge of all the facts at
that time, the respondent has been guilty of such laches in commencing this action that he
cannot now be heard to complain.
IX. The consequence of an actual discovery of a mistake will be imputed to a person who
might, by the exercise of reasonable diligence, have made the discovery. (Parker v. Kuhn, 21
Neb. 413; Penobscot v. Mayo, 67 Me. 470; Boyd v. Blankman, 29 Cal. 19; Gillet v. Wiley,
126 Ill. 310; Lane v. Lane, 87 Ga. 268; Kuhns v. Gates, 92 Ind. 70; Foster v. Mansfield, 146
U. S. 99; Wood v. Carpenter, 101 U. S. 135; Hardt v. Heidweyder, 152 U. S. 558.)
P. M. Bowler, Jr., for Respondent:
I. Plaintiff is not, in any case of a civil nature, required to prove his case beyond a
reasonable doubt. Satisfactory proof, proof which satisfies the mind, is sufficient. It is the
invariable rule that, where there is a conflict of evidence, the decision of the trial court will
not be disturbed.
II. Plaintiff was not guilty of laches; his claim is not stale. For the purpose of invoking the
statute of limitations, or the doctrine of laches or guilty knowledge, there must be a
concurrence of condition before one can be charged, to wit: (1) The means of knowledge
must exist. (2) The circumstances attending the transaction must be such as to excite the
inquiry of a man of ordinary prudence. Nothing short of the presence of those conditions will
constitute notice or knowledge. (Wade on Notice, secs. 10, 11, 13; Moore v. Boyd, 74 Dal.
171; Hecht v. Slaney, 72 Cal. 363; Latilatti v. Orena, 91 Cal. 577.)
III. The mistake alleged is the substantive cause of action; upon its occurrence the cause
of action arises, but the cause of action cannot be deemed to accrue until discovery of the
mistake. The statute will not be deemed to commence running until such time as a discovery
of the mistake is made. This in order that innocent parties may not suffer whilst in excusable
ignorance of their rights; hence our statute excepts them from the limitation prescribed until a
discovery of the mistake.
23 Nev. 267, 271 (1896) Wilson v. Wilson
discovery of the mistake. (Gen. Stats. 3644; Lang Syne M. Co. v. Ross, 20 Nev. 204; Ward v.
Watterman, 85 Cal. 489.)
IV. The question in asserting a right may be materially affected by reference to the
relation which subsists between the parties, as, for instance, a transaction between brothers.
Considering their fraternal relation, the agreement of sale and purchase, the execution and
payment of the note, and there was nothing, even to the slightest circumstance attending the
whole transaction, to excite the inquiry of plaintiff to scrutinize the deed for the purpose of
determining if the instrument was in proper form and embraced the interest of defendant
agreed and intended to be conveyed, or to excite his inquiry to any extent whatever.
V. Counsel seem to rely upon the fact alleged, of the recordation of the deeds, as if the
record thereof constituted notice or knowledge of its contents. The evident intent and purpose
of the recordation acts, registry laws, is to furnish the best and most accessible evidence of
title to real estate, to the end that those desiring to purchase may be fully advised of
instruments of prior date affecting the subject of the contemplated purchase. The record of the
deed, which by this suit is sought to be reformed, could not and cannot be held to convey by
construction, or otherwise, any notice or information to plaintiff.
By the Court, Belknap, J.:
This is a suit for the purpose of correcting a mistake in a deed.
The evidence upon the part of plaintiff tended to show that in the month of November,
1876, defendant agreed to sell his entire interest in the Wilson mining district, in this state,
consisting of mines, milling property, water rights and wood lands, for the sum of $5,000.
Plaintiff agreed to purchase the same, and in the course of time a deed was executed by the
defendant. After the execution of the deed defendant declared in the presence of disinterested
persons that he had sold his entire interest in the district, and shortly thereafter left the locality
and remained away seven years or more. Upon his return he leased from the plaintiff a
portion of the property omitted in the deed of conveyance.
23 Nev. 267, 272 (1896) Wilson v. Wilson
Afterwards others leased a portion of the same mining property omitted in the deed. A
controversy arose, resulting in a lawsuit between the lessees and defendant concerning the
ownership of ores extracted. It was then for the first time ascertained that defendant claimed
to be owner by location of the property. It was also discovered that the deed made no mention
of the omitted property. A few months thereafter the present suit was commenced.
It was also shown that the omitted property consisted of unpatented mining claims, which,
in default of the performance of annual work, were subject to location. Plaintiff has kept up
this work. The deed was in the handwriting of defendant. A memorandum containing a list of
the property of the defendant in the district, in which was included the omitted property, was
introduced. The evidence upon the part of defendant tended to contradict some of these facts.
A decree awarding plaintiff the relief prayed for was entered by the district court.
A motion for new trial was made and denied, and defendant has appealed. One of the
grounds of motion is insufficiency of the evidence to support the judgment.
The evidence was conflicting, but upon all material matters there was substantial
testimony in support of the contention of the prevailing party. No express findings were
made. In their absence the law implies findings in favor of the judgment.
Another point is that the mistake was not a mutual mistake. It must be conceded that a
mistake must be mutual to come in the cognizance of a court of equity.
In Botsford v. McLean, 45 Barb. 478, this question was considered. The court said: So far
as mistake constitutes the ground of jurisdiction in the courts of equity to give relief, it is, I
think, quite well settled that the contract will be reformed in all cases of clear mistake, or, as
some of the cases say, of mutual mistake. A little confusion and misconception, I think, has
crept into the cases from the inexact use of the word mutual,' as applied by way of
description or classification of the kind of mistakes which courts of equity would reform.
According to the real significance of the word 'mutual' in such connection, and the ordinary
acception and understanding of the term, mutual mistake would mean a mistake
reciprocal and common to both parties, when each alike labored under the same
misconception in respect to the terms of the written instrument.
23 Nev. 267, 273 (1896) Wilson v. Wilson
mutual' in such connection, and the ordinary acception and understanding of the term,
mutual mistake would mean a mistake reciprocal and common to both parties, when each
alike labored under the same misconception in respect to the terms of the written instrument.
* * * When parties have entered into a written contract it must be presumed to express their
common intentions and to speak their actual agreement. But if it be clearly shown that such is
not the case, and that such written contract is untrue, and misrepresents or misstates their real
agreement and intentions as made and understood by both parties, in some essential
particular, then such contract is a mistaken one, and such mistake may be corected [corrected]
in a court of equity, in respect to such particular error.
In cases like the present, where one side claims that a mistake exists and the other denies
it, it was the duty of the court to determine which contention was correct, and, by giving
judgment in favor of plaintiff, the presumption is that the issue was implicitly found in his
favor.
Laches and the statute of limitations are interposed as a defense to the suit. The parties
were brothers. Their relations were of mutual trust and confidence. Plaintiff, up to the time
that he learned that the defendant had relocated the Midas mine and of the omission in the
deed, had implicit confidence in him. Nothing had occurred to interrupt these relations or
excite distrust or suspicion until this time, and the suit having been commenced shortly after
the discovery of the omission in the deed he is not chargeable with laches.
The deed was recorded March 20, 1877. It is said that the record was notice to the plaintiff
of its contents. It may be observed that the record is not notice of anything not contained in
the deed. We are satisfied, however, that the statute of this state concerning records (Gen.
Stats. 2594) is not intended to impart notice other than to subsequent purchasers and
mortgagees. (McCabe v. Grey, 20 Cal. 516.)
Judgment affirmed.
Bonnifield, J.: I concur.
____________
23 Nev. 274, 274 (1896) State v. Meyers
[No. 1474.]
STATE OF NEVADA, Respondent, v. GEORGE H.
MEYERS, Appellant.
TaxationBoard of EqualizationPersonal PropertyJurisdiction.Under Stats. 1893, p. 47, amending the
revenue law, and authorizing the board of equalization to equalize the assessed valuation of personal
property, it is not necessary that a complaint should be made to give the board jurisdiction of the subject.
IdemAssessment RollDuty of AssessorPresumption.Under the provisions of section 17 and 19 of the
amended revenue law (Stats. 1893, pp. 45, 46), it is the duty of the assessor, on or before the first Monday
of September of each year, to complete the assessment roll, which must contain a list of all the property in
the county, real and personal, subject to taxation. In the absence of a showing to the contrary, it will be
presumed that the assessor obeyed the law, in this respect, and that the property in question was properly
listed upon the assessment roll.
IdemAll Property to Be Equalized.Under section 23 of the revenue law, as amended (Stats. 1893, p. 47),
which provides that the board of equalization shall have power to determine the valuation of any property
assessed, the board has power and jurisdiction to equalize all property, without qualification or condition.
Idem-Uniform and Equal ValuationTrue Cash ValueInsufficient Showing.An agreed statement that the
assessor made a uniform and equal valuation of the kind, character, and species of merchandise to which
defendant's belonged, does not show that the valuation of defendant's property, as made by the assessor,
was uniform with other kinds of personal property on the assessment roll, or that it was not equalized by
the board at its true cash value, and is, therefore, insufficient to show that the raised valuation made by the
board was unjust.
Appeal from the District Court of the State of Nevada, Ormsby county; C. E. Mack,
District Judge:
Action by the State against George H. Meyers for the tax upon the difference between the
assessor's valuation and the valuation fixed by the board of equalization on defendant's stock
of merchandise. From a judgment in favor of plaintiff, and an order denying a new trial,
defendant appeals. Affirmed.
The facts sufficiently appear in the opinion.
Torreyson & Summerfield, for Appellant:
I. The presumption is at all times that the assessor has performed his duty. He is required
to exercise his best judgment in determining the value of property to be assessed, and the
presumption is that official duty has been performed.
23 Nev. 274, 275 (1896) State v. Meyers
and the presumption is that official duty has been performed. (Ballerino v. Mason, 83 Cal.
449; 57 Cal. 614.)
II. The political code of California, sec. 3673, gives the board of supervisors, after giving
notice, power to increase or lower any assessment contained therein. But before this provision
of the code was adopted, the board of supervisors or equalization had no power to increase
the assessed value of property without a complaint either oral or written being made. These
cases have been followed by the supreme court of this state under a similar provision in our
revenue law. (Allison R. M. Co. v. Nevada County, 104 Cal. 161; People v. Reynolds, 28 Cal.
111; People v. Flint, 39 Cal. 670; People v. Goldtree, 44 Cal. 323; Duffy v. Moran, 12 Nev.
94; State v. Washoe County, 14 Nev. 142; State v. C. P. R. R. Co., 21 Nev. 176; Stats. 1893,
p. 47.)
III. The board of supervisors can equalize assessments, but they have no power to raise the
assessment of personal property beyond the amount returned by the assessor. (McConkey v.
Smith, 73 Ill. 314; Darling v. Given, 50 Ill. 428.)
IV. The board of equalization had no right or authority or power to raise or lower the
assessed value of appellant's personal property without a complaint being made to said board,
either oral or in writing. And, furthermore, it had no right to equalize any property except
such as by law they are authorized to equalize. It had no authority to equalize the personal
property of defendant, for the reason that, under the law, said personal property should not
have appeared upon the assessment roll when the same was before the board of equalization
as the law requires, and the same should not have appeared upon said assessment roll until the
same had been returned to the auditor. In other words, where a person does not own real
estate within the county, and the assessor collects his taxes upon the personal property, said
personal property should not, under the law, appear upon the assessment roll until after said
roll has been delivered to the auditor by the clerk of the board of equalization, and the auditor
then places upon the assessment roll all the personal property the taxes upon which have been
paid. The board of equalization has nothing to do with personal property where the amount
of the taxes has been paid by the individual.
23 Nev. 274, 276 (1896) State v. Meyers
the amount of the taxes has been paid by the individual. (Stats. 1891, 160.)
V. The assessor having made a uniform assessment upon this particular kind and character
of property within Ormsby county, Nevada, the board had no right to raise any particular
individual or individuals without raising every other individual who had or owned similar
kinds of property.
A. J. McGowan, District Attorney, and Robt. M. Beatty, Attorney-General, for Respondent:
I. Stats. 1893, p. 47, sec. 8, declare in positive terms that the county board of equalization
shall have power to determine the value of any property assessed, whether said valuation was
fixed by the assessor or owner thereof. If this is true, then appellant has no right to refuse to
pay the additional sum which resulted from the board's raising the valuation of his property.
By the Court, Belknap, J.:
Upon August 29, 1895, appellant, owning no real estate in Ormsby county, paid the taxes
assessed against him for personal property, amounting to the sum of $264 75. Afterwards the
board of equalization raised the assessed valuation of his stock of merchandise from $8,000
(upon which figure he had paid the tax) to $12,000. Judgment was entered against him in the
district court for the tax upon the difference between the assessor's valuation and the
valuation fixed by the board of equalization, and for costs, etc. From the judgment and an
order refusing a new trial defendant appeals.
The first objection interposed is that no complaint was made to the board touching the
assessment. The statute in this regard was amended at the session of 1893 (Stats. 1893, p. 47),
and, as amended, it is not necessary that a complaint should be made to give the board of
equalization jurisdiction of the subject.
2. It is objected that the board had no jurisdiction to equalize defendant's taxes, for the
reason that his property was not properly listed upon the assessment roll. This conclusion, it
is claimed, results from the construction of the provisions of section 6S of the revenue law,
by which the auditor is required to enter upon the assessment roll upon its receipt by him,
after the final adjournment of the board of equalization, all the original schedules of
personal property made by the assessor.
23 Nev. 274, 277 (1896) State v. Meyers
provisions of section 68 of the revenue law, by which the auditor is required to enter upon the
assessment roll upon its receipt by him, after the final adjournment of the board of
equalization, all the original schedules of personal property made by the assessor. Under the
provisions of sections 17 and 19 of the amended revenue law it is made the duty of the
assessor, on or before the first Monday in September of each year, to complete the assessment
roll, which must contain a list of all the property in the county subject to taxation, which list
shall be verified by his affidavit. This requirement of the statute is a sufficient answer, of
itself, to the contention, and we must assume, in the absence of a showing to the contrary, that
the assessor obeyed the law and that the property was properly listed upon the assessment
roll. But, aside from these provisions, other portions of the revenue law sustain the action of
the board. The official title of the board is the Board of Equalization. The received
construction of its duty is to equalize the taxes. It would seem unreasonable that a board thus
constituted would not have jurisdiction to equalize all property but such only as appears upon
the assessment roll. Section 23 of the law provides, among other things, that the board shall
have power to determine the valuation of any property assessed. These words, in the
connection with which they are used, include all property, and no qualification or condition
whatever is imposed. This was evidently the intention of the members of the legislature that
passed the bill. In the 66th section, touching personal property, it provides that the taxpayer
shall not be deprived of his right to have his assessment equalized, and if, upon equalization,
the value be reduced, the excess shall be refunded. In the present case the valuation was
raised and not reduced, but the word equalize, according to Webster, means to make
equal, to be like in amount or degree, as to equalize accounts, burdens, or taxes. By raising
the assessor's valuation, the board, in the exercise of its judgment, equalized the taxes of
defendant with those of the other taxpayers of the county.
3. In the agreed statement of facts it is stated that the assessor made a uniform and equal
valuation of this kind, character and species of merchandise.
23 Nev. 274, 278 (1896) State v. Meyers
character and species of merchandise. No mention is made of other kinds, character or species
of personal property. The statement is therefore insufficient to show that the raised valuation
made by the board was unjust. It does not show that the valuation of defendant's property, as
made by the assessor, was uniform with other personal property upon the assessment roll, and
further that it was not equalized by the board at its true cash value.
Judgment affirmed.
____________
23 Nev. 279, 279 (1896)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
OCTOBER TERM, 1896.
____________
23 Nev. 279, 279 (1896) Lutz v. Kinney
[No. 1476.]
MARTIN LUTZ, Appellant, v. WILLIAM KINNEY,
Sheriff of Ormsby County, Respondent.
Chattel MortgageAffidavit toNotice.In the absence of a statute requiring the affidavit annexed to a chattel
mortgage to be signed by the affiants, the mortgage is notice to and valid against third persons, though the
affidavit is not signed by the mortgagor or mortgagee.
IdemAffidavit Not SignedProper Certificate Sufficient.In the affidavit to the chattel mortgage in
question, the mortgagee wrote his name opposite the words State of Nevada, in the venue of the affidavit,
and underneath the name of the mortgagor as signed by him to the mortgage. The mortgagor did not sign
his name to the affidavit at all. The affidavit was certified to as being subscribed and sworn to before J. D.
Kersey, notary public: Held, that it was not necessary that the affidavit be signed, that the verification was
sufficient prima facie, and could only be overcome by evidence that the affidavit was not in fact sworn to.
Appeal from the District Court of the State of Nevada, Ormsby county; C. E. Mack,
District Judge:
Action by Martin Lutz against William Kinney, Sheriff of Ormsby county. Judgment for
defendant, and plaintiff appeals. Reversed.
The facts sufficiently appear in the opinion.
23 Nev. 279, 280 (1896) Lutz v. Kinney
Alfred Chartz, for Appellant:
I. The subscription of Martin Lutz is not necessary in the affidavit of mortgagor and
mortgagee in the chattel mortgage in question. (3 Blackstone, 304, title, Affidavit;
Bouvier's, Kinney's, Burrill's and Tomlin's Law Dictionaries; Am. and Eng. Ency. Law, vol.
1, p. 909; Bates v. Robinson, 8 Iowa, 320; Hitsman v. Garrard, 1 Harr. 124; Ede v. Johnson,
15 Cal. 53; Am. and Eng. Ency. Law, 441; Cobbey, Chat. Mort., sec. 406; Martindale on
Conveyancing, 209; State v. Washoe County, 5 Nev. 320.)
II. If a signature is required, it makes no difference in what part of the affidavit it is
written. (6 S.W. 551.)
A. J. McGowan and C. A. Jones, for Respondent:
I. The mortgage is not sufficient under the law to bind creditors, and nowhere on its face
can a reasonable man find anything to show that Lutz ever saw the mortgage at all. His name
is nowhere attached to the affidavit.
II. The words Archer Baker and Martin Lutz were written by the person who drafted the
chattel mortgage, and not by the notary public at all. There is nothing to show upon the face
of the mortgage that Martin Lutz ever took the affidavit.
By the Court, Bonnifield, J.:
The defendant, as sheriff, and by virtue of an execution issued on a money judgment
recovered against Archer Baker, levied upon, seized and took from the possession of said
Baker a certain lot of his personal property on which Martin Lutz, the plaintiff herein, held a
chattel mortgage executed to him by said Archer Baker, said mortgage having been duly
recorded in the office of the county recorder. The defendant disregarded said mortgage and
complied with none of the provisions of the statute with reference to the seizure, under
attachment or execution, of mortgaged personal property; hence this suit by the plaintiff
against the defendant.
The question to be determined is as to the sufficiency of the affidavit annexed to the
mortgage. It is in part as follows: "State of Nevada, County of Ormsbyss: Archer Baker,
the mortgagor in the foregoing mortgage named, and Martin Lutz, the mortgagee in said
mortgage named, being duly sworn, each for himself, and not one for the other, doth
depose and say: * * *
23 Nev. 279, 281 (1896) Lutz v. Kinney
State of Nevada, County of Ormsbyss: Archer Baker, the mortgagor in the foregoing
mortgage named, and Martin Lutz, the mortgagee in said mortgage named, being duly sworn,
each for himself, and not one for the other, doth depose and say: * * *
Subscribed and sworn to before me this 18th day of March, 1896. J. D. Kersey, Notary
Public, Ormsby Co., Nevada. [Seal.]
The trial court found: (5) That Martin Lutz, the mortgagee in said mortgage named, while
it is evident that he intended to subscribe his name to the affidavit as required by the statute in
such case made and provided, in fact wrote his name opposite the words State of Nevada,' in
the venue of said affidavit, and underneath the name of the mortgagor as signed by him to the
mortgage, and that Martin Lutz did not subscribe his name to the affidavit, and therefore the
mortgage as executed was not a sufficient notice to bind creditors. (8) That defendant is
entitled to judgment dismissing this cause and for costs of suit expended by him. Judgment
was entered accordingly. The plaintiff appeals from the judgment and order of the court
denying his motion for new trial.
There is no statute or rule of court in this state requiring the affidavit annexed to a chattel
mortgage to be subscribed or signed by the affiants, and, in the absence thereof, we are of
opinion that it was not necessary for the affidavit in question to have been subscribed by
either the mortgagor or mortgagee to make the mortgage notice to or valid against third
parties.
Several legal definitions of an affidavit are given in the books, which, in the main, are
substantially the same. An affidavit is a voluntary, ex parte statement formally reduced to
writing and sworn to or affirmed before some officer authorized to take it. (1 Ency. of
Pleading and Practice, 309.)
The essential requisites are, apart from the title in some cases, that there shall be an oath
administered by an officer authorized by law to administer it, and that what the affiant states
under such oath shall be reduced to writing before such officer. The signing or subscribing of
the name of the affiant to the writing is not generally essential to its validity; it is not,
unless some statutory regulation requires it, as is sometimes the case.
23 Nev. 279, 282 (1896) Lutz v. Kinney
affiant to the writing is not generally essential to its validity; it is not, unless some statutory
regulation requires it, as is sometimes the case. It must be certified by the officer before
whom the oath was taken. * * * The certificate, usually called the jurat,' is essential, not as a
part of the affidavit, but as official evidence that the oath was taken before the proper officer.
The signature of an affiant can in no case add to or give force to what is sworn, and what is
sworn is made to appear authoritatively by the certificate of the officer. This seems to us to be
a reasonable view of the principal requisites of an affidavit, and, although there is some
contrariety of judicial decisions upon the subject, the weight of authority sustains it. (Alford
v. McCormac, 90 N. C. 151.)
An affidavit, as defined by Blackstone, is a voluntary oath before some judge or officer
of the court, to evince the truth of certain facts.' (3 Bl. Com. 304.) In practice it is said to be
an oath or affirmation reduced to writing, sworn or affirmed before some officer who has
authority to administer it.' (Bouv. Law Dic. 79, title, Affidavit.') It is not necessary that the
affiant should sign the affidavit. He must make it; that is, he must swear to the facts stated,
and they must be in writing. It is then his affidavit, and as evidence that it was sworn to by the
party, whose oath it purports to be, it must be certified by the officer before whom it was
taken; which certificate is commonly called the jurat,' and must be signed by such officer.
(Gill et al. v. Ward et al., 23 Ark. 16.)
An affidavit need not be signed by the affiant, unless such signature is required by some
statute or by a rule of court. (Hitsman v. Garrard, 1 Harr. (N.J.) 124; Norton v. Hague, 47
Minn. 405; Shelton v. Berry, 19 Tex. 154; Bloomingdale v. Chittenden, 75 Mich. 305.)
In reference to an affidavit attached to a chattel mortgage in Ede v. Johnson, 15 Cal. 53,
the court said: It is not necessary that the parties should sign the affidavit. This is too well
settled to require discussion. It sufficiently appears that the affidavit was taken by a
competent officer.
In the making of the statement of the mortgagee required on a chattel mortgage, the agent
of the corporation omitted to affix his name thereto. Underneath the statement was a
certificate by a notary public, duly signed and sealed, which in effect stated that the
statement was sworn to by the mortgagee before him: Held, that this verification is
sufficient prima facie and can only be overcome by evidence that the statement was not
in fact sworn to by a proper agent of the corporation.
23 Nev. 279, 283 (1896) Lutz v. Kinney
certificate by a notary public, duly signed and sealed, which in effect stated that the statement
was sworn to by the mortgagee before him: Held, that this verification is sufficient prima
facie and can only be overcome by evidence that the statement was not in fact sworn to by a
proper agent of the corporation. (Gambrinus Stock Co. v. Weber et al., 41 Ohio St. 689.)
In State of Nevada v. The Board of County Commissioners of Washoe County, 5 Nev. 320,
the court expressed the opinion that an affidavit need not necessarily be subscribed, and cited
15 Cal. 53, supra, and other cases in support thereof.
We are of opinion that the district court was mistaken in its conclusions of law and erred
in dismissing the action.
The judgment and order appealed from are, therefore, reversed.
____________
23 Nev. 283, 283 (1896) State v. Virginia & Truckee R. R. Co.
[No. 1473.]
THE STATE OF NEVADA, Respondent, v. THE VIRGINIA AND TRUCKEE RAILROAD
COMPANY, A Corporation, Appellant.
Defense to Suit For Delinquent TaxesEffect of Act of 1895.Prior to the amendment of section 52 of the
general revenue law (Stats. 1895, p. 35), the defense by a defendant, sued for delinquent taxes, that the
assessment is out of proportion to and above the actual cash value of the property assessed, could not have
been made.
TaxationValue of Railroad, How DeterminedNet Income, When Governs.The actual cost of a railroad is
prima facie its value; but if it appears that the actual cost was in excess of the necessary cost, the necessary
cost is its proper standard. If it further appears that the net income of the road does not amount to current
rates of interest on its necessary cost, and is not likely to do so, or if the business of the road is likely to be
destroyed or impaired, by competition or other cause, or, in short, if the utility of the road is not equal to its
cost, then its value is less than its cost, and must be determined by reference to its utility alone. (State v.
Central Pacific R. Co., 10 Nev. 47, affirmed.)
IdemMeaning of Term Cash Value as Applied to Railroads.Under Stats. 1891, pp. 137, 138, providing
that all property shall be assessed at its actual cash value, and that the term cash value means the amount
at which the property would be appraised if taken in payment of a just debt from a solvent debtor, the value
of a railroad for the purpose of taxation must be determined mainly by its net earnings, capitalized at the
current rate of interest, taking into consideration any immediate prospect of an increase or decrease in the
earning capacity or the road.
23 Nev. 283, 284 (1986) State v. Virginia & Truckee R. R. Co.
IdemAssessmentEvidence Insufficient to SupportNo Substantial Conflict Of.Evidence of an assessor,
who valued a railroad for taxation, that he took into consideration the business the road seemed to be
doing, certain mining developments which, at the time of the trial, proved to be worthless; the material in
the road and its condition; that he did not examine the reports of the road, filed in the office of the secretary
of state as required by law, nor make any inquiry as to the amount of its business, leaving both this and
prospective change in the value of business out of consideration, as well as the decrease in the earnings of
the road; that if he had known that the earnings had greatly decreased, it would not have made any
difference in his judgment of its value, etc., it appearing that he had no special knowledge of the value of a
railroad, is insufficient to create a substantial conflict in the evidence, where the undisputed facts show that,
according to the correct method of valuation, the assessment is too high.
IdemNet Earnings of RailroadExpense of Replacing Bridge Reduced.In estimating the net earnings of a
railroad as a basis for ascertaining the value of the road for the purpose of taxation, the cost of replacing a
bridge should be deducted as a part of the expense of that year.
EvidenceNo Substantial ConflictRule.The rule that a verdict on conflicting evidence will not be disturbed
relates only to a substantial conflict.
Appeal from the District Court of the State of Nevada, Washoe county; A. E. Cheney,
District Judge:
Action by the State against the Virginia and Truckee Railroad Company, et al., to recover
taxes assessed on the railroad for the year 1895. From a judgment for plaintiff, and an order
denying a new trial, defendants appeal. Reversed.
Action to recover taxes due for the year 1895, amounting to $5,369 10. The defendant
made the statement to the assessor, required by the statute, valuing its railroad in Washoe
county at $131,800. This the assessor refused to accept, but assessed it at the sum of
$254,325. Upon complaint by the defendant to the board of equalization of Washoe county,
this assessment was sustained. Upon the taxes becoming due the defendant tendered in full
payment thereof $3,173 86, which was refused by the tax collector. To the action the
defendant made answer that the actual cash value of its road in Washoe county was but
$131,800. The case was tried before a jury and a verdict rendered in favor of the state, finding
the value of the property to be the same as fixed by the assessor. From the judgment entered
upon this verdict, and an order refusing a new trial, the defendant appeals.
23 Nev. 283, 285 (1896) State v. Virginia & Truckee R. R. Co.
upon this verdict, and an order refusing a new trial, the defendant appeals.
W. E. F. Deal, for Appellant:
I. The assessment made by the county assessor was an arbitrary one, made without any
knowledge or attempt on the part of the county assessor to obtain knowledge of the value of
the property in question. The county assessor testified that he was elected county assessor of
Washoe county in 1894. His term of office commenced in 1895, in January; he had been
deputy county assessor four years; he had been on the railroad frequently, and assessed it in
1895 at $9,500 per mile for the main track and $5,000 per mile for the side track; making the
sum of $254,325 for that portion of the railroad in Washoe county. He testified that to a
certain extent he took pains to ascertain the value of the road, and fixed the value of what the
property would bring if appraised and taken by a creditor from a solvent debtor for a just debt,
and that he assessed all the property in Washoe county for the actual cash value; that on
making the assessment he took into consideration the current rate of business the railroad was
doing; the prospects in the Pine Nut country, the developments that might be in the
Comstock, and the condition of the road. He further testified that he watched the business at
Reno, the travel over the road, and the improvements that had been made in 1894, and that he
concluded the road was not going down if they were making improvements; that the
improvements he had noticed were the steel bridge over the Truckee river, the repairs in
general, the ballasting, etc.; that he had an idea that the bridge cost from $10,000 to $14,000,
and that this idea had something to do in making up his judgment as to the value, and that the
cost of the bridge to some extent influenced him as to the value of the road. He made no
inquiries to ascertain what the business of the road was, nor did he examine the report of the
company of its receipts and expenditures. He could not say that if he had known that the net
earnings of the road amounted to $8,642 52 in the year 1894, that that would have had any
effect upon his judgment. If he had known what the gross receipts and gross expenditures
were for the year 1S94, he could not say that this would have any effect upon his
judgment.
23 Nev. 283, 286 (1896) State v. Virginia & Truckee R. R. Co.
year 1894, he could not say that this would have any effect upon his judgment. He did not
examine the company's report for the fiscal year 1893, and, if he had, it would have had no
influence upon his judgment, nor would it have made any difference in his judgment if he had
known that the net receipts of the company had fallen from $102,341 52 in 1893 to $8,642 52
in 1894. He further testified that he did not take into consideration any decrease in the
earnings, and that he did not go into the business of the company as shown by the reports at
all; that he made no inquiry of the officers of the company during any of the years he had
been assessor.
II. The whole testimony of this witness showed that he arbitrarily assessed this property,
without taking into consideration its receipts, its expenditures or its business, and without
making an inquiry to ascertain any elements of value of such property. He declared that he did
not take into consideration the depression in business in every place the appellant depended
upon for its business, and that he did not take into consideration the business of the company,
and that the prospects of the Pine Nut country and developments on the Comstock had proved
delusive.
III. The only other testimony on the part of the state as to the business of the company was
that of George E. Peckham, who testified that he noticed, while at work, the trains passing
over the road, and that there were a larger number of special trains in the last year or two than
formerly, but his observations were confined to the road near his place.
IV. The testimony on the part of the state adds nothing to the prima facie case made by
the introduction of the delinquent assessment roll.
V. The appellant's testimony amply sustained the correctness of the statement made to the
county assessor. It was shown that the cost of the railroad exceeded $3,000,000; that another
railroad, as good and as well adapted for the purpose, could have been built in 1895 for the
sum of $1,500,000, exclusive of the value of the right of way. It was shown that the current
rate of interest for the year 1895 was 8 per cent per annum. In the year here in question, 1895,
the net profits were $27,467 53, and from the 30th of January, 1895, to the time of the trial,
May, 1S96, the net profits were $16,962 17.
23 Nev. 283, 287 (1896) State v. Virginia & Truckee R. R. Co.
to the time of the trial, May, 1896, the net profits were $16,962 17. At the same rate for the
year ending the 30th of June, 1896, the net profits would have been about $20,000. So that
based upon the business of the road, the value of the road decreased after the fiscal year 1895.
The proof showed that the whole length of appellant's road was 77.89 miles, of which 51.75
was main track and 26.14 side track; that the portion of the road within the county of Washoe
constituted 29.20-77.89 of the whole road. Based upon the utility of the road (the earning
capacity) the whole road was not worth to exceed the sum of $344,120, and it had not been
worth to exceed that sum since June 30, 1893, and it was not likely to be worth more than
that. On the contrary, the evidence showed that, based upon its utility, the road would
decrease in value.
VI. To fix any such value as that placed by the assessor upon the road within Washoe
county, $254,325, the value of the whole road, based upon the net earnings of the company,
should amount to about $678,403, and the net income of the road should have been about
$54,272 24, nearly double what it actually was.
VII. The court has settled the law applicable to the assessment of railroads in this state for
the purpose of taxation. (State v. C. P. R. R. Co., 7 Nev. 781; State v. C. P. R. R. Co., 10 Nev.
47.)
VIII. The assessor must be governed by just rules when he values property for the purpose
of taxation. He must take into consideration the elements which constitute value. His
judgment, without any fact or reason to sustain it, cannot be allowed to stand when it is
affirmatively shown that his judgment was neither based upon the actual business of the road,
nor upon the prospective, nor upon its income, nor any other element of value. Upon his
showing the only thing that made him a competent witness was his official character; any
other witness would have been excluded from the stand upon such utter lack of knowledge as
was shown by the assessor.
IX. Applying these legal principles, in cases cited supra, 7 Nev. 781, 10 Nev. 47, which
are supported by sound reason in addition to their authority to this case, the court will see
that the assessment of which appellant complained was nearly double what it should
have been; there is no fact in the case that the finger can be laid upon to justify this
verdict, and it must be set aside.
23 Nev. 283, 288 (1896) State v. Virginia & Truckee R. R. Co.
that the assessment of which appellant complained was nearly double what it should have
been; there is no fact in the case that the finger can be laid upon to justify this verdict, and it
must be set aside. To allow it to stand against the overwhelming testimony would constitute
jury trials a farce, and would constitute county assessors absolute masters of every citizen's
property.
X. The contention of counsel for respondent that, upon the facts as established by the
evidence in the case, appellant would have had no remedy against the assessment as made by
the assessor prior to the act of 1895, cannot prevail. For every such injury, and for every such
deprivation of a right, there is, and always has been, a remedy under the constitution and laws
of Nevada. (Art. X, sec. 1, Const. Nev.; Stats. 1895, p. 169.)
XI. The words true cash value, just valuation, full cash value, actual cash value,
mean one and the same thing. If any of them mean that a citizen's property can be assessed for
more than it would sell for, then an unjust valuation could be made which would be contrary
to the constitution. It is very clear that the legislature, in giving the definition of the term full
cash value, intended to assist the assessor in making his assessment. In order to determine
what a given piece of property would be appraised at, if taken in payment of a just debt by a
solvent debtor, the elements that go to make its value must be ascertained.
XII. Whether dicta or not, the rule laid down in 10 Nev. 74, furnishes a just and, in fact,
the only, mode of ascertaining the value of railroads for the purposes of taxation, and is in
accordance with the laws of this state.
R. M. Beatty, Attorney-General, F. H. Norcross, District Attorney, and Torreyson &
Summerfield, for Respondent:
I. Under the various revenue acts of Nevada, previous to the year 1895, the action of the
board of equalization in reviewing the valuations of property by assessors, in the absence of
fraud, was final and conclusive.
II. The court will not weigh the evidence in this case and decide which party litigant in its
judgment adduced a preponderance of testimony. If there is a substantial conflict in the
testimony, this appellate court will not exclude the judgment of the jury and the trial
court by substituting its opinion therefor.
23 Nev. 283, 289 (1896) State v. Virginia & Truckee R. R. Co.
in the testimony, this appellate court will not exclude the judgment of the jury and the trial
court by substituting its opinion therefor. (Dennis v. Caughlin, 44 Pac. 818; Beck v.
Thompson, 36 Pac. 565; Pinschewer v. Hanks, 18 Nev. 103; Overman Co. v. Corcoran, 15
Nev. 151.)
III. There is substantial evidence to support the verdicts of the jury, and the trial court has
approved the verdicts by refusing a new trial. In such a case the appellate court will not
reverse the judgment on appeal. (St. Louis & S. F. Ry. Co. v. Brown, 45 Pac. 118; Ward v.
Christy, 38 N. E. 533; Davis v. Hilbourn, 59 N. W. 379; Jones v. Singer Mfg. Co., 18 S. E.
478.)
IV. It is entirely immaterial whether the assessment was arbitrary or considerate in its
determination by the assessor; whether the assessor was negligent or diligent in seeking
knowledge of the value of the property in dispute; and whether the assessor employed correct
or erroneous mental processes and principles in determining its value, provided that he did
not fix the valuation at more than the full cash value of the property. If a substantially correct
result is attained, the law is satisfied without analyzing the methods by which it was reached.
V. Appellant appears to rely in considerable confidence upon the opinion of this court in
the cases of State v. C. P. R. R. Co., 7 Nev. 99, and State v. C. P. R. R. Co., 10 Nev. 47. In the
first-mentioned case the court below had sustained demurrers to the original and to the
amended answer, each of which alleged a fraudulently excessive valuation of railroad
property. In the course of its decision the court expressed the language quoted by appellant. It
appears to be dicta, but at any rate it contains nothing to support appellant's theories or in
anywise militating against respondent's positions herein. There is no issue of fraud in this
case.
VI. The decision in 10 Nev. was rendered under the revenue laws of the state of Nevada
as they existed in 1870. At that time the statutes did not prescribe any subsidiary principles to
control or guide the valuation of property in general, or of railroad property in particular, for
the purpose of taxation. In the absence of any statute relating to the assessments of railroads
in particular, the court, by Justice Beatty, expressed the views quoted in appellant's brief.
23 Nev. 283, 290 (1896) State v. Virginia & Truckee R. R. Co.
expressed the views quoted in appellant's brief. That it is mere dicta is perfectly plain in view
of the fact that at that time the valuation of property, as equalized by the board of
equalization, in the absence of fraud upon the part of the assessor, or board of equalization,
was conclusive, and not a matter for review or determination by the courts. Having no
jurisdiction to determine the value of property for the purpose of taxation, it would seem clear
that the courts had no jurisdiction to decide methods to be employed in the determination of
values.
VII. Section 4 of the act of 1875, and section 3 of the act of 1893, expressly provide that
in ascertaining, assessing, and fixing the value of any railroad for taxation the assessor shall
assess it the same as other property. Either this provision is meaningless, or all non-exempt
property in Nevada should be valued by the same process of estimation, or the views
expressed in 10 Nev., as contended for by appellant, are not the law and are not applicable
under the present statutes.
VIII. Appellant claims the right to deduct all salaries, cost of operating, expenses, repairs,
taxes, and all expenses whatever, from the gross receipts in order to ascertain the net income,
and then to simply capitalize the net income at the current interest rate to fix the full cash
value of its railroad for taxation purposes. It is safe to assert that there is hardly a ranch, piece
of real estate, or stock of goods, wares and merchandise, which, valued under such a rule,
would have any value for taxation whatever.
IX. The evidence is amply sufficient to sustain the verdict of the jury. The annual report of
appellant, filed with the secretary of state under the requirements of the law, shows that the
net earnings of the Virginia and Truckee Railroad in the year 1895 was $33,467 53. Ignoring
the element of a prospective increase of net earnings, and applying the views contained in the
10 Nev. case with rigid exactness, and you reach a result as follows: $33,467 53 divided by
.08 equals $418, 344 13, as the value of the whole road. As assessed by the Washoe county
assessor at a valuation of $9,500 per mile of main track and $3,000 per mile of side track, we
have the following result, which includes the element of prospective value:
51.75X$9,500=$491,625; 26.14X$3,000=$7S,320, or $569,945 as the value of the road.
23 Nev. 283, 291 (1896) State v. Virginia & Truckee R. R. Co.
ment of prospective value: 51.75X$9,500=$491,625; 26.14X$3,000=$78,320, or $569,945 as
the value of the road. The difference between $418,344 and $569,945, which is $151,601,
therefore represents the prospective increase in value as determined from the evidence of the
assessor, the board of equalization, the jury and the trial court, and amounts to a little more
than one-third of the value insisted upon by appellant ignoring the element of prospective
value.
X. The evidence clearly established the fact that appellant's railroad had a prospective
value at the time it was assessed in 1895. In 1892, only three years before the assessment in
dispute, the net earnings were $202,225 68. Applying the same rule, its taxable value then
was $2,527,821, or $42,130 per mile. Taking the average net earnings for the ten years
immediately preceding the year 1895, and applying the same rule, the average value of the
road would be $3,167,250, or $52,787 per mile. The entire testimony showed that a large
proportion of the roadbed had been lately well ballasted, and that it, as well as the fences,
cattle guards, culverts, bridges, and other improvements, were in a good condition, and would
need very little repairing for several years.
XI. It being shown by appellant's annual report that, in 1895, its net earnings were
increasing at the rate of almost 400 per centum over those of the preceding year, and that fact
being fortified by the evidence above cited, and it being further a universally admitted fact as
well as principle of law that prospective values, when founded upon reasonable probabilities,
or even speculative probabilities, are and constitute one of the most important elements to be
considered in assessing property for the purpose of taxation, and especially and particularly in
the case of railroad property because of a sensitively fluctuating character, being likened by
appellant's leading expert witness, Mr. E. Black Ryan, to a thermometer, and registering the
most delicate variations in general business, it is submitted that the jury and the court were
amply justified in rendering their verdicts and in denying appellant a new trial.
XII. Appellant steadfastly maintains, in effect, that the valuation of its railroad in 1895,
for the purpose of taxation, should have been determined with reference to the earnings of
that year alone.
23 Nev. 283, 292 (1896) State v. Virginia & Truckee R. R. Co.
tion, should have been determined with reference to the earnings of that year alone. This is an
obviously erroneous principle. If such a principle should be sustained, it would amount to a
holding that, if such extensive repairs should have to be made all in one year as to absorb the
income of the railroad for that year, it would have no taxable value that year. And yet the
volume of business for that particular year might exceed that of any other, and the complete
repairs made during the year would increase the net earnings of the road for many years
thereafter by reason of the fact that few repairs would be required for the several ensuing
years.
By the Court, Bigelow, C. J.:
By act of March 9, 1895 (Stats. 1895, 39), section 52 of the revenue law was amended so
as to permit a defendant sued for delinquent taxes to answer that the assessment is out of
proportion to and above the actual cash value of the property assessed. Prior to that
amendment this defense could not have been made. (State v. C. P. R. R. Co., 21 Nev. 172,
178.) The defendant answered under this amendment, but the jury found against it, and the
question presented upon the appeal is, what was the actual cash value of the defendant's road
in Washoe county?
The respondent first contends that the evidence as to value is conflicting, and that
consequently this court cannot interfere with the verdict. That is undoubtedly the general rule,
but for it to have this effect there must be a substantial conflict. It is not sufficient that there is
some evidence supporting the verdict, if it is so weak and inconclusive as not to raise a
substantial conflict with that produced against it. (Hayne, New Trial and Appeal, sec. 288;
Watt v. Nev. Cent. R. R. Co., 23 Nev. 155.) We think that is the case here. While there is
some evidence in support of the verdict, it is so weak and is so completely upset by the
undisputed facts that it does not raise a substantial conflict as to the true value of the road.
The constitution of Nevada, art. X, provides that all property, both real and personal, shall
be assessed and taxed at an equal and uniform rate, and shall receive a just valuation.
23 Nev. 283, 293 (1896) State v. Virginia & Truckee R. R. Co.
ation. By Stats. 1893, p. 110, sec. 4, it is provided: In ascertaining, assessing and fixing the
value of any railroad for taxation, the assessor shall assess it the same as other property, and
shall consider, treat and assess the portion thereof at its value within his county as an integral
part of a complete, continuous and operated line of railroad, and not as so much land covered
by the right of way merely, nor as so many miles of track consisting of iron rails, ties and
couplings. By Stats. 1891, 137, 138, it is directed that all property shall be assessed at its
actual cash value, and that the term full cash value' means the amount at which the property
would be appraised if taken in payment of a just debt due from a solvent debtor.
A railroad then, the same as every other class of property, is to be assessed at its true cash
valueat such an amount as it would be appraised if taken in payment of a just debt due from
a solvent debtorbut this does not necessarily mean that the same rules and principles are to
be applied to all the different kinds in determining what their true cash value is. The true
value of each class is to be determined by evidence applicable to that class. Wherever
property has a well-defined market value, which is usually the case with personal property,
with town and farm property, the market value is usually the best criterion of its value for
purposes of taxation. It is fair to presume that property to be taken in payment of a just debt
from a solvent debtor would be appraised at what it is reasonably worth in the marketat
what it would probably bring. So one rule is really the equivalent of the other.
But there are many other kinds of property to which this test would be entirely
inapplicable. It cannot be said, although sometimes bought and sold, that they have a market
value. Such, for instance, is a water ditch, a salt marsh, a borax field, or a mine of any kind. A
toll road is another instance. Take, for example, the famous Geiger grade, which must have
cost many thousands of dollars, and have been, at one time, a wonderfully productive piece of
property, but which now would probably not pay the wages of a toll-keeper. The market
cannot be appealed to to fix a value upon such property, but its value may be and must be
fixed by other obvious considerations.
23 Nev. 283, 294 (1896) State v. Virginia & Truckee R. R. Co.
fixed by other obvious considerations. A railroad comes within this class. Railroads are
bought and sold so seldom, and the value of each road depends so entirely upon its
surroundings, that in determining the amount at which such property would be appraised if
taken in payment of a debt, we must resort to other principles.
Railroads are usually constructed and operated for profit. They are not valued, as men
sometimes value a beautiful home, a horse or a diamond, for the pleasure that comes from
their ownership, but from the returns that can be obtained from them as a business
investment. Neither are they usually held for speculative purposes as much other
propertyparticularly unimproved lands, town and city propertyis so often held. The value
of a railroad is generally strictly prosaic and utilitarian.
To obtain any return from it, either present or prospective, a railroad must be operated. It
cannot lie idle and at the same time increase in value through the natural increase of
population and business. As it must be operated, expense must be constantly incurred, and the
result is that its true value as a railroad depends very largelyalmost entirelyupon what its
net income can be expected to be.
It is reasonable to suppose that the owners of a road will operate it to their own best
advantage; that they will obtain all the income possible, and keep the expense of operation as
low as possible. This should certainly be the presumption in the absence of a showing to the
contrary; and it follows, where a road has been operated for a number of years, that what it
has done in the past is a very good criterion of what it may be expected to do, under the same
conditions, in the future.
Then, after ascertaining this net return, it is necessary to take into consideration the
surrounding conditions, which also cut some figure in the problem, such as the condition of
the road, in order to determine whether the expense of keeping it in repair will be greater or
less than in the past, and the condition of the country tributary to the road, in order to form a
judgment of whether its business is likely to increase or decrease or remain stationary. In fact,
the true cash value of the propertyits value for taxationshould be determined by the
same matters that would be considered by one who wished to purchase and who was
simply endeavoring to ascertain what the road was worth.
23 Nev. 283, 295 (1896) State v. Virginia & Truckee R. R. Co.
be determined by the same matters that would be considered by one who wished to purchase
and who was simply endeavoring to ascertain what the road was worth.
In the case of State v. C. P. R. R. Co., 10 Nev. 47, this whole matter was very thoroughly
considered by as able a bench as it has ever been the good fortune of this state to have. From
the opinion by Beatty, J., we make the following short extract: To determine the value of a
railroad, then, the very first inquiry is as to its actual cost. That, prima facie, is its value. But
if it appears that the actual cost was in excess of the necessary cost, the necessary cost is its
proper standard. If it further appears that the net income of the road does not amount to
current rates of interest on its necessary cost, and is not likely to do so, or if the business of
the road is likely to be destroyed or impaired by competition or other cause, or, in short, if the
utility of the road is not equal to its cost, then its value is less than its cost, and must be
determined by reference to its utility alone.
It is claimed, however, that what was said in that case as to the correct rule for fixing the
valuation of a railroad was dictum.
We do not so regard it, as the defense in that case was that the road had been fraudulently
over-valued. In considering this defense the first point to be determined was whether there
had been any over-valuation at all. Upon its theory of how a road should be valued, the
defendant had established that there had, and this brought the question of what was a correct
theory squarely before the court. But no matter. Whether what was there said was necessary
to the decision of that case or not, we regard it as a substantially correct statement of the law,
and we find it supported by many other cases.
Thus, in People v. Keator, 67 How. Pr. 278, the court held as follows: In complying with
this provision of the law, as a railroad property cannot as a dwelling have any fancy value by
reason of its location or the expenditure thereon of large sums of money which would
conduce to the comfort of the owner, it is evident that the assessors, in fixing its value, must
be very largely controlled by its ability to earn money, and the productiveness of its use for
the purposes of a railroad.
23 Nev. 283, 296 (1896) State v. Virginia & Truckee R. R. Co.
and the productiveness of its use for the purposes of a railroad. As an original question it
would seem to be reasonably clear that the value of a railroad property must almost entirely
depend upon its capacity to earn money for its owners, and that therefore no creditor would
receive from a solvent debtor in payment of his debt railroad property at a greater price than
that which would be a fair one based upon its earning capacity. In People v. Weaver, 67
How. 479, a case involving the value of a bridge, the same court said: In determining the
value of the property of the relator in the mode which the statute directs, it is an evidently
sound proposition that the true criterion of such value must be its earning capacity.
In People v. Hicks, 40 Hun, 601, we find the following, which we adopt as a very careful
statement of the law: The estimate of value of any portion of the road cannot be intelligently
made without some knowledge or information of it as a whole, and its business, earnings and
ordinary expenses. Railroads are constructed with a view mainly to revenue and profit upon
investments. And hence the productive capacity and its earnings are matters for consideration
in the estimate of their value. And the extent to which actual net earnings of a road should
govern or aid such estimate is dependent upon circumstances. No arbitrary method can be
prescribed of ascertaining value. In some cases the earnings of a road may be entitled to much
more consideration than in others. The cost of the road is also usually to be taken into
account, and the value depends much upon relations present, and in reasonable
contemplation, because the value of property may considerably be dependent upon defined
unappropriated means and facilities for increased business connections and relations and the
importance of the consequences to follow. To the same effect are Trustees Cincinnati South.
Railway v. Guenther, 19 Fed. 395; People v. Pond, 6 Abb. New Cases, 1. See, also, People v.
Fredericks, 48 Barb. 173; State v. C. P. R. R. Co., 7 Nev. 99.
Perhaps, to avoid a misunderstanding of our decision, it should be stated in this connection
that the value of a portion of a road is not necessarily a fractional part of the whole. Owing to
local considerations, it may be greater or less.
23 Nev. 283, 297 (1896) State v. Virginia & Truckee R. R. Co.
less. But we find nothing in the evidence in this case indicating any difference, and it is only
mentioned to avoid a misconstruction of the opinion.
Without contradiction, the evidence in this case shows the following facts: That the cost of
construction of the road was $3,780,452 96; but that it could now be replaced, exclusive of
the right of way, for $1,500,000. That for the year ending June 30, 1894, the net earnings
were $8,642 52; for the year ending June 30, 1895, $27,449 53; and for the year ending June
30, 1896, of which the last three months were estimated upon the basis of the receipts for the
preceding nine months, $21,077 71, from which should be deducted, at least, $6,898 23, the
amount the defendant admitted to be due Storey and Washoe counties for taxes for the year
1895, and possibly more, depending upon the result of this, and a similar action in Storey
county, leaving net for that year $14,179 50, or less. It is not claimed that these figures are
incorrect, nor that the gross receipts of any year might have been increased by proper
management, or the amount of expense decreased.
It was also shown, without contradiction, that the current rate of interest in Washoe county
was 8 per cent per annum. Whether a broader view should not have been taken upon this
point, and the rate of interest fixed at a lower figure, we have no data upon which to form a
conclusion. There was no evidence that it was too high, and, for the purpose of this appeal, it
must consequently be accepted as correct.
It was also shown, again without contradiction, that there is no prospect in the near future
that the business of the road will increase. In fact, it seems quite probable that, if anything, for
some time to come, the receipts must decrease. In this connection it is argued that the jury had
a right to exercise their own judgment in determining whether there was a probability of
future improvement; that they could take judicial notice of the condition of the country, and
determine as well as an expert whether business was likely to increase, and that having done
so, their judgment cannot be revised by this court. Admitting, without deciding, that they
could take such notice of surrounding conditions, then this court has the same right and the
same knowledge that the jury had, and the same as a finding upon any other point, there
must be something substantial upon which to base it.
23 Nev. 283, 298 (1896) State v. Virginia & Truckee R. R. Co.
the jury had, and the same as a finding upon any other point, there must be something
substantial upon which to base it. If the jury can take judicial notice of a thing, it must be of
something that exists, not of something that does not, and there can be no question that there
is nothing now except pure speculation upon which to base such a belief. There are no
improvements contemplated and in process of construction, and no new mining camps
discovered and developed to such an extent in the region of country tributary to the
defendant's road as make it reasonably certain that they will add materially to the income of
the road in the near future. To affect the present value of the road such prospective
improvement must be more than a possibility. It must be so near and so certain that a business
man purchasing the road would take it into consideration. (People v. Weaver, 67 How. Pr.
477.) It is present, and not prospective, value that is in question. (People v. Roberts, 38 N. Y.
Supp. 724.)
It is very probable that in time new mining discoveries will be made, or present ones
further developed, and new enterprises opened up that will bring in an increased population
and add to the business of this road, and we certainly believe that such will be the case, and
when this happens it will add to its value, but this possibility does not, as a business
proposition, add materially to its present value.
From the foregoing data, which certainly, in the main, cover the elements to be taken into
consideration in determining the value of this road, there can be no question that the portion
of the road in Washoe county is not of the true cash value of $254,321, as fixed by the
verdict.
It does not seem reasonable that the value of a road should be fixed in view of the net
receipts for any one year, which, owing to abnormal conditions, may be greater or less than
the average, but we are not called upon to consider that point here. We should certainly not go
back beyond the railroad fiscal year 1893-4, because the evidence shows that the conditions
which produced a net profit the year before of $102,341 52 no longer exist, and if we should
put the years 1893-4, 1894-5, and 1895-6 together, the average would not be less than the
receipts of 1S94-5.
23 Nev. 283, 299 (1896) State v. Virginia & Truckee R. R. Co.
not be less than the receipts of 1894-5. So considering that year alone, the net receipts were
$27,449 53. That sum capitalized at 8 per cent represents $343,119 12, as the value of the
entire road, not taking into account the rolling stock and other personal property, consisting of
51.75 miles of main track and 26.14 miles of side track, of which amounts there are 25.65
miles of main track and 3.55 miles of side track in Washoe county. Several different ways of
figuring Washoe county's proportion of the entire valuation may be adopteddepending
upon the view taken of the side trackbut under none of them can it amount to near the sum
of $254,321, as fixed by the verdict.
In making the above estimate, and in basing it entirely upon the earning capacity of the
road, we do not wish to be understood, as we have stated before, as holding that there may
not be other considerations, which in some cases would cut quite a material figure. We
simply hold that the earning capacity is the main consideration, and that as shown in the
evidence in this case, as reported to us, we discover no others of sufficient importance to
affect the result.
The only evidence tending to support the verdict is that of the assessor. He testified that in
his judgment the road in Washoe county was worth what it was assessed for. It appeared,
however, that he had no special knowledge of the value of a railroad, nor was he any better
qualified to testify to the value of one than almost any other man in the community. He stated
that in making the assessment he had taken into consideration the business the road seemed to
be doing, certain mining developments which, at the time of the trial, had turned out to be
worthless, the material in the road and its condition; that he did not examine the reports of the
road, nor did he make any inquiry to ascertain what business it was or had been doing; that he
did not take into consideration any decrease in the earnings of the road, and that if he had
known they had greatly decreased, it would not have made any difference in his judgment of
its value; that in making up his judgment he did not take into consideration what the business
had been nor what it might be in the future.
In making the assessment he seems to have looked the property over, and to have come
to the general conclusion it was worth the value he placed upon it.
23 Nev. 283, 300 (1896) State v. Virginia & Truckee R. R. Co.
property over, and to have come to the general conclusion it was worth the value he placed
upon it. This would be all right so far as the assessment was concerned, if he hit it right,
because the law does not require the assessor to act upon any particular kind of evidence; but
when it comes to testifying as an expert, he must be able to give some reason for his
conclusions, or they are not entitled to much weight. Certainly he was able to give none here,
and we cannot consent to the claim that such evidence creates a substantial conflict with the
undisputed facts shown by the defendant.
There is also a question as to whether a part of the cost of a steel bridge across the Truckee
river, erected in the year 1894, should be deducted as a part of the expense of that year. As we
understand the facts relating to that matter, they are as follows: The old wooden bridge had
become decayed to such an extent that it was necessary to replace it with a new one. The cost
of a new wooden bridge would be $6,018; of a new steel bridge $7,812 79. The company
concluded to put in a steel bridge, and it now claims that what it would have cost to build a
wooden bridge should be deducted as a part of the annual expense of keeping up the road, and
that only the difference between the cost of the two should be charged to construction
account. We see no reason why this is not correct. Replacing a worn-out bridge would seem
to be as much an expense of keeping a road in repair as would replacing old ties, old rails or
old culverts, and in our statement of the net earnings of the road we have accordingly
deducted it. As this expense will not have to be incurred again, it is fair to suppose that the
future net earnings will be increased by that fact.
Judgment and order reversed, and cause remanded for a new trial.
____________
23 Nev. 301, 301 (1896) State v. Gray
[No. 1480.]
STATE OF NEVADA, Respondent, v. AUSTIN GRAY,
Appellant.
Criminal LawBurglarySufficiency of Evidence.In a case in which defendant was charged with burglary,
committed June 4th, by entering a barn in the night-time and stealing therefrom a saddle, a verdict of guilty
was not supported by evidence as to the time the saddle was taken, the evidence showing that it was last
seen in the barn at 6 o'clock in the evening and was discovered to be gone at 7 o'clock the next morning,
under a statute defining the night-time as the period between sunset and sunrise.
IdemTime, Essential Element of the Offense.Time is an essential element of the crime of burglary, and the
evidence, in order to support a conviction of that offense, must be of sufficient weight to convince an
impartial jury, beyond a reasonable doubt, that the defendant not only committed the larceny, but that it
was committed during the period between sunset and sunrise.
IdemLarcenyPossession of Stolen Property.The possession of stolen property alone is not sufficient to
justify a conviction for the larceny of that property.
Appeal from the Second Judicial District Court, Washoe county; A. E. Cheney, District
Judge:
Austin Gray and Frank McIntire were convicted of burglary, and Gray appeals. Reversed.
The facts sufficiently appear in the opinion.
Curler & Curler, for Appellant:
I. The mere fact of the possession of stolen property is not sufficient to authorize a
conviction. (State v. Jones and Bryan, 19 Nev. 366; State v. Ah En, 10 Nev. 277; State v.
Clifford, 14 Nev. 72.)
II. The breaking or entering the stable, so far as the evidence discloses, might have been at
any time within a period of three hours and forty-nine minutes, viz: from 6 o'clock to eighteen
minutes past 7 p.m. on June 4, or from thirty-nine minutes past 4 to 7 o'clock p.m. on June 5,
1896, and not have been in the night-time, and therefore not have been burglary, and there is
no evidence to show that the stable was entered in the night-time.
III. Burglary, and breaking and entering a house in the daytime, are two separate and
distinct offenses, and they cannot be made to constitute one and the same offense. (People v.
Taggart, 43 Cal. 81.)
23 Nev. 301, 302 (1896) State v. Gray
Robt. M. Beatty, Attorney-General, and Frank H. Norcross, District Attorney, for
Respondent.
By the Court, Bigelow, C. J.:
The defendant was convicted, with one McIntire, of the crime of burglary, alleged to have
been committed June 4, 1896, by entering a barn, in the night-time, in the town of Reno, and
stealing therefrom a saddle. One ground of the appeal is that the evidence is insufficient to
justify the verdict. In our opinion, this point is well taken. Burglary is the entering of a
building in the night-time, with or without force, for the purpose of committing certain crimes
therein. Night-time is defined by the statute as the period between sunset and sunrise. One
of the essential elements of the crime of burglary is that the felonious entry must have been in
the night-time, as above defined. The evidence showed that the saddle in question was in the
owner's barn before 6 o'clock in the evening, and that at 7 o'clock in the morning it was gone.
The door of the barn was left open during the night. That one Miss Moe lived in the same
block in which the barn was situated, but the defendants lived in another part of the town.
That early on the morning of June 5th, but how early does not appear, these three people left
the town, starting from Miss Moe's house. The next day the officers overtook them on a road
running from a place called the Cedars, about twelve miles from Reno, to the town of Reno,
traveling towards Reno, and found this saddle in the possession of the defendant Gray. When
asked where he got it, he said it belonged to McIntire; that the day before McIntire had traded
a little bay mare for it. McIntire spoke up and said that the day before a Spaniard whom he
did not know had met them near the Cedars and bantered them for a trade, and he had traded
his mare for the Spaniard's horse and saddlethat being the saddle in question.
Upon the part of the defense it was shown that, in company with Miss Moe, they left town,
as has been stated, somewhere about 6 o'clock in the morning for the Cedars, where they were
going for several purposes; that during the day McIntire traded for the saddle, as they told the
officers. They staid at a cabin at the Cedars over night, and started for Reno the next
morning, Gray having changed saddles with McIntire for the purpose of trying the new
saddle.
23 Nev. 301, 303 (1896) State v. Gray
for Reno the next morning, Gray having changed saddles with McIntire for the purpose of
trying the new saddle.
It is a well-settled rule of law that the possession of stolen property alone is not sufficient
to justify a conviction for the larceny of that property. (State v. Jones and Bryan, 19 Nev.
366; State v. Ah En, 10 Nev. 277.) Personal property passes so easily from hand to hand, that
it was found that reliance upon such evidence alone was too liable to result in the conviction
of innocent men for it to be depended upon. Generally, however, this evidence does not stand
alone. There are other circumstances usually surrounding the case having more or less
tendency to connect the possessor with the theft, if he be guilty, and where such evidence is
given, it is generally held sufficient to support the verdict. Whether such circumstances exist
here or not, we need not determine. The defendant was convicted of burglary, and, admitting
that the evidence was sufficient to support the conclusion that the defendants entered the barn
and stole the saddle therefrom, there was absolutely nothing to prove that it was done in the
night-time, and nothing from which that fact could be inferred. We may suspicion quite
strongly that it was, but suspicions, however strong, are not sufficient to convict men of
crimes. There must be evidence of every essential element of the crime, and it must be of
sufficient weight to convince an impartial jury beyond reasonable doubt.
It is evidence of the crime itself that is missing here. It is impossible to say that a burglary
was committed by anybody, and, as already stated, if we were to admit it was proven that the
defendants took the saddle, it is quite as possible that they took it after arriving at Miss Moe's
house, after sunrise, as before. We know that in June 6 o'clock in the evening is some time
before sundown, and 7 o'clock in the morning several hours after sunrise, and there is nothing
to show it was not taken during either period, instead of between them.
In State v. Watkins, 11 Nev. 30, it was shown that certain articles, which were in a room at
9 o'clock at night, were missing in the morning; that it was impossible for anyone to have
taken them without entering the room, and they were found in defendant's possession between
12 and 1 o'clock that night.
23 Nev. 301, 304 (1896) State v. Gray
o'clock that night. To the objection that the evidence did not establish the burglary, the court
said: It was necessary to show that the entry was effected in the night-time, and proof that
defendant had in his possession, outside of the house, between 12 and 1 o'clock, goods which
were in the house at 9 o'clock, and which could only have been obtained by entering the
house, was proof of an entry in the night-time, and, taken in connection with the other proof,
completely established the corpus delicti. That case illustrates what would be sufficient
proof upon this point, and, by contrast, tends to show the weakness of the evidence in this
case.
Judgment reversed and cause remanded.
____________
23 Nev. 304, 304 (1896) State v. Zichfeld
[No. 1479.]
STATE OF NEVADA, Respondent, v. C. H. ZICHFELD,
Appellant.
MarriageAt Common LawBy ContractStatutory Provisions, Directory.An act entitled An act relating
to marriage and divorce (Gen. Stats. 471, et seq.) provides that marriage is a civil contract, to which the
consent of parties, capable in law of contracting, is essential. The act contains provisions requiring a
license, directing how and by whom marriages may be celebrated, or by whom persons may be joined in
marriage, and prescribing other regulations in reference thereto, but contains no express clause of nullity,
making void marriages contracted by mutual consent per verba de praesenti, except a prior license is
obtained, or solemnization had, in accordance with its provisions: Held, that such provisions are formal and
directory, and do not render void a common-law marriage by contract per verba de praesenti.
Criminal LawBigamyCommon-Law Marriage.Defendant was married in 1893 to S. by written contract,
without the services of any of the persons authorized by the statutes to join persons in marriage.
Subsequently the parties separated by mutual consent, and thereafter the defendant, while he was so
married and knowing that the said S. was still alive, was formally married to L. by a justice of the peace of
Washoe county, this state: Held, that the marriage to S. was a valid marriage and that the subsequent
marriage to L. constituted bigamy in defendant.
IdemIntent, When Element of Crime.Where a specific intent is required by statute to constitute the crime,
such specific intent enters into the nature of the act itself, and must be alleged and proved beyond a
reasonable doubt.
IdemWhen Intent Not Element of Crime.When the statute forbids the doing of a certain thing, and is silent
concerning the intent with which it is done, a person who does the forbidden act is not guiltless because he
has no wrongful intent beyond that which is involved in the doing of the prohibited act. (State v. Gardner,
5 Nev. 377, overruled.)
23 Nev. 304, 305 (1896) State v. Zichfeld
IdemBigamyCriminal IntentEvidence.Section 127 of An act concerning crimes and punishments
(Gen. Stats. 4673) provides that bigamy consists in having two wives or two husbands at the same time,
knowing that the former husband or wife is still alive, and that nothing contained in the section shall extend
to any person or persons whose husband or wife shall have been continually absent from such person or
persons for five years prior to the second marriage, and he or she not knowing such husband or wife to be
living within that time, or to any lawfully divorced person, or to any person where the former marriage has
been by lawful authority declared void: Held, that, in a prosecution for bigamy, evidence was not
admissible to show that defendant, by his second marriage, had no criminal intent, he believing that the first
marriage had been annulled by agreement between him and his wife.
Appeal from the District Court of the State of Nevada, Washoe county; A. E. Cheney,
District Judge:
C. H. Zichfeld was convicted of bigamy, and appeals. Affirmed.
The facts sufficiently appear in the opinion.
Curler & Curler, for Appellant:
I. Under our law no person, other than a minister of any religious society or congregation
within this state who has obtained a license for that purpose, or any judge of the district court
in his district, or justice of the peace in his county, is authorized to join persons together as
husband and wife. (Gen. Stats. 473, 481, 486.)
II. That the legislature of the state of Nevada did not intend to recognize what is known as
common-law marriages is manifested by the provision of the act relating to marriage and
divorce. Section 5 of said act (Gen. Stats. 474) provides that previous to persons being joined
in marriage a license shall be obtained for that purpose from the county clerk of the county
where the persons, or one of them intending to be married, reside; and further provides that
the clerk shall not issue a license to persons under age, without the consent of the parent or
guardian personally given before the clerk or certified to under the hand of said parent or
guardian, attested by two witnesses.
III. In the case at bar the defendant and Sophia Koser did not procure any license previous
to making the contract testified to by Mr. Julien, neither did the parties declare in the
presence of a judge, minister or magistrate and attending witnesses that they took each
other as husband and wife.
23 Nev. 304, 306 (1896) State v. Zichfeld
the presence of a judge, minister or magistrate and attending witnesses that they took each
other as husband and wife. These are formalities which defendant claims to be absolutely
necessary to constitute a valid marriage in the state of Nevada, (Gen. Stats. 474-476.)
IV. The provision of the statute, making the exception that all marriages shall be deemed
to be valid, although the ceremony is performed by a person not authorized to perform it, and
prescribing how marriages shall be solemnized, precludes the contracting of the relationship
in any other manner than as provided, the legislature, having made a provision specially
legalizing marriages in certain excepted cases, must be held to have contemplated all others
not entered into according to the manner provided for by statute, and not within the
exception, as void. (Gen. Stats. 482-486; Beverlin v. Beverlin, 29 W. Va. 732; Com. v.
Munson, 127 Mass. 466; Norcross v. Norcross, 29 N. E. Rep. 506; Dunbarten v. Franklin, 19
N. H. 257; In re McLaughlin's Estate, 30 Pac. Rep. 651; Follansbee v. Wilbur, 44 Pac. Rep.
262; Stans v. Bailey, 37 Pac. Rep. 316.)
V. The records of the case further disclose that upon the trial of the case the court
excluded a contract offered to be introduced in evidence by the defendant purporting to sever
all of the marital relations existing between defendant and Sophia Koser, which contract was
drawn by T. V. Julien, the party who drew the first contract prior to the marriage of the
defendant to Lauretta Bosford. The defendant contends that the court erred in refusing to
permit the introduction of that contract, for the reason that it was admissible for the purpose
of showing that there was no intent on the part of defendant to commit a crime.
F. H. Norcross, District Attorney, for Respondent:
I. The marriage by contract of the defendant C. H. Zichfeld and Sophia Koser, made in
May, 1893, and described in the evidence, was a valid and binding marriage. (Meister v.
Moore, 96 U. S. 76-83; Hutchens v. Kimmell, 31 Mich. 126; Am. & Eng. Ency., vol. 14, 514;
Graham v. Bennet, 2 Cal. 503; Sharon v. Sharon, 75 Cal. 1-25; Post v. Post, 70 Ill. 484;
Cartwright v. McGown, 121 Ill. 388; Blanchard v. Lambert, 43 Ia.
23 Nev. 304, 307 (1896) State v. Zichfeld
Ia. 228; State v. Worthington, 23 Minn. 528; Dyer v. Brannock, 66 Mo. 391; Tenton v. Reed,
4 Johns. (N. Y.) 52; Rose v. Clark, 8 Paige (N. Y.) 573; Carmichael v. State, 12 Ohio St. 553;
Mathews v. Phoenix, 23 Am. L. R. 401; Bishop on Marriage and Divorce, 5th ed., sec. 283,
218, 227, 229; Hayes v. People, 25 N. Y. 390.)
II. To support an indictment for bigamy, it is a sufficient marriage in fact that the parties
agree to be husband and wife and cohabit and recognize each other as such. (Hayes v. People,
25 N. Y. 390; Com. v. Mash, 7 Met. (Mass.) 472; Bishop, Statutory Crimes, secs. 592-593;
Carmichael v. State, 12 Ohio, 553.)
III. Where an act forbidden by law is intentionally done, the intent to do the act is the
criminal intent which imparts to it the character of an offense. (Am. and Eng. Ency. Law,
372; 4 Am. and Eng. Ency. Law, 673, 674, 690, 691; Hayes v. People, 25 N. Y. 390; Com v.
Crowley, 40 N. E. 862; Com. v. Mash, 7 Met. 472; Com. v. Thompson, 2 Allen, 23; Davis v.
Com., 13 Bush. (Ky.) 318; State v. Whitcomb, 52 Ia. 85; State v. Goodenow, 65 Me. 30; Hood
v. State, 56 Ind. 263; People v. Smith, 20 Hun (N. Y.) 414; Wharton's Crim. Evidence, secs.
723-725, and citations; Wharton's Crim. Law, 8th ed., sec. 88.)
IV. Ignorance of statutory law is criminal negligence. (State v. Goodenow, 65 Me. 30;
Culbreth v. Culbreth, 7 Ga. 64; Dickens v. State, 30 Ga. 383; U. S. v. Fourteen Packages,
Gilp. C. C. 235.)
By the Court, Bonnifield, J.:
The appellant was convicted in the district court of the second judicial district, in and for
Washoe county, of the crime of bigamy, and appeals from the judgment of the court and order
denying his motion for new trial. The following facts are not disputed: In the year 1893 in
said county the appellant was married to Sophia Koser by written contract, without the
services of any of the persons authorized by the statute to join persons in marriage, or to
solemnize marriage. Subsequently, and in 1895, the parties separated by mutual consent and
the appellant, while he was so married to Sophia Koser and knowing that said Sophia was
still alive, was formally married to Lauretta Bosford by J. J. Linn, a justice of the peace of
Washoe county.
23 Nev. 304, 308 (1896) State v. Zichfeld
Bosford by J. J. Linn, a justice of the peace of Washoe county.
There is no contention as to the sufficiency of said first marriage to constitute a valid
marriage at the common law; but counsel for appellant contend that our statute concerning
marriages has superseded the common law and that all marriages not entered into in
conformity to the provisions of the statute are null and void. It is well settled that under the
common law the marriage relation may be formed by words of present assent (per verba de
praesenti), and without the interposition of any person lawfully authorized to solemnize
marriages or to join persons in marriage.
The first act passed by our territorial legislature was an act entitled An act adopting the
common law. At the same session of the legislature it passed the act relating to marriages, of
which the following is section 1: That marriage, so far as its validity in law is concerned, is a
civil contract to which the consent of the parties, capable in law of contracting, is essential.
Although this act contains provisions requiring a license, directing how and by whom
marriages may be celebrated, or by whom persons may be joined in marriage, and prescribing
other regulations in reference thereto, the statute contains no express clause of nullity, making
void marriages contracted by mutual consent per verba de praesenti, except a prior license is
obtained, or solemnization had in accordance with its provisions.
Authorities: The supreme court of the United States in Meister v. Moore, 96 U. S. 76
(opinion by Justice Strong), in construing the Michigan statute, which is substantially the
same as ours, said: It [the instruction] certainly withdrew from the consideration of the jury
all evidence, if any there was, of informal marriage by contract, per verba de praesenti. That
such a contract constitutes a valid marriage at common law there can be no doubt, in view of
the adjudications made in this country from the earliest settlement to the present day.
Marriage is everywhere regarded as a civil contract. Statutes in many states, it is true, regulate
the mode of entering into the contract, but they do not confer the right. Hence they are not
within the principle that, where a statute creates a right and provides a remedy for its
enforcement, the remedy is exclusive.
23 Nev. 304, 309 (1896) State v. Zichfeld
the remedy is exclusive. No doubt a statute may take away a common-law right, but there is
always a presumption that the legislature has no such intention, unless it be plainly expressed.
A statute may declare that no marriages shall be valid unless they are solemnized in a
prescribed manner, but such an enactment is a very different thing from a law requiring all
marriages to be entered into in the presence of a magistrate or a clergyman, or that it be
preceded by license, or publication of bans, or attested by witnesses. Such formal provisions
may be construed as merely directory instead of being treated as destructive of a common-law
right to form the marriage by words of present assent.
And such, we think, has been the rule generally adopted in construing statutes regulating
marriage. Whatever directions they may give respecting its formation or solemnization, courts
have usually held a marriage good at common law to be good notwithstanding the statutes,
unless they contain express words of nullity. * * * In many of the states, enactments exist
very similar to the Michigan statute, but their object has manifestly been, not to declare what
shall be requisite to the validity of a marriage, but to provide a legitimate mode of
solemnizing it. They speak of the celebration of its right rather than of its validity, and they
address themselves principally to the functionaries they authorize to perform the ceremony. In
most cases the leading purpose is to secure a registration of marriage, and evidence by which
marriages may be proved; for example, by certificate of a clergyman or magistrate or by
exemplification of the registry. In a small number of the states, it must be admitted, such
statutes have been construed as denying validity to marriages not formed according to the
statutory directions. * * *
As before stated, the statutes are held merely directory, because marriage is a thing of
common-law right, because it is the policy of the state to encourage it, and because, as has
sometimes been said, any other construction would compel holding illegitimate the offspring
of many parents conscious of no violation of law.
The Michigan statute differs in no essential particular from those of other states, which
have generally been so construed.
23 Nev. 304, 310 (1896) State v. Zichfeld
from those of other states, which have generally been so construed. It does not declare
marriages void which have not been entered into in the presence of a minister or magistrate. It
does not deny validity to marriages which are good at common law. The most that can be said
of it is that it contains implications of an intention that all marriages, except some particularly
mentioned, should be celebrated in the manner mentioned. * * *
The sixth section declares how they may be solemnized. The seventh describes what shall
be required of justices of the peace and ministers of the gospel before they shall solemnize
any marriage. The eighth section declares that in every case, that is, whenever any marriage
shall be solemnized in the manner described in the act, there shall be at least two witnesses
present besides the minister or magistrate. The ninth, tenth, eleventh, sixteenth and
seventeenth sections provide for certificates, registers and exemplifications of records of
marriage solemnized by magistrates and ministers. The twelfth and thirteenth impose
penalties upon justices and ministers joining persons in marriage contrary to the provisions of
the act, and upon persons joining others in marriage, knowing that they are not lawfully
authorized so to do. The fourteenth and fifteenth sections are those upon which most reliance
is placed in support of the charge of the circuit court. The former declares that no marriage
solemnized before any person professing to be a justice of the peace or minister of the gospel
shall be deemed or adjudged to be void on account of any want of jurisdiction or authority in
such minister or justice, provided the marriage be consummated with full belief on the part of
the persons so married, or either of them, that they have been lawfully joined in marriage.
This, it is argued, raises an implication that marriages not in the presence of a minister or
justice, or one professing to be such, were intended to be void. But the implication is not
necessarily so broad. It is satisfied if it reach not beyond marriages in the mode allowed by
the act of the legislature. The fifteenth section exempts people called Quakers' or Friends'
from the operation of the act. * * * As to them the act gives no directions. From this, also, an
inference is attempted to be drawn that lawful marriages of all other persons must be in the
mode directed or allowed [by the statute].
23 Nev. 304, 311 (1896) State v. Zichfeld
lawful marriages of all other persons must be in the mode directed or allowed [by the statute].
We think the inference is not a necessary one. Both these sections, the fourteenth and the
fifteenth, are to be found in the acts of other states, in which it has been decided that the
statutes do not make invalid common-law marriages.
We think that in the above opinion by Justice Strong a clear and proper construction of the
statute is given.
Bishop says: It is well observed by Lord Stowell that in a state of nature no forms need be
added to an agreement of present marriage to render it complete. In the opinion of the Scotch
people and of the people of a part of our states, marriage, emphatically a thing of nature, is
properly regulated by the law of nature. But in England, in other of our states, and largely in
Continental Europe, civilization has undertaken to refine and improve nature's law by denying
marriage except under specified forms and ceremonies. The consequence of which is that
shrewd rakes entrap simple girls into nature's marriage, then at their whim or exalted pleasure
cast them off, and leave a family of children under the disabilities and disgrace of bastardy.
(1 Bish. Mar., Div. and Sep., secs. 385-386.)
Bishop, after an extended review of the authorities on the subject which he cites, restates
the doctrine recognized by the courts of nearly all the states having statutes similar to ours, as
follows: Any required formal solemnization of marriage is an impediment to entering into it;
therefore, since marriage is favored in law, statutory provisions establishing forms are to be
strictly interpreted, not being encouraged by the courts. In the absence of any statute or local
usage controlling the question, only the consent treated of in our last two chapters is
indispensable to the constitution of marriage; and legislation commanding formalities, even
punishing those who celebrate marriage contrary to its provisions, or punishing the parties
themselves, will not render a marriage had in disregard of it void, unless the statute expressly
or by necessary implication declares this consequence. But it is otherwise of a statute which
authorizes the intermarriage of persons before incompetent, for in this case there is no
common law to fall back upon. And such parties must strictly conform to the legislative
direction to render their marriage valid.
23 Nev. 304, 312 (1896) State v. Zichfeld
conform to the legislative direction to render their marriage valid. In the ordinary case,
wherein the common law may be relied on except as excluded by the statute, only the
particular things which the statute declares to be nullifying if omitted need be observedall
the rest being directory, and non-compliance immaterial. (Id., sec. 449.)
In an elaborate review of the authorities and an exhaustive discussion of the question now
under consideration, the supreme court of Missouri, in Dyer v. Brannock, 66 Mo. 391, held
that a marriage by contract, without solemnization before a minister of the gospel or an
officer of the law was valid, the statute concerning marriages containing no positive
declarations that a marriage not so solemnized shall be void. Numerous other authorities
might be cited to the same effect as the above, but we deem it unnecessary.
In Fitzpatrick v. Fitzpatrick, 6 Nev. 63, this court has construed section 2 of our statute,
and the reasoning of the court is applicable to the construction of all the sections relied on by
counsel for appellant, and by the authorities holding that the statute nullifies common-law
marriages. In that case the plaintiff brought suit to have her marriage declared annulled on the
ground that she was under age and the consent of her parent or guardian had not first been
obtained. Section 2 provides that male persons of the age of eighteen years and female
persons of the age of sixteen years * * * may be joined in marriage; provided always, that
male persons under the age of twenty-one years and female persons under the age of eighteen
years shall first obtain the consent of their fathers or mothers or guardians, respectively, and
provided further, that nothing in this act shall be construed so as to make the issue of any
marriage illegitimate, if the person or persons shall not be of lawful age. The plaintiff's
counsel contended that the plaintiff, by reason of want of age, was incapable of contracting a
valid marriage, except with the consent of her parent or guardian. He argued: The statute
provides that marriage by females under the age of eighteen shall be contracted only with the
consent of their parents or guardian, and a penalty is imposed on the county clerk who shall
issue a license for the marriage of such minor without such consent. * * * Besides, the statute
of Nevada is peculiar in providing that nothing in it shall be construed to make the issue of
any marriage illegitimate, if the persons shall not be of lawful age.
23 Nev. 304, 313 (1896) State v. Zichfeld
is peculiar in providing that nothing in it shall be construed to make the issue of any marriage
illegitimate, if the persons shall not be of lawful age. Evidently the legislature intended by
this act that all marriages entered into except as provided in said act should be void. If this
was not their intention, then that portion of the act which provides against bastardizing the
issue of such marriage is mere surplusage and without meaning, for the reason that it would
be the merest folly to provide by statute that issue of a valid marriage shall not be
illegitimate.
The court held, however, that: That proviso did not indicate any such intent as claimed by
counsel, as it only relates to issue of persons not of lawful age, that is, eighteen and sixteen
years in males and females, respectively. * * * That by the common law, and the statute law
of this state, marriage is held to be a civil contract. To render the contract valid, the parties
must be able and willing to contract. At common law the age of capacity to make the contract
of marriage was fixed at fourteen years for males, and twelve years for females. * * *
Marriage before such age is voidable at the election of either party, on arriving at the age of
consent, if either of the parties be under age when the contract is made. (2 Kent, 44.) The
statute of this state does not alter the common law, save by substituting the ages therein
named for the common-law ages, and it has generally, if not universally, been held, in
construing similar statutes, that, in the absence of any provision declaring marriage made in
violation of the statutory proviso void, it was a binding and valid contract, upon the theory
that persons of the consenting or lawful age, voluntarily entering into a contract, should be
held thereto, precisely as they would be held to any other lawful contract voluntarily assumed
at the legal age or upon majority. It will be observed that the court held, in effect, that in the
absence of any provision of the statute declaring the marriage of a minor, without the consent
of parent or guardian, void, the marriage was valid, notwithstanding the explicit requirements
of the statute that such consent shall first be obtained.
Our statute does not expressly, nor by necessary implication, as we view it, render a
marriage had in disregard of its prescribed formalities void.
23 Nev. 304, 314 (1896) State v. Zichfeld
tion, as we view it, render a marriage had in disregard of its prescribed formalities void. We
are to presume that the legislature knew that marriages by contract are valid at common law;
that they have thus been entered into from time immemorial, and are liable to continue to be
so contracted, and if the legislature intended to prohibit such marriages and render them void,
and thus entail upon the parties conscious of no wrong-doing, and their children, such evil
consequences as must necessarily result therefrom, it would have expressed such intent in
such terms as need no construction, and about which even laymen could have no doubt, and
would thus have given due notice to all of the invalidity of informal marriages entered into
simply by contract.
It seems to us clearly that the legislature, by the terms used in the first section of the
marriage act, intended to specifically recognize the common law in respect to marriages. It
therein declares that marriage, so far as its validity in law is concerned, is a civil contract to
which the consent of the parties capable in law of contracting is essential. If the legislature
had intended that compliance with any of the provisions of the succeeding section should also
be essential to its validity in law, we are of opinion it would have so expressed itself, and not
left the definition of a valid marriage in law a civil contract to which the consent of the
parties capable in law of contracting is essential.
We are of opinion that the subsequent sections were enacted for the purposes named above
in the opinion delivered by Justice Strong, and for the additional purpose of accommodating
the views of those who do not believe in marriages by contract simply, and would not be
satisfied with entering into the marriage relation except by some mode prescribed by the
statute, and for the purpose of giving to the forms and ceremonies in practice among many
classes statutory recognition.
While any form or ceremony the parties interested may choose is recognized by the statute,
no particular form is required. The elements essential to a common-law marriage are
requireda contract per verba praesenti. In the language of the statute, the parties shall
declare that they take each other as husband and wife," not necessarily by word of mouth,
but in some manner to declare such assent.
23 Nev. 304, 315 (1896) State v. Zichfeld
other as husband and wife, not necessarily by word of mouth, but in some manner to declare
such assent. From the great preponderating weight of authority and reason, we are of opinion
that all other provisions of the statute are directory, so far as the validity of the marriage is
concerned, and that a marriage by contract between parties competent to enter into that
relation with each other is valid under our statute.
We, therefore, hold that the said marriage of the appellant to Sophia Koser is valid.
Errors Assigned: On the 14th day of September, 1895, about three weeks before the
alleged second marriage of the defendant, he and his first wife, Sophia, entered into a written
agreement between themselves in settlement of their property rights and agreed to then and
there separate, and further agreed in terms as follows: The parties hereto, each with the
other, covenant and agree to sever their marital relations, and by these presents do sever their
marital relations. Counsel for defendant offered to introduce this agreement in evidence, to
which the district attorney objected on the ground that it was incompetent, irrelevant and
immaterial. The court sustained the objection. This ruling is assigned as error. Counsel
argues, in substance, under the authority of State v. Gardner, 5 Nev. 377, that the agreement
was proper evidence to go to the jury, as tending to show that there was no criminal intent on
the part of the defendant in entering into the second marriage, he believing that the agreement
had annulled the first marriage.
Criminal Intent: The rule adopted by the majority of the court in the said Gardner case, to
the effect that where a statute forbids the doing of a certain thing, and is silent concerning the
intent with which it is done, a person commits no offense, in law, though he does the
forbidden thing, within all the words of the statute, if he had no evil or wrongful intent
beyond that which is involved in the doing of the prohibited act, is disapproved, and the
decision to that effect is hereby overruled. We recognize the well-settled rule that, where a
specific intent is required by statute to constitute the crime, such specific intent enters into the
nature of the act itself, and must be alleged and proved beyond a reasonable doubt.
23 Nev. 304, 316 (1896) State v. Zichfeld
itself, and must be alleged and proved beyond a reasonable doubt.
The statute under which the defendant was indicted, tried and convicted provides:
Bigamy consists in the having of two wives or two husbands at one and the same time,
knowing that the former husband or wife is still alive. If any person or persons within this
state, being married, or who shall hereafter marry, do at any time marry any person or
persons, the former husband or wife being alive, the person so offending shall be punished. *
* * Nothing herein contained shall extend to any person or persons whose husband or wife
shall have been continually absent from such person or persons for the space of five years
prior to the said second marriage, and he or she not knowing such husband or wife to be
living within that time. Also, nothing herein contained shall extend to any person that is, or
shall be, at the time of such marriage, divorced by lawful authority from the bonds of such
former marriage, or to any person where the former marriage hath been by lawful authority
declared void. There is no intent involved in this case except the doing of the thing
forbidden to be done by the statute.
Whatever one voluntarily does, he, of course, intends to do. If the statute has made it
criminal to do any act under peculiar circumstances, the party voluntarily doing that act is
chargeable with the criminal intent of doing it. (Commonwealth v. Mash, 7 Metcalf, 472.)
There was the intent to marry a second time, not knowing the husband to be dead, and
who had been absent for about one year only, and this is the criminal intent which is of the
essence of the offense. (67 Ala. 84.)
Upon indictment for selling intoxicating liquor to a minor, without authority from his
parents or guardian, it does not matter that the defendant did not know that such person was a
minor. He is bound to know whether such person is a minor or not. (Farmer v. People, 77
Ill. 322.)
A statute of North Carolina authorized the sheriff to issue a license to sell liquor by retail,
only on an order of the board of commissioners, upon application of the person seeking the
license, and made it a criminal offense to retail liquor without a license. On the 1st day of
January, 1883, the board, upon application of Voight, ordered the license to issue, and on
the same day revoked the order.
23 Nev. 304, 317 (1896) State v. Zichfeld
the board, upon application of Voight, ordered the license to issue, and on the same day
revoked the order. Notwithstanding this revocation, the sheriff afterwards, and on the last day
of said January, issued the license, Voight knowing when he received the license that the
order for its issuance had been revoked. Voight was prosecuted criminally for retailing liquor
without a license. The trial court charged the jury that if the jury were fully satisfied that the
license was issued after the 1st of January, 1883, and defendant knew it was subsequent to the
revoking order, and thereafter sold liquor as charged, * * * they should convict,
notwithstanding, at the time of the act, he had possession of the license. The supreme court
approved the instruction, and said: * * * Nor is it a defense to a criminal accusation that the
defendant did not intend to violate or evade the law, or supposed he had a right to sell, when
he intended to do, and did do, the criminal and forbidden act. The criminal intent is
inseparably involved in the intent to do the act which the law pronounces criminal. (State v.
Voight, 90 N. C. 741.)
The provisions of a statute in Massachusetts are as follows: Whoever falsely makes * * *
any certificate of nomination or nomination paper, or any part thereof, or files any certificate
of nomination or nomination paper knowing the same, or any part thereof, to be falsely made
* * * shall be punished, etc. Connelly was convicted under this statute, first, for falsely
making nomination papers; second, for filing the same. On appeal, the supreme judicial court
held: No fraudulent intent is necessary to constitute the offense. It is immaterial that the
defendant did not intend to break the law. It is enough that he did the things made offenses by
the statute. (Commonwealth v. Connelly, 40 N. E. 862.)
We cite the following additional authorities on the question of intent, which are in line
with the ones given above: State v. Walls, 7 Blackf. 572; The Brig Ann, 1 Gall. 62; Regina v.
Woodrow, 15 Mees. & W. 404; Myers v. State, 1 Conn. 502; State v. Goodenow, 65 Me. 30;
52 Iowa, 85; Hood v. State, 56 Iowa, 263; Davis v. Commonwealth, 13 Bush. 318; Wharton's
Crim. Ev., 8th ed., sec. 725, and cases there cited.
23 Nev. 304, 318 (1896) State v. Zichfeld
We, therefore, hold that the court did not err in excluding said agreement of the appellant
and Sophia Zichfeld.
This opinion disposes of all the alleged errors; and, finding no error of the court in the
record, the judgment and order appealed from are affirmed.
____________
23 Nev. 318, 318 (1896) Hayes v. Davis
[No. 1471.]
WILLIAM HAYES, Respondent, v. W. L. DAVIS and L. S. SCOTT, A. TRAVIS, W. C.
GALLAGHER, The Board of County Commissioners of White Pine County, Appellants.
CountiesLost Certificate of IndebtednessIssuance of DuplicateInjunction.Where an act of the
legislature authorizes and requires the county commissioners to instruct the auditor of the county to issue to
the owner of the original a certificate of indebtedness similar in amount and in lieu of one that has been
lost, the issuance of the certificate cannot be restrained upon the ground that it is the creation of an unjust
indebtedness against the county, or, in any just sense, an injury to taxpayers.
EquityWhen Court Will Not Exercise Its Equitable Powers.A court of equity will not exercise its equitable
powers to restrain a county from doing what any honest debtor should do, thereby relieving the county
from the burden of having to pay a debt honestly owing by the county.
Appeal from the District Court of the State of Nevada, White Pine county; G. F. Talbot,
District Judge:
Bill by William Hayes against W. L. Davis and the Board of County Commissioners of
White Pine county, to restrain the issuance of a duplicate certificate of indebtedness. From a
judgment in favor of plaintiff, defendants appeal. Reversed.
The facts sufficiently appear in the opinion.
Thomas Wren and Frank X. Murphy, for Respondent.
Henry Rives, Robt. M. Clarke and J. Poujade, for Appellants.
By the Court, Belknap, J.:
By the act relating to boards of county commissioners, as amended at the session of 1893,
it is provided that any resident and taxpayer of the county may file written objections to the
allowance of any claim or demand pending before the board of county commissioners.
23 Nev. 318, 319 (1896) Hayes v. Davis
board of county commissioners. It is then made the duty of the board to lay such claim or
demand upon the table for a definite period, not less than ten days, and at the expiration of
such time it may be considered, unless proceedings be instituted in a court of competent
jurisdiction to determine the validity of such claim or demand. (Stats. 1893, p. 120.)
The plaintiff being a resident and taxpayer of the county brought this suit, under the
provisions of the foregoing law, for the purpose of restraining the board of county
commissioners from acting in accordance with the provisions of an act entitled An act for
the relief of W. L. Davis. (Stats. 1893, pp. 22, 23.)
The facts are contained in an agreed statement hereinafter mentioned, filed at the trial, and
upon which the case was tried and decided.
In addition to those facts plaintiff alleged that the issuance of said scrip to said W. L.
Davis, as aforesaid, would cause said plaintiff irreparable damage, and plaintiff is informed
and believes would be illegal and void and lead to vexatious, expensive and protracted
litigation.
The agreed statement of facts is substantially as follows: The plaintiff being indebted to
the defendant in the sum of $2,000, executed two promissory notes for $1,000 each in his
favor, and pledged, among other securities for their payment, a certificate of indebtedness
issued by the county of White Pine for $3,421 25. The certificate while in the possession of
defendant was lost, mislaid or stolen. Thereafter suit was commenced by defendant Davis as
plaintiff against the plaintiff in the present action as defendant to recover the amount of one
of the notes. The suit was compromised and dismissed upon the terms set forth in an
agreement, a copy of which is referred to as an exhibit in this case. By this agreement
defendant Davis was to surrender one of the promissory notes to the plaintiff, and credit the
other with the payment of $464, provided that the lost certificate be not found and restored to
appellant or reissued to him, but if the certificate be subsequently found or reissued, it was to
be redeemed by plaintiff upon payment of $1,539 60.
Appellant further agreed to use due diligence in finding the lost certificate, or, failing to
find it, present the matter to the consideration of the legislature of the state with the view
that a statute be enacted authorizing the issuance of a certificate in lieu thereof.
23 Nev. 318, 320 (1896) Hayes v. Davis
the consideration of the legislature of the state with the view that a statute be enacted
authorizing the issuance of a certificate in lieu thereof. The certificate was not found, and at
the session of the legislature of 1893 a law was enacted entitled An act for the relief of W. L.
Davis, by which the county commissioners of the county of White Pine were authorized and
required to instruct the auditor of the county to issue to defendant a certificate of indebtedness
similar in amount and in lieu of the one that had been lost. (Stats. 1893, pp. 22, 23.)
At the trial the district court enjoined the board of county commissioners from proceeding
under the statute. This ruling is assigned as error.
In State v. Gallagher, 22 Nev. 80, we took occasion to state that a resident taxpayer could
invoke the interposition of a court of equity in a proper case, quoting from the opinion of the
supreme court in Crampton v. Zabriskie, 101 U. S. 601, as follows: Of the right of resident
taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of
the moneys of the county, or the illegal creation of a debt, which they, in common with other
property owners of the county, may otherwise be compelled to pay, there is, at this day, no
serious question. The right has been recognized by state courts in numerous cases; and from
the nature of the powers exercised by municipal corporations, the great danger of their abuse,
and the necessity of prompt action to prevent irremediable injury, it would seem eminently
proper for courts of equity to interfere, upon the application of the taxpayers of a county, to
prevent the consummation of a wrong, when the officers of these corporations assume, in
excess of their powers, to create burdens upon property holders.
In such cases, says Beach, this equity jurisdiction usually rests upon fraud, breach of
trust, multiplicity of suits, or the inadequacy of the ordinary remedies of law. (2 Law of Inj.,
p. 1300.)
None of these grounds are applicable here. No fraud is alleged, nor illegal debt
contemplated. There is no question that, both legally and equitably, the county owes some
one this money; neither is there any question, under the agreed facts, that it is owing to the
plaintiff, Davis, or, at least, that he is the present legal owner of the claim.
23 Nev. 318, 321 (1896) Hayes v. Davis
facts, that it is owing to the plaintiff, Davis, or, at least, that he is the present legal owner of
the claim.
Issuing the duplicate certificate, whether legal or illegal, creates no additional burden upon
the taxpayers further than what justly exists now. If the law under which the board proposes
to act is unconstitutional, and that body has no authority to issue a duplicate certificate where
the original has been lost, then their action will be a nullity, and there is no occasion for a
court to interfere with an injunction. (McCoy v. Briant, 53 Cal. 247.)
But if, on the other hand, the certificate will have some validity, and will, in Davis' hands,
constitute evidence of the county's indebtedness to him, which certainly exists, then it is
simply doing what any honest debtor should do, and such action is not the creation of an
unjust indebtedness against the county, to prevent which a court of equity should exercise its
equitable powers. The plaintiff's demand is an unconscionable one, which such a court should
not assist him in effectuating. (Scranton's Appeals, 122 Pa. St. 175.)
Neither will such action constitute, in any just sense, any injury to the plaintiff or any other
taxpayer. Of course, if Davis cannot collect the money which seems due him without a
certificate or warrant, then preventing the issuance of a duplicate certificate will, under the
circumstances, relieve the county, and consequently the taxpayers, from the burden of having
to pay it, even though honestly owing by the county, but this again is a result that the plaintiff
can hardly expect a court of equity to assist him in consummating.
Judgment reversed, and cause remanded.
____________
23 Nev. 322, 322 (1896) Manning v. Gignoux
[No. 1482.]
FLORENCE M. MANNING, Respondent, v. J. E.
GIGNOUX, Appellant.
PracticeNew TrialNewly-Discovered EvidenceDiligence.In an action for plaintiff's care and support of
defendant's two minor sons under a contract therefor, defendant claimed that at a certain time the contract
was canceled. One of the sons, who had returned to his father, testified to statements of plaintiff, made in
the presence of both sons, that the contract was canceled, as claimed by defendant; and defendant's wife
testified to seeing letters containing statements which showed the same fact. On the production of such
evidence, plaintiff's counsel moved to continue the case, so that the evidence of plaintiff and defendant's
other son, who resided in New York, could be produced to controvert such evidence. A motion by plaintiff,
on the ground of newly-discovered evidence, for a new trial, was supported by affidavits showing that
plaintiff and the son residing with her would testify to the facts disclosed in the motion and affidavit for
continuance, and legal excuse for their absence from the trial was shown. The record disclosed great
diligence on the part of the plaintiff in preparing her case for trial, and in producing all the evidence known
to her, or which could have been known to her, with respect to the alleged facts testified to by defendant's
wife and son, prior to the giving of said testimony by them, unless the said alleged facts are true, the truth
of which the plaintiff denies by affidavits on motion for new trial: Held, that a new trial was properly
granted.
Appeal from the District Court of the State of Nevada, Lyon county; C. E. Mack, District
Judge:
Action by Florence M. Manning against J. E. Gignoux to recover a balance alleged to be
due plaintiff for the care and support of defendant's two minor sons, in which there was a
judgment dismissing the action, and in favor of defendant for costs. From an order granting a
new trial on the ground of newly-discovered evidence, defendant appeals. Affirmed.
The facts sufficiently appear in the opinion.
Robt. M. Clarke, for Appellant:
I. To warrant the granting of a new trial upon the ground of newly-discovered evidence,
the evidence must be new; it must be newly discovered; it must be material and controlling; it
must not be cumulative; it must not be impeaching merely; and diligence must be shown on
the part of the moving party. (Gen. Stats. 3217; Hayne on New Trials, secs. 88-92; Bartlett v.
Hoyden, 3 Cal. 57; Meyer v. Mowrey, 34 Cal. 516; Hobler v. Cole, 49 Cal. 251; Stokes v.
Monroe, 36 Cal.
23 Nev. 322, 323 (1896) Manning v. Gignoux
Cal. 388; State v. Ray, 53 Mo. 345; Berry v. State, 10 Ga. 511; Goff v. Milholland, 33 Mo.
203; Heintz v. Mertz, 58 Mo. App. 405; 67 Mo. 59; Mayor of Liberty v. Burns, 114 Mo. 43.)
II. A motion for a new trial, on the ground of newly-discovered evidence, is viewed with
distrust. (Hobler v. Cole, 49 Cal. 250; Arnold v. Skaggs, 35 Cal. 684; People v. Demasters,
109 Cal. 607.)
III. The order granting a new trial cannot be supported upon the ground that the court
denied plaintiff a continuance: (1) Because the new trial was not granted upon that ground
(Hayne on New Trials, sec. 167, 284); (2) because the affidavit for continuance upon the
ground of surprise was insufficient; the court did not err in denying the continuance. (6 Cal.
228; 24 Cal. 85; 41 Cal. 494; 21 Ind. 344.)
Langan & Knight, for Respondent:
I. That the evidence sought to be presented by plaintiff is newly discovered, is clearly
shown by the affidavits. Her diligence also appears therefrom and from the record. The new
evidence which respondent would produce is clearly material; and, while it is in part
impeaching testimony, in its nature it also has a direct bearing upon the issues in the case, and
it is not merely cumulative. This new evidence is also controling [controlling]at least, it is
such that it must be admitted that a trial court or jury might deem it so, which is all that need
be said of it in order to render it imperative that this court sustain the order appealed from.
II. Applications for a new trial on the ground of newly-discovered evidence, etc., are
addressed to the discretion of the court, and its order granting or refusing the motion will not
be disturbed except for a plain abuse of discretion. (Hayne on New Trial, 87, 289; Spottswood
v. Wier, 22 Pac. 289; 16 Am. and Eng. Ency. Law, 516, 692, and notes and citations; Wood v.
Donville R. Co., 1 App. D. C. 165; Seegers v. McCreery, 19 S. E. 696; Cleveland C. C. & St.
L. Ry. Co. v. Davis, 36 N. E. 778; Slater v. Drescher, 25 N. Y. 153; 72 Hun, 425.)
III. We would direct the court's attention to the ground stated on motion for a new trial
accident and surprise which ordinary prudence could not have guarded againstand we
maintain that for the reasons set forth above in presenting the matter of
newly-discovered evidence, the order appealed from is also sustained on this ground.
23 Nev. 322, 324 (1896) Manning v. Gignoux
and we maintain that for the reasons set forth above in presenting the matter of
newly-discovered evidence, the order appealed from is also sustained on this ground. The
evidence of defendant, his wife and son was a decided surprise to plaintiff, and because of the
materially different testimony of defendant in his deposition taken before the trial. It was also
such in its nature that no amount of prudence before trial could have guarded against it, and it
could have been met at the trial only upon the continuance asked for and which the court
refused to grant. Applications to courts for new trials on this ground are addressed to
discretion, and orders made thereon will not be disturbed except for plain abuse of discretion.
(Authorities cited, supra.)
IV. Reasonable diligence only need be shown to discover and produce evidence at the
trial. (Hayne on New Trial, 92.)
V. Upon principle and authority an order granting a new trial will not be so readily
disturbed as one refusing to do so. In the one case a mere privilege to determine a dispute is
granted: in the other case the dispute is settled, whether correctly or not, forever. (16 Am. and
Eng. Ency. Law, 516, 683, note 2, and cases cited; Alt v. Chicago & N. W. Ry. Co., 57 N. W.
1126; Hodges v. Bierlein, 56 N. W. 811.)
By the Court, Bonnifield, J.:
The plaintiff brought this action to recover the sum of $3,320 of the defendant, balance
due on contract between the parties for plaintiff's care and support of defendant's two minor
sons, as alleged in the complaint.
The following facts are not disputed: That on or about the 4th day of January, 1885, the
parties entered into a contract with each other by the terms of which the plaintiff agreed to
take, care for and maintain the minor sons of the defendant, Fred and John, for the monthly
sum of $80, exclusive of doctor bills; that the defendant agreed on his part to pay the plaintiff
for said care, etc., the said sum of $80 per month, exclusive of doctor bills; that the plaintiff
took said children under said contract on or about _____ day of January, 1885; and from that
date up to the 1st day of August, 1893, cared for and supported them both; that Fred, on the
lst day of August, 1S93, went to the defendant in Nevada on a visit, and did not return to
the plaintiff; that John remained with plaintiff, and had her care and support till the 1st
day of September, 1S94, and not since; that prior to June 1, 1SS7, the defendant paid the
plaintiff for all of her said services rendered up to that date; that for the plaintiff's said
services rendered after June 1, 1SS7, the defendant has paid her $3,200 and no more.
23 Nev. 322, 325 (1896) Manning v. Gignoux
day of August, 1893, went to the defendant in Nevada on a visit, and did not return to the
plaintiff; that John remained with plaintiff, and had her care and support till the 1st day of
September, 1894, and not since; that prior to June 1, 1887, the defendant paid the plaintiff for
all of her said services rendered up to that date; that for the plaintiff's said services rendered
after June 1, 1887, the defendant has paid her $3,200 and no more.
Alleged Facts Denied: The plaintiff alleges in her complaint, in substance, and her
contention is, that all of her said services in the care and support of said children were
rendered under and in pursuance of the terms of said contract of date January 4, 1885, and not
otherwise. The defendant denies that she rendered any services under said contract after
September, 1890, and in his answer he alleges: That on or about the _____ day of
September, 1890, said defendant, having made preparations and arrangements to take,
educate and care for and support the said minor children, terminated said arrangement, and
gave said plaintiff notice thereof, and then demanded the custody and to have the said minor
children, which demand plaintiff refused, and ever since has refused. And defendant avers
that said plaintiff then terminated of her own will, the said arrangement, and insisted on
keeping, caring for and maintaining and supporting the said minor children, contrary to
defendant's desire, and detained and kept them away from defendant, the said Fred Gignoux
until the 1st day of August, 1893, and the said John Gignoux until the present timeto his
great disappointment, injury and damage, and to the injury of said children.
The main contest in the trial of the case was as to the termination of the contract.
The case was tried by the court without a jury. The court found as follows: I find from the
evidence that in the year 1885 plaintiff and defendant entered into an express contract,
whereby defendant was to pay plaintiff the sum of $80 per month for the care and support of
his two sons; that under said express contract plaintiff supported and cared for the two sons of
defendant until September, 1890, at which time said express contract was terminated; that
defendant paid plaintiff in full under said express contract to October 1, 1S90.
23 Nev. 322, 326 (1896) Manning v. Gignoux
paid plaintiff in full under said express contract to October 1, 1890. I further believe from the
evidence that plaintiff cared for and supported the said sons of defendant for some time after
October 1, 1890, for which defendant is liable on an implied contract for what the same is
reasonably worth. As a conclusion from the foregoing, let judgment be entered in favor of the
defendant for his costs in defending this action. Judgment was entered dismissing the action
and in favor of the defendant for his costs. The plaintiff moved for a new trial, and the court
granted the motion. The defendant appeals from the order granting a new trial.
Plaintiff's motion for a new trial was based on the following grounds: (1)
Newly-discovered evidence, material for the plaintiff, which she could not with reasonable
diligence have produced at the trial. (2) Insufficiency of the evidence to justify the decision of
the court. (3) That the decision of the court is against law. (4) Errors of law occurring at the
trial and excepted to by the plaintiff. (5) Accident and surprise which ordinary prudence could
not have guarded against. The application for new trial for the causes named in the first and
fifth subdivisions above was made upon affidavits, and for the other of said causes it was
made on plaintiff's statement on said motion. No counter affidavit was filed.
The court in ruling upon the motion stated and ruled as follows: I have examined and
considered the evidence submitted at the trial of this case and the affidavits offered in support
of the motion for a new trial. In my judgment the affidavits disclose evidence material to the
issue of this case on the part of plaintiff which she could not with reasonable diligence have
discovered and produced on the trial. It is therefore ordered that the judgment herein entered
be set aside and a new trial granted.
From said affidavits it appears that, in support of the allegations of his answer to the effect
that said agreement on which this action was brought had been terminated by both parties, the
defendant introduced as a witness at the trial Fred Gignoux, one of his said sons, who
testified, in substance: That about four or five years ago the plaintiff, in the presence of and in
connection with witness and his brother, John Gignoux, at Albany, New York, and in
plaintiff's residence, stated to them that the defendant in this action had written to her
demanding that said witness and his brother be sent to him; that plaintiff then and there
asked the witness and his brother if they desired to go to said defendant, and they
answered that they did not, and that plaintiff thereupon said that they need not; that they
might remain with her so long as she had anything with which to maintain them, and that
she would resist any effort to take them from her; that she was their guardian in the state
of New York, and would fight in the courts, if necessary; and that the plaintiff further
stated in said conversation to witness and his said brother that she had written to the
defendant and told him that she would not give said John Gignoux and Fred Gignoux up,
and was prepared to go to law.
23 Nev. 322, 327 (1896) Manning v. Gignoux
brother, John Gignoux, at Albany, New York, and in plaintiff's residence, stated to them that
the defendant in this action had written to her demanding that said witness and his brother be
sent to him; that plaintiff then and there asked the witness and his brother if they desired to go
to said defendant, and they answered that they did not, and that plaintiff thereupon said that
they need not; that they might remain with her so long as she had anything with which to
maintain them, and that she would resist any effort to take them from her; that she was their
guardian in the state of New York, and would fight in the courts, if necessary; and that the
plaintiff further stated in said conversation to witness and his said brother that she had written
to the defendant and told him that she would not give said John Gignoux and Fred Gignoux
up, and was prepared to go to law.
It likewise appears from said affidavits that the defendant introduced Mary L. Gignoux,
defendant's wife, as a witness at the trial, who testified, among other things, in substance, that
she saw a letter in the hands of the defendant written by him to the plaintiff in the month of
September, 1890, wherein defendant stated to plaintiff that he wanted his boys out here; that
he would not and could not pay for them any longer, to which plaintiff replied in a letter
received in or about October, 1890, and shown to witness by defendant, that she could not
part with the dear boys, that money was no object to her, and while she had a dollar she
would not give them up.
The alleged newly-discovered evidence disclosed by said affidavits with respect to the
alleged facts testified to by Fred and Mary L. Gignoux, respectively, is the proposed evidence
of John Gignoux, the brother named in Fred's said testimony, and the proposed evidence of
the plaintiff.
The said proposed testimony of John Gignoux, if produced, will tend to show that at or
about the time and place named in Fred's said testimony, the plaintiff did state and say to said
Fred and John that their father wrote of his intention to send for them, or that he was about to
send for them to come to Nevada, but that the plaintiff did not state or say to them at any time
that defendant had sent for them or demanded their custody or control; that the plaintiff
did not state at said time, or at any time, to them or either of them, in the presence or
hearing of John, that she had refused or that she would refuse by letter or otherwise to
comply with the said or any demand of the defendant for the care, custody, control or
removal of said John and Fred, or either of them, or at all; that the plaintiff did not in any
conversation that ever occurred, in the presence or hearing of John, with himself and his
said brother, or at all, state or say that she was their guardian, or of either of them, in
New York or elsewhere, or that she would contest or fight at law, or in any way, any
attempt or effort of the defendant or any one else to take them, or either of them, from
the plaintiff.
23 Nev. 322, 328 (1896) Manning v. Gignoux
them or demanded their custody or control; that the plaintiff did not state at said time, or at
any time, to them or either of them, in the presence or hearing of John, that she had refused or
that she would refuse by letter or otherwise to comply with the said or any demand of the
defendant for the care, custody, control or removal of said John and Fred, or either of them, or
at all; that the plaintiff did not in any conversation that ever occurred, in the presence or
hearing of John, with himself and his said brother, or at all, state or say that she was their
guardian, or of either of them, in New York or elsewhere, or that she would contest or fight at
law, or in any way, any attempt or effort of the defendant or any one else to take them, or
either of them, from the plaintiff.
The proposed testimony of the plaintiff, if produced, would tend to prove that she never
was the guardian at any place of said John and Fred Gignoux, or either of them; that she did
not at the time or place alleged by Fred Gignoux in his said testimony, or at any other time or
place, or at all, state that she would fight, oppose or contest it at law, or otherwise, if any one
attempted to take said boys, or either of them, from her; that plaintiff did not at any time, in
any manner, state to Fred and John, or either of them, that she had refused, or that she would
refuse, by letter, or otherwise, to comply with defendant's said demand, or any demand of his,
for the surrender and delivery or sending of said boys, or either of them, to defendant, or to
any one else; that the plaintiff never received any letter from the defendant described by Mary
L. Gignoux as being written by the defendant to the plaintiff, and never saw such letter in
which the defendant stated that he would not and could not pay for themthe boysany
longer, or any letter containing any such declaration in form, substance or effect; that the
plaintiff did not reply to any such letter as testified to by said Mary L. Gignoux, or to any
other letter, that she could not part with the dear boys, or that money was no object to her, or
that while she had a dollar she would not give them up; that the plaintiff did not write or
send, or cause to be written or sent, to or for the defendant, or any one else, any letter at any
time, or at all, in words or substance, to the effect that she could not or would not part with
or give up said boys, John and Fred, or either of them, or that money was no object to her,
or that while she had a dollar she would not give them up.
23 Nev. 322, 329 (1896) Manning v. Gignoux
could not or would not part with or give up said boys, John and Fred, or either of them, or
that money was no object to her, or that while she had a dollar she would not give them up.
We agree with the trial court in its expressed opinion that the affidavits disclose evidence
material to the issue on the part of the plaintiff in this case which she could not with
reasonable diligence have discovered and produced on the trial. We are of opinion that the
said proposed evidence hereinabove named is new, was newly discovered, is not merely
cumulative, is not merely impeaching evidence, and that it is such as to render a different
result probable on a retrial.
The plaintiff, before the case was finally submitted, and at the first practicable moment
after the witnesses Fred and Mary L. Gignoux had testified to the alleged facts named by
them, moved the court for a continuance of the further trial of the case for a period of six
weeks, upon affidavit, and upon substantially the same grounds and showing as appear in her
affidavits for new trial, which motion was denied. The record discloses great diligence on the
part of the plaintiff and her attorneys in preparing the case for trial, and in producing all the
evidence known to them, or which could have been known to them, with respect to the
alleged facts testified to by Fred and Mary L. Gignoux, prior to the giving of said testimony
by them, unless the said alleged facts are true, the truth of which the plaintiff and John
Gignoux deny by their affidavits on motion for new trial.
The plaintiff and John Gignoux are residents of the state of New York, and were absent
from Nevada during all the time of the pendency of this action and the trial thereof in the
court below, and good and legal excuse for such absence appears in the record.
We are of opinion that the order granting a new trial should be affirmed on the ground and
for the reason stated by the trial court in its opinion granting the same, which appears
hereinabove. We do not deem it necessary to pass upon or consider any of the other grounds
upon which plaintiff based her motion for new trial, and do not do so. The errors, if any, will
not likely be repeated.
The order granting a new trial is affirmed.
____________
23 Nev. 330, 330 (1896) Robinson v. Kind
[No. 1472.]
IRENE M. ROBINSON, Respondent, v. HENRY KIND
and EUGENE HOWELL, Appellants.
Defect of PartiesTrust DeedAction to Set Aside.Where several owners of property convey it to a trustee
upon specified terms and conditions, and one of them brings an action against the trustee to have the trust
deed annulled and the trustee enjoined from acting or claiming thereunder, the other owners are necessary
parties.
IdemEquitable DoctrineBeneficiaries of Trust Who Refuse to Join as Plaintiffs, to Be Made
DefendantsMultiplicity of Suits.In an action by a beneficiary against the trustee, when the right
asserted, if it exists at all, is also held by all other parties similarly situated with the one who sues, and the
decision would in fact determine all their rights, the equitable doctrine primarily requires that the
beneficiaries should unite as plaintiffs; but if any refuse to join, they should be made defendants, in order
that the trustee may not be subject to a multiplicity of suits when the whole controversy could be decided in
one.
IdemParties in InterestMultiplicity of Suits.Plaintiff sued defendants, among other things, to have
canceled a certain deed or instrument of trust, executed by plaintiff and two other persons as parties of the
first part to one of the defendants as party of the second part, and to have defendants and each of them
perpetually enjoined from asserting or acting or claiming under the same. The complaint was demurred to,
one of the grounds of demurrer being that there was a defect of parties plaintiff: Held, that a complete and
binding decree cannot be made as to all the parties directly interested, without the said two other
beneficiaries being brought into court by being made parties, and that otherwise a multiplicity of suits
cannot be avoided. The demurrer should therefore have been sustained.
IdemWaiverJudicial Duty.Under Gen. Stats., sec. 3039, which provides, among other things, that when
a complete determination of the controversy cannot be had without the presence of other parties, the court
must order them to be brought in, it is not a matter of discretion but of judicial duty, and if the parties to
the record neglect to raise the question, the court, upon its own motion, will supply the omission; hence, the
contention that by answering the complaint and going to trial, the demurrer of defendants upon the ground
of defect of parties was waived, is not tenable.
ON REHEARING.
PracticeProcessService by PublicationNon-Resident Defendant.An action to cancel a deed of real and
personal property located in part in the county in which the action is brought, is an action, in part, for the
recovery of real property, or an estate or interest therein, under Gen. Stats., sec. 3040, and, being
substantially a proceeding in rem, may be prosecuted against a non-resident by publication.
Appeal from the District Court of the State of Nevada, Eureka county; A. L. Fitzgerald,
District Judge: Action by Irene M.
23 Nev. 330, 331 (1896) Robinson v. Kind
Action by Irene M. Robinson against Henry Kind and Eugene Howell to set aside a trust
deed and for an injunction. From a judgment in favor of plaintiff, defendants appeal.
Reversed.
The facts sufficiently appear in the opinion.
Thomas Wren, for Appellants:
I. This action was brought to set aside a so-called trust deed, executed by the plaintiff and
James A. Church and E. D. Church to the defendant, H. Kind. The Churches were not made
parties to the action. To the complaint, the defendants, Howell and Kind, demurred upon the
ground that the complaint did not state facts sufficient to constitute a cause of action, and
upon the ground that there was a defect of parties defendant. The demurrer was overruled,
and the court proceeded to try the case, and in due time rendered a decree in favor of plaintiff
and against the defendants, Kind and Howell.
II. There was clearly a defect of parties defendant. The Churches were the principal parties
in interest, and the demurrer should have been sustained upon the ground that there was a
defect of parties defendant. (Gen. Stats. 3036, 3039; Settembre v. Putnam, 30 Cal. 490;
Wilson v. Lassen, 5 Cal. 114.)
III. Power was vested in Howell to manage, preserve and sell the joint property of the
plaintiff and the Churches with a view to the payment of the expenses of caring for and
preserving the property, a matter in which the Churches were vitally interested and over
which Kind had no control and no interest. The agreement constituted Howell the agent of
plaintiff and the Churches to manage, preserve and sell the property. The court had no
jurisdiction to cancel and set aside this agreement, and enjoin Howell, the agent of the
Churches, from managing and preserving the property for the Churches without bringing the
Churches into court.
IV. It appeared upon the face of the complaint that the Churches were parties absolutely
necessary to a full and final determination of the rights of the parties to the agreement or trust
deed. The agreement was made a part of the complaint, and it was the duty of the court to
order the Churches to be brought in upon an inspection of the complaint and error to fail
to do so without demurrer.
23 Nev. 330, 332 (1896) Robinson v. Kind
Churches to be brought in upon an inspection of the complaint and error to fail to do so
without demurrer.
Robt. M. Clarke, for Respondent:
I. The action being to revoke a trust; the cestui que trusts, or beneficiaries, were not
necessary parties. They were represented by the defendants, who were their trustees and who
defended the trust for them. (Pomeroy's Rem. and Rem. Rights, sec. 357; Foster's Fed. Pr.,
117; Kerrison v. Stewart, 92 U. S. 155; Storey's Equity Pl. 150, note a; 61 Geo. 599; 10 Saw.
415; 39 Ark. 70; 4 Minn. 313; 113 U. S. 340; Vetterlein v. Barnes, 124 U. S. 169.)
II. By answering the complaint and going to trial, the demurrer for defect of parties was
waived. (Bliss, Code Pleading, 417; Lonkey v. Wells, 16 Nev. 27, 275; 1 Cal. 206, 470, 481;
47 Mo. 459; 10 Ohio, 409; 30 Iowa, 222; 23 Ark. 530.)
By the Court, Bonnifield, J.:
This action was brought to have a certain instrument and deed of trust annulled and
canceled, and the defendants and each of them perpetually enjoined from asserting or acting
or claiming under the same, from leasing, operating, encumbering or in any manner disposing
of, using or selling the property mentioned in said instrument or any part thereof. The deed or
instrument was executed on August 2, 1892, by James A. Church and E. D. Church and Irene
M. Robinson, parties of the first part, to Henry Kind, party of the second part, and conveyed
to him, and to his heirs and assigns, certain real estate and personal property therein
described, and by its terms in trust for the said parties of the first part upon the terms and
conditions herein specified; * * * to have and to hold all and singular the said hereinbefore
granted and described premises unto the said Henry Kind, his heirs and assigns, upon the
trust, nevertheless, and to and for the uses 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 mining expenses incurred upon said property, the
wages of a watchman and taxes, and upon the claim of Eugene Howell against said parties
of the first part for services and salary up to May 31, 1S92, as the same appears charged
upon the books of Robinson, Church & Co., but the amount not to exceed $4,100; said
Eugene Howell to have charge of the property as manager as heretofore, and to work, sell
or lease all or any of said property, as he may deem best, and for the best interests of the
respective parties, but to receive no compensation for his services.
23 Nev. 330, 333 (1896) Robinson v. Kind
claim of Eugene Howell against said parties of the first part for services 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 $4,100; said Eugene Howell to have charge of the property as manager
as heretofore, and to work, sell or lease all or any of said property, as he may deem best, and
for the best interests 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 made as hereinbefore described and provided, said party of the
second part shall reconvey unto said parties of the first part all or any of said properties that
remain unsold, one-half to 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.
Complaint: The plaintiff by her complaint alleges, in substance and in brief, that at the
time she executed said deed and instrument, she was the owner of the property therein
described; that she was then sick in both body and mind and was non compos mentis and had
not the capacity to manage said property or to transact any business concerning the same; and
that particularly she was mentally incapacitated to make and execute or comprehend the
meaning of said instrument; that said defendants, and each of them, well knowing the
premises and fully advised concerning the plaintiff's said physical and mental ailments and
her inability to take care of said property, and well knowing that plaintiff did not understand
or comprehend and had not mental capacity to legally execute the deed of trust and power
annexed thereto, did, on the 2d day of August, 1892, knowingly, falsely and fraudulently and
without consideration and with intent, etc., cause and procure the plaintiff to make, execute
and deliver the said conveyance of her aforesaid real and personal property mentioned and
described in said deed of trust, etc., and caused and procured the plaintiff by the deed and
instrument aforesaid falsely, fraudulently and knowingly, etc., to appoint said defendant,
Eugene Howell, to have charge of said property as manager to work, sell and lease all or
any part thereof as he might deem best and apply the proceeds, etc., 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
plaintiff, Irene M.
23 Nev. 330, 334 (1896) Robinson v. Kind
of trust, etc., and caused and procured the plaintiff by the deed and instrument aforesaid
falsely, fraudulently and knowingly, etc., to appoint said defendant, Eugene Howell, to have
charge of said property as manager to work, sell and lease all or any part thereof as he might
deem best and apply the proceeds, etc., 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 plaintiff, Irene M. Robinson, and one-half to James
A. Church and E. D. Church. It is also alleged in the complaint that the defendants are
proceeding to execute the terms and provisions of said false and fraudulent instrument; that
they have taken possession and now have possession and control of the said property under
said instrument and have advertised for sale at public auction said property, etc. The said
deed of trust or instrument is annexed to the complaint and made part thereof.
Demurrer and Answer: The defendants demurred to the complaint, one of the grounds of
which was that it appears upon the face of said complaint that there is a defect of parties
defendant, in that James A. Church and E. D. Church are necessary parties defendant. The
demurrer was over-ruled, and the defendants answered, denying each material allegation of
the complaint specifically and denied that the plaintiff was the sole owner of the property
described, and alleged that she was the joint owner of said property with James A. Church
and E. D. Church, and that at the time the trust deed was executed by the plaintiff she well
knew that said Churches were the joint owners of said property with said plaintiff. And they
alleged that there is a defect of parties defendant to said action; that said James A. Church
and E. D. Church are necessary parties defendants in said action.
Judgment and Decree: The case was tried by the court without a jury, and resulted in a
judgment and decree in favor of the plaintiff to the effect that the said deed of trust
mentioned and described in the complaint in this action is fraudulent and void and set aside as
against the said plaintiff, Irene M. Robinson. And the said defendants, Eugene Howell and
Henry Kind, and each of them, are hereby perpetually enjoined from claiming, holding or
asserting any title or right or in exercising any power or authority over or concerning the
said property mentioned and 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."
23 Nev. 330, 335 (1896) Robinson v. Kind
hereby perpetually enjoined from claiming, holding or asserting any title or right or in
exercising any power or authority over or concerning the said property mentioned and
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. Judgment was given against the defendants for plaintiff's
costs, taxed at $77 35. The defendants appeal from the decree and judgment.
Contention: Counsel for appellants contends that James A. Church and E. D. Church are
necessary parties defendant; that they are the principal parties in interest, and contends in
substance that the court erred in overruling the demurrer and in proceeding with the trial of
the case and rendering the judgment and decree therein without acquiring jurisdiction over
said necessary parties defendant.
Authorities: It seems to be well established by the authorities as a general rule in equity,
subject to certain exceptions, that all persons materially interested, either legally or
beneficially, in the subject matter of a suit, are to be made parties to it, either as plaintiffs or
as defendants, however numerous they may be, so that there may be a complete decree which
shall bind them all. (Story, Equity Plead., 9th ed., sec. 72, and note 4; secs. 75, 76.) Where
a person has a direct interest in the subject matter of the suit, his rights will be affected by the
final decree, and he is a necessary party. (Richards v. Richards, 9 Gray, 313, 315.) A
person is a necessary party to a suit when no decree in relation to the subject matter of the
litigation can be made until he is properly before the court as a party; or where the defendants
in the suit have such interest in having such person before the court as would enable them to
make the objection if he were not a party. (Baily v. Inglee, 2 Paige, 278.) If the interest of
the absent parties may be affected or bound by the decree, they must be brought before the
court, or it will not proceed to a decree. (Story, Equity Plead., 9th ed., sec. 137.) If the
defendants actually before the court may be subjected to undue inconvenience, or to danger of
loss, or to future litigation or to a liability, under the decree, more extensive and direct,
than if the absent parties were before the court, that of itself will, in many cases, furnish
a sufficient ground to enforce the rule of making the absent persons parties." {Id., sec.
23 Nev. 330, 336 (1896) Robinson v. Kind
gation or to a liability, under the decree, more extensive and direct, than if the absent parties
were before the court, that of itself will, in many cases, furnish a sufficient ground to enforce
the rule of making the absent persons parties. (Id., sec. 338.)
The defendants Kind and Howell, and each of them, may be subjected to future litigation
by said James A. and E. D. Church, to enforce the trust and to account for said property and
their stewardship thereof, and the said Howell may be defeated in the collection of his said
claim as against said Church & Church if he fail to use all reasonable diligence to collect the
same out of the proceeds of said property. In any such suits between the defendants and the
Churches the judgment and decree in this case could not avail them for any purpose. It
appears by the complaint that the said James A. and E. D. Church have a direct interest in the
subject matter of the suit, that their interest under the said instrument is identical with that of
the plaintiff, with the additional interest therein of having the release, made by the plaintiff of
all and any claim she may have against them, completed and made effective by a conveyance
to her by defendant Kind of one-half of all or any of said property that remains unsold, as
provided in said instrument, after the payments therein named are made, out of the proceeds
of said property.
Effect of Decree: The decree annuls said instrument as to the plaintiff; takes the property
out of the hands and control of the trustee, Henry Kind, and the agent, Eugene Howell, who
are made by said instrument the trustee and agent, respectively, of the said James A. and E.
D. Church and the plaintiff, the beneficiaries of said trust, and it puts the same into the hands
and control of the plaintiff; it perpetually restrains the defendants, as such trustee and agent,
or otherwise, from in any manner interfering with said property or with the use and enjoyment
thereof. It in effect ousts said James A. and E. D. Church of said property, and strips them of
all their rights and interests therein. It seems that it was intended that the decree should have
such effect. The plaintiff claims in her complaint to be the owner of said property, and her
counsel argues and contends as matter of law that the action, being to revoke a trust, the
cestuis que trust or beneficiaries were not necessary parties; that they were represented
by the defendants, who were their trustees, and who defended the trust for them.
23 Nev. 330, 337 (1896) Robinson v. Kind
the action, being to revoke a trust, the cestuis que trust or beneficiaries were not necessary
parties; that they were represented by the defendants, who were their trustees, and who
defended the trust for them. The contention is to the effect that in law James A. and E. D.
Church, being beneficiaries, the defendants as trustees defended for them; that this being an
action to revoke the trust, they represented said Churches and bound them in the action, and
that their interest in the said deed and instrument and property is concluded by said decree.
But we cannot agree with counsel in his theory of the law. The said trustees do not represent
the said two beneficiaries, Church, in any greater degree or for any other purpose than they
represent the other beneficiary, the plaintiff, and cannot bind the former any more than the
latter by anything they may or can do by virtue of their powers or relations as trustees.
In Cases of Trusts: Story, in his Equity Pleadings (9th ed., sec. 207), gives the general rule
as to parties in cases of trusts as follows: The general rule in cases of this sort is, that in suits
respecting the trust properly brought by or against the trustees, the cestuis que trust, or
beneficiaries, as well as the trustees, are necessary parties. The trustees have the legal interest,
and, therefore, they are necessary parties. The cestuis que trust, or beneficiaries, have the
equitable and ultimate interest to be affected by the decree, and, therefore, they are necessary
parties. If there are divers cestuis que trust all of them should be made parties to a bill