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49 Nev.

1, 1 (1925)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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1925-1926
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49 Nev. 1, 1 (1925) Riek v. Messenger
RIEK v. MESSENGER
No. 2674
March 18, 1925. 234 P. 30.
1. Appeal and ErrorFailure to Formally Assign Errors Waived where No Objection Made.
Failure to formally assign errors will be considered as waived in absence of objection.
2. Mines and MineralsWork Done for Benefit of One Mining Claim Held Not to
Constitute Annual Labor for Entire Group.
Work on one claim is not sufficient to constitute the required annual labor for a group of claims,
unless it tends to develop the entire group, and is done in good faith for that purpose.
3. Mines and MineralsCoowner's Interest in Group of Claims Cannot Be Forfeited for
Nonpayment of Assessment Work Done for Benefit of but One Claim.
The interest of a coowner of a group of mining claims cannot be forfeited for nonpayment of his share
of expense of annual representation work, where bulk of work was driving tunnel on one claim in
direction opposite to other claims of group, and which could not possibly benefit such other claims.
4. Mines and MineralsProof of Failure of Proper Publication Held to Defeat Forfeiture
Under Statute and Improperly Refused in Suit to Quiet Title.
Under Rev. St. U.S. Sec. 2324 (U.S. Comp. St. sec. 4620), authorizing forfeiture of coowner's interest
in mining claims for nonpayment of his proportion of annual work by publication of notice at least once a
week, for 90 days, proof that newspaper containing notice was not published for one or more weeks
during required period will defeat forfeiture, and in action to quiet title it was error to reject such
evidence.
See (1) 3 C.J. sec. 1481, p. 1341, n. 76; (2, 3, 4) 27 Cyc. p. 592, n. 72; p. 594, n. 97; p. 656, n. 65 (new).
Appeal from Seventh Judicial District Court, Mineral County; J. Emmett Walsh, Judge.
Action to quiet title to mining claims by Carl S. Riek against Ed. V. Messenger. Judgment
for defendant, and plaintiff appeals. Reversed.
I. S. Thompson, for Appellant:
Partner cannot forfeit his copartner's interest in mining claims, because he has adequate
remedy by accounting. Each partner is liable for full amount of indebtedness, not merely for
pro rata share.
49 Nev. 1, 2 (1925) Riek v. Messenger
indebtedness, not merely for pro rata share. Lindley on Mines, 1007; Stuart v. Adams, 89 Cal.
367.
Notice of forfeiture which does not specify amount money spent on each claim nor facts
which might excuse expenditure, is fatally defective. Haynes v. Briscoe, 67 P. 156.
Affidavit of publication which sets forth first and last publication, but not date of each
insertion, is defective. Notice must be inserted in newspaper published nearest claims; proof
must show this. The court erred in rejecting offered testimony that during period of
publication newspaper was not published for three weeks. U.S. Rev. Stats. 2324; 15
Morrison, 146.
C. C. Ward, for Respondent:
Dictum in 2 Lindley, sec. 630, that work performed must manifestly tend to develop all
claims in group has been considered, criticized and rejected in Love v. Mt. Oddie U.M. Co.,
43 Nev. 67. Court there adopts contrary view expressed in Smelting Co. v. Kemp, 104 U.S.
635.
Alleged defect in printed notice was mere indistinct imprint of final stroke of letter r in
plaintiff's name, not misleading or prejudicial. Plaintiff's admission of verbal notice makes
any typographical error in printed notice immaterial.
In action to quiet title plaintiff must establish his title regardless of whether defendant's
title is valid or not. Schroder v. Aden G.M. Co., 144 Cal. 628.
Annual assessment work must be for development of claim and to facilitate extraction of
minerals it may contain. Hough v. Hunt, 138 Cal. 142. Labor and improvements may be on
ground which originally constituted only one claim. Smelting Co. v. Kemp, supra; Love v.
Mt. Oddie U.M. Co., supra.
Findings of trial court on conflicting evidence are conclusive. Lombardi v. Lombardi, 44
Nev. 341.
Question whom burden of proof rests on is determined by ascertaining which party, without
evidence, would be compelled to submit to adverse judgment. Coffman v. Pub. Co., 65 Wash.
1.
49 Nev. 1, 3 (1925) Riek v. Messenger
OPINION
By the Court, Coleman, C. J.:
This is an action to quiet title to an undivided half interest in a group of 16 mining claims
known as Red Wing, Red Wing Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, Red Wing Extension,
Mollie Hogan, Bobbie and Dollie, and for an accounting. The appeal is from a judgment in
favor of the defendant and from an order denying a motion for a new trial.
The mining claims in question were located in 1917 in the names of the plaintiff and the
defendant. In the summer of 1921 the defendant, claiming that he had done $1,600 worth of
work upon the claims at his own expense for the year 1920, and that the plaintiff had failed to
do one-half of the annual labor for said year, or to contribute to the defendant one-half of the
amount expended by him, to wit, $800, advertised in a certain newspaper a notice of
forfeiture directed, as it is alleged by the defendant, to this plaintiff. Further facts will appeal
from the opinion.
1. No errors have been formally assigned, but since no point is made of that fact, we will
consider the failure so to do as waived.
2, 3. One of the points discussed by counsel for the appellant is that, since no work
whatever was actually done upon several of the claims in question, and since it was admitted
by the defendant upon the witness stand that the bulk of the work done by him could not tend
to develop certain of the claims, the work done could not constitute annual labor for the entire
group. He was asked:
Q. Now, this tunnel started on No. 11 could never reach any of these properties, could it?
A. That was not the intention of the tunnel.
The question was read again and he answered, No.
Q. That tunnel that you refer to on No. 11, in which direction is it drifting? A. The
general direction is south.
Q. So that it is not being driven in the direction of the other claims at all? A. No, sir.
49 Nev. 1, 4 (1925) Riek v. Messenger
According to his own testimony he did not do in all for the year 1920 to exceed 310 days'
work, of which he testified 214 were done on Red Wing No. 11, in a tunnel running in a
direction opposite to the other claims. On nine of the claims no work whatever was actually
done, taking his own testimony for it. Hence on one claim 214 days' work was performed, and
between six others 90 shifts were performed in open cuts. That such work cannot be applied
as annual labor upon a group of 16 claims is too clear for serious doubt. In the case of Love v.
Mt. Oddie United Mines Co., on rehearing 43 Nev. 61, 184 P. 921, we laid down the law,
stating what is necessary to constitute the annual labor for a group of claims when the work is
not done on each claim. The test as to whether work done upon one claim for a group of
claims will constitute the annual labor for the group is whether it is done in a manner tending
to develop the entire group and for the purpose of so developing the entire group, in the
honest belief that it so tends to develop them.
It is not even asserted that the bulk of the work claimed to have been done could tend to
develop any claim except the one on which the work was done. The other work was scattering
and done in open cuts. No such work can count as annual labor for the entire group of claims,
and for this reason alone the judgment is erroneous.
3. It is also contended that the trial court erred in rejecting an offer of testimony made by
the plaintiff to show that, during the period of publication of the notice of forfeiture relied
upon by the defendant, the newspaper in which said notice was printed was not printed and
published for one or more weeks.
Section 2324, Rev. St. of the United States (U.S. Comp. St. sec. 4620), provides that upon
the failure of one or more coowners to contribute his proportion of expenditure incurred by
another coowner in doing annual labor upon mining claims, the coowner who has performed
the labor, at the expiration of the year, may give such delinquent coowners notice in writing
or by publication in the newspaper nearest the claim for at least once a week for 90 days,
etc.
49 Nev. 1, 5 (1925) Riek v. Messenger
publication in the newspaper nearest the claim for at least once a week for 90 days, etc. Under
this provision, if the plaintiff could show that the notice was not published one week during
the 90 days, there could have been no judgment such as here rendered. The court erred in
rejecting the offer.
Other errors are discussed, but we do not deem it necessary to consider them.
For the reason given, it is ordered that the judgment be reversed.
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49 Nev. 5, 5 (1925) Didier v. Webster Mines Corporation
DIDIER v. WEBSTER MINES CORPORATION
No. 2670
April 3, 1925. 234 P. 520.
1. Mines and MineralsMiner Employed in Improving Mine by Lessee Held Not Under
Particular Section Entitled to Lien.
Provisions of Rev. Laws, sec. 2213, giving miners liens for work in improving mine whether at
instance of owner or agent, and that contractor, subcontractor, or other having control of claim or part
thereof shall be held agent, does not apply to persons employed by lessee of mine.
2. Mines and MineralsLessee's Employees Held Entitled to Lien, Where Owner's Notice of
Nonliability was Not Posted on Conspicuous Place.
Miners employed by lessee of mine, which employment was known to owner, held entitled to liens
under Rev. Laws, sec. 2221, though notice of nonliability was posted, where posting was on building
used by lessee as home and office, which was not reasonably calculated to impart information, and was
therefore not conspicuous place within statute.
3. Mines and MineralsLessee of Mine Held Not Necessary Party to Suit by His Employees
to Enforce Lien.
In suit by miners, employed by lessee of mine, to foreclose lien under Rev. Laws, sec. 2221, because
of owner's failure to post nonliability notice in conspicuous place, though it knew work was being done,
lessee held under facts of case not necessary party defendant; complete remedy being against property.
4. Mines and MineralsWages of Cook and Helper Held Not Lienable.
In suit to enforce lien against mine owner, claims for wages of cook and his helper held not lienable,
in view of theory expressed in Rev. Laws, sec. 2213, that liens are given for enhancement of value of
property.
49 Nev. 5, 6 (1925) Didier v. Webster Mines Corporation
5. Mines and MineralsPersonal Judgment Against Owner for Nonlienable Claims Against
Lessee Held Erroneous.
In suit to foreclose lien for labor performed in mine by employees of B., where property was
chargeable for owner's failure to post nonliability notice as required by Rev. Laws, sec. 2221, held
erroneous to render personal judgment against owner for nonlienable claims, where there was no
evidence that B. was agent in fact of owner.
See 19 C.J. p. 1255, n. 16; 27 Cyc. p. 17, n. 6; p. 56, n. 30; p. 770, n. 27; p. 774, n. 43 (new), 44; p. 779, n. 86
(new); p. 781, n. 4; p. 783, n. 16; 36 Cyc. p. 1119, n. 36.
Appeal from Fifth Judicial District Court, Nye County; Frank T. Dunn, Judge.
Suit by Matt Didier against the Webster Mines Corporation. From a judgment and decree
for plaintiff, defendant appeals. Affirmed in part, and reversed in part. Rehearing denied.
Hoyt, Norcross, Thatcher & Woodburn, and Wm. Forman, for Appellant:
Lessees were indispensable parties without whom no judgment could be entered
determining issues. The debt is principal thing and must be established; the foreclosure of lien
is but collateral. Rosina v. Trowbridge, 20 Nev. 112; Orr v. Ulyatt, 23 Nev. 134; Missoula
Mer. Co. v. O'Donnell, 60 Pac. 597.
Notice of nonliability having been posted in conspicuous place, filed and recorded, there
can be no claim of lien against defendant. Stats. 1917, 435. Conspicuous means easily
discernible. Williams v. C.R. Co., 88 N.Y. Sup. 434; Ogglesby Co. v. Lindsay, 72 S.E. 672.
This case is distinguished from Verdi Co. v. Bartlett, 40 Nev. 317, since in that case
material was furnished to contractor and used on premises. Bray does not come within class
of other persons having charge or control in lien law. Ejusdem generis, 19 Cyc. 1255.
Corresponding statute of California makes lessee agent. Kerr, C.C.P. sec. 1183. Posting
notice will relieve against claim or lien for improvement made by one not acting in capacity
of agent. Belnap v. Condon, 23 L.R.A. (N.S.) 601; Rosina v. Trowbridge, supra.
49 Nev. 5, 7 (1925) Didier v. Webster Mines Corporation
What is purpose of section 9 if owner cannot be relieved? If lessee is agent of owner, why
did not legislature say so?
Claims of cook and cook's helper are not lienable. Their employment by lessees is not
shown to have been authorized by defendant.
Jos. D. Murphy and Ryland G. Taylor, for Respondent:
Defense that property was leased to lessees is without merit, since defendant had
knowledge that work was performed and improvements made. Rev. Laws, 2213; Gould v.
Wise, 18 Nev. 256; Phillips v. Snowden, 40 Nev. 66.
Lease gave lessors supervision and control of workings and right to direct expenditures of
money. Under such conditions lessees were agents. Rev. Laws, 2213.
Defendant knowingly received benefits of work and improvements. It is unjust to say that
if service could not be had on agent owner could escape payment for benefits because it could
not be sued except jointly with agent. Lamb v. Lucky Boy Mng. Co., 37 Nev. 9.
Foreclosure of lien is action in rem. Statute does not require joinder of parties. Party legally
liable must pay if summoned. Rev. Laws, 2227, 5243, 5031.
Even in California practice of joining contractor is only commended, not held mandatory.
Giant Powder Co. v. Flume Co., 78 Cal. 193, cited in Kerr, C.C.P. sec. 1183, n. 89. In this
case, Bray was duly authorized agent, not contractor. We do not claim he is personally liable,
as contractor or otherwise. However, while contractor is proper, he is not necessary party.
Defendant should have moved for joinder, if he so desired. Fresno etc. Co. v. Manning, 130
P. 196; Yancy v. Morton, 29 P. 1111. It is not necessary that personal judgment be had
against contractor. Russ Co. v. Garrettson, 25 P. 747. Materialman is not required to sue
contractor jointly with owner. Wilder's Sons v. Walker, 25 S.E. 571.
Where no judgment is demanded against principal contractor in such proceeding he is not
necessary party.
49 Nev. 5, 8 (1925) Didier v. Webster Mines Corporation
Hubbard v. Moore, 31 N.E. 534; McDonald v. Backus, 45 Cal. 262.
Owner's property is liable for materials furnished for erection of house at instance of his
statutory agent. Verdi Lumber Co. v. Bartlett, 40 Nev. 317.
Objection to nonjoinder should have been raised by demurrer. By going to trial and
concluding case without such objection by demurrer, defendant is now estopped. Rev. Laws,
5040; Yancy v. Morton, supra.
Notice of nonliability must be posted within three days after owner has notice of
commencement of work, and in conspicuous place, which was not done in this case. Owner
must bring himself squarely within provisions of statute. Rosina v. Trowbridge, 20 Nev. 106;
Evans v. Judson, 52 P. 585. Blam Mechanics' Liens, 445; Phillips v. Snowden, 40 Nev. 66.
OPINION
By the Court, Ducker, J.:
Respondent instituted this action in his own behalf and as assignee of several others to
foreclose liens for labor performed by them upon the mining property of appellant, situated in
Nye County, while the said property was under the charge of one Elmer M. Bray. The mining
property belonging to respondent, together with the mill and equipment contained therein,
situated on said property, all of which is sought to be charged with the several liens, the
operation of the same by said Bray for and on behalf of the appellant as its agent, the work
done upon the property by the several lien claimants by agreement with Bray and the value
thereof, the filing and recording of their liens as required by law, the expense incident to
making, verifying, filing, and recording the liens, and the assignment of the liens of the other
lien claimants to respondent prior to the commencement of the suit, are all formally alleged in
the amended complaint. It is also alleged that the appellant did not post notices that it would
not be responsible for said labor at some conspicuous place on the property, as required by
law.
49 Nev. 5, 9 (1925) Didier v. Webster Mines Corporation
required by law. The sum of $1,500 is claimed as a reasonable attorney fee in the prosecution
of the suit.
All of the material allegations of the amended complaint are denied in the answer, except
the ownership of the property sought to be charged with the liens, and the filing and recording
of the liens.
For a first and separate defense it is alleged that appellant, on the 5th day of April, 1921,
leased the property to said Elmer M. Bray and one Jay A. Carpenter; that thereafter, on or
about the 23d day of November, 1921, a supplemental lease was entered into by appellant,
Bray, and one B.F. Miller, Jr., by the terms of which Miller succeeded to the interest of
Carpenter in the original lease; that at all times subsequent thereto said Bray and Miller were
in the possession of the property and operating the same under and by virtue of said lease and
agreement. A copy of both agreements are attached to and made a part of this defense. It is
further alleged in this defense that, if any labor was performed on the property by the several
lien claimants, it was under contract with and at the instance and request of Bray and Miller
as lessees of the premises, and not for or on behalf of appellant, or its agents; that neither said
Bray nor Miller were at any time the agent or agents of the appellant, or authorized to contract
for any of the alleged labor on its behalf.
It is also alleged that, on the 14th day of September, 1922, appellant posted a nonliability
notice in a conspicuous place upon the property, and within five days thereafter filed a
duplicate original of the same with the county recorder, together with the affidavit attached
showing such posting.
As a further, second, and separate defense it is alleged that said Bray and Miller are and
each of them is the party primarily responsible for the contract of employment and the
performance of labor alleged, and should have been made parties to the action; that under and
by virtue of the laws of the State of Nevada actions for the foreclosure of liens by mechanics
and others must be commenced within six months after the filing of the claims of lien; that
more than six months have expired since the filing of the claims in the action, and that no
action can now be maintained for the foreclosure of the liens against Bray and Miller; and
that by reason of the failure to join said Bray and Miller as parties defendants this action
cannot be maintained.
49 Nev. 5, 10 (1925) Didier v. Webster Mines Corporation
claims of lien; that more than six months have expired since the filing of the claims in the
action, and that no action can now be maintained for the foreclosure of the liens against Bray
and Miller; and that by reason of the failure to join said Bray and Miller as parties defendants
this action cannot be maintained.
On the trial of the case, as substantially stated by the district judge in his written decision,
evidence was offered in support of all the lien claims, showing the time the work, was
performed, where it was performed, the amounts due on each claim; that all of the lien
claimants were employed by Bray; that Miller was not known to any of them, and that, so far
as they knew, he had nothing to do with the property; that no notice of nonliability was posted
as required by law. The defendant offered no evidence to disprove any of these facts, except
that Bray and Miller were lessees, and offered the lease in evidence to support this
contention; also that a nonliability notice was posted in one place upon the property, to wit,
the office or residence building occupied by Bray and his family.
Judgment was entered in favor of respondent for the amount of eight of the claims,
together with cost of preparing, filing, and recording the liens therefor, and for attorney's fee
and foreclosure decreed against the property. Personal judgment was rendered for two of the
claims held not lienable. This appeal is taken from the judgment and decree, and from the
order denying a motion for a new trial.
Many errors are assigned, but in their brief and argument counsel for appellant have
confined their discussion of errors to four contentions. It is contended: (1) That Bray and
Miller were necessary and indispensable parties, without whom no judgment or decree could
be entered determining the issues of the cause; (2) that, notice of nonliability having been
posted in a conspicuous place and property filed and recorded, there can be no claim of lien
against the defendant; (3) that there is no evidence that Bray was an agent of the defendant
corporation; and (4) that the court erred in entering personal judgment against the
defendant on the sixth and eighth causes of action.
49 Nev. 5, 11 (1925) Didier v. Webster Mines Corporation
entering personal judgment against the defendant on the sixth and eighth causes of action.
A section of the lien laws involved reads:
* * * And all miners, laborers and others who work or labor to the amount of five (5)
dollars or more in or upon any mine, or upon any shaft, tunnel, adit, or other excavation,
designed or used for the purpose of prospecting, draining or working any such mine; and all
persons who shall furnish any timber or other material, of the value of five (5) dollars or
more, to be used in or about any such mine, whether done or furnished at the instance of the
owner of such mine or his agent, shall have, and may each respectively claim and hold, a lien
upon such mine for the amount and value of the work or labor so performed, or material
furnished; and every contractor, subcontractor, architect, builder, or other persons, having
charge or control of any mining claim, or any part thereof, or of the construction, alteration or
repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be
held to be the agent of the owner, for the purposes of this chapter. Section 2213, Rev. Laws,
1912.
1. It may be stated as a general rule that a lessee contracting for the improvements upon
demised premises does not merely, by virtue of his relation as lessee, contract as the agent of
the lessor so as to subject the property to mechanics' liens therefor. 20 Am. & Eng. Ency. of
Law, p. 319, and cases cited in note 1, p. 318. The statute quoted above does not make any
innovation in this rule by either expressly or indirectly making a lessee the agent of the
owner. The words other persons employed in the statute following the specific naming of
classes of persons who are to be deemed agents of the owner for the purposes of the lien
chapter must, under the well-known rule of ejusdem generis, be held to refer to persons of a
class analogous to those specified, and, so construed, cannot be held to include lessees. In
fact, the clause of the statute specifying the persons who are to be held the agents of the
owner has been construed by this court as not including a lessee.
49 Nev. 5, 12 (1925) Didier v. Webster Mines Corporation
Gould v. Wise, 18 Nev. 253, 3. P. 30. In that case one Torrey, who was in the possession of a
written lease of reduction works and the land upon which they were situated, belonging to a
corporation, was furnished materials and labor which were used in repairing and carrying on
the mill. The question was whether Torrey, the lessee, could create a lien upon the premises
that would affect the estate of the lessor. In deciding this question the court, after quoting
portions of section 1 of the lien laws, including the clause under consideration, said:
It may be conceded for the purposes of this case, that to authorize a lien there must be an
employment by the owner of the building, or his authorized agent, and that an employment by
a lessee does not constitute the employment contemplated by the statute; and, further, that to
constitute the contractor, subcontractor, architect, builder, or other person the statutory agent
of the owner, such person must have been employed, directly or indirectly, at the instance of
the owner, or his conventional agent.
So far as the opinion in the foregoing case discloses, Torrey was a mere lessee without any
other contractual relations with the owner of the reduction works. And it is to be observed
that the court, in holding that an employment by the lessee does not constitute the
employment contemplated by the statute, confined its statement of the law strictly to the facts
of the case.
2. In the instant case the evidence discloses that Bray's relations to the appellant bore other
characteristics than those of a mere lessee. The evidence in this regard consists mainly of the
instrument denominated a lease and agreement, referred to and made a part of appellant's
answer and introduced in evidence in its defense. But we do not deem it necessary to
determine whether this instrument, in addition to being a lease of the property, was also, in
effect, such a contract concerning it as to make Bray the statutory agent of the appellant
within the contemplation of section 2213, for the reason that we have reached the conclusion
that there was no nonliability notice posted upon the property as required by law.
49 Nev. 5, 13 (1925) Didier v. Webster Mines Corporation
there was no nonliability notice posted upon the property as required by law. Such being the
case, the property became subject to the liens for work done upon it contracted for by Bray by
virtue of section 9 of the lien laws, as amended Stats. 1917, c. 232, sec. 1, even if in
contracting for such work he was not appellant's agent in fact or its statutory agent. Gould v.
Wise, supra; Rosina v. Trowbridge, 20 Nev. 105, 17 P. 751; Lamb v. Lucky Boy M. Co., 37
Nev. 9, 138 P. 902. This section reads:
Every building or other improvement mentioned in section 1 of this act, constructed upon
any lands with the knowledge of the owner or the person having or claiming any interest
therein, shall be held to have been constructed at the instance of such owner or person having
or claiming any interest therein, and the interest owned or claimed shall be subject to any lien
filed in accordance with the provisions of this chapter, unless such owner or person having or
claiming an interest therein shall, within three days after he shall have obtained knowledge of
the construction, alteration or repair, * * * give notice that he will not be responsible for the
same, by posting a notice in writing to that effect in some conspicuous place upon said land,
or upon the building or other improvement situate thereon, and also shall, within five days
after such posting, file a duplicate original of such posted notice with the recorder of the
county where said land or building is situated, together with an affidavit attached thereto
showing such posting of the original notice. Such filing shall be prima facie evidence of said
posting.
In the cases cited no notice was posted. In the instant case a nonliability notice was posted
by the appellant upon its property where the mining operations were carried on by Bray, but
not in the place contemplated by the statute. The obvious purpose of the requirement is to
give actual notice to workmen or materialmen that the owner of the property disclaims
responsibility for liens upon it for their services or supplies (Phillips v. Snowden Placer Co.,
40 Nev. 66-85, 160 P. 786), and, unless the place where such notice is posted is one
reasonably calculated to impart such information to them, it cannot be said to be
conspicuous within the meaning and purpose of the statute.
49 Nev. 5, 14 (1925) Didier v. Webster Mines Corporation
unless the place where such notice is posted is one reasonably calculated to impart such
information to them, it cannot be said to be conspicuous within the meaning and purpose of
the statute.
Mr. Wicks, an agent of the appellant, testified that he posted a nonliability notice on its
property on September 14, 1922; that the notice was posted on the building used by Bray as a
home and office, and at the side of the main entrance; that he left the property on the
following day, and did not visit it again until January 28, 1923, when he went to the office
and found that the notice he had posted in September still remained posted. It was also proved
by Mr. Wicks that he filed a copy of the notice with the county recorder. The evidence shows
that this notice did not come to the attention of any of the lien claimants. This, however, was
not essential, providing the place of posting was reasonably adapted to accomplish that effect.
The evidence shows that the building on which the notice was posted was used by Bray as
an office and was also his home. He resided there with his wife and children. It was situated
about 40 feet from the nearest trail traveled by the workmen in going from the bunkhouses to
their places of work, and to the boarding house, and in returning. The nearest bunkhouse was
about 100 yards from the office, and the nearest places of workthe main tunnel and the
blacksmith shopwere several hundred yards from the office. The mill was twice that
distance, and the boarding house still further away. It is conceded that no notice of
nonliability was posted at the bunkhouses, boarding house, mill, tunnel, blacksmith shop, or
other place where men worked; appellant relying upon the notice posted at the office as a
sufficient compliance with the statute.
Several of the lien claimants saw a semimonthly pay day notice at the mouth of the tunnel,
but none of them saw a nonliability notice at any place. It appears that the employees had no
occasion to go to the office to get their pay; that Bray gave them their checks either at the
bunkhouse or where they were working.
49 Nev. 5, 15 (1925) Didier v. Webster Mines Corporation
It appears from the testimony of respondent's witnesses that one of them went to the office
building three times; twice after dark, when he and his wife were invited to spend the
evening, and once in the daytime, when Bray called him to talk over some business; that one
of the witnesses and his wife visited there on several evenings; and that another of the
witnesses was there three times, once in the night and twice in the daytime. Other than in
these instances, so far as the record discloses, none of the lien claimants were at the house or
any nearer than the trail leading by it. That the notice could not be readily seen from the trail
leading by the house by one who did not know it was there is fairly deducible from the
evidence. That it could not be read by one standing in the trail was established by the
evidence.
The court found that the notice was not posted in a conspicuous place, and we are of the
opinion that the evidence would admit of no other finding. A place where workmen had no
business to go, and where otherwise they would be unlikely to go on account of the place
being the home of the family, cannot, in the absence of evidence showing that they did
nevertheless frequent the place, be held to be a conspicuous spot for giving notice to them.
The location was ideal for giving notice to Bray, but was unlikely to impart notice to his
employees.
As the nonliability notice was not posted in a conspicuous place on the mining property,
within the meaning of the law, it follows that, under the provisions of section 2221, if the
appellant had knowledge that the work was being done, it must be held to have been
performed at the instance of the owner of the property. Gould v. Wise, supra. See, also,
Rosina v. Trowbridge, 20 Nev. 105, 17 P. 751.
The evidence discloses that appellant had such knowledge, and appellant makes no
contention to the contrary.
3. Appellant complains that Bray, who contracted for the employment of the lien
claimants, was not made a party defendant to the action, and asserts that he was a proper
necessary, and indispensable party.
49 Nev. 5, 16 (1925) Didier v. Webster Mines Corporation
a proper necessary, and indispensable party. We see no real ground for this contention. The
lien laws of this state do not, as in some states, either expressly or by necessary implication,
require the contractor to be made a party defendant. The laborer or materialman is given the
right to sue the owner of the property directly to enforce his lien if the contractor or other
person named is the statutory agent of the owner, or, not being the agent of the owner, the
work was done or material furnished with his knowledge, and no nonliability notice was
published as required by law. The action was brought against appellant under the provisions
of the statute to enforce the liens against its property, and no personal judgment is sought
against Bray. The law applicable to the facts of this case regards the services of the lien
claimants as having been furnished at the instance of the owner. How, then, can appellant's
right be said to be affected by the nonjoinder of Bray, or even that he is a necessary party to a
complete determination of the action?
It is urged that Bray contracted for the work and is the debtor, and that the existence of the
debt is the principal issue, and cannot be determined without the presence of the debtor as a
party defendant. Authority is cited to this rule, but we do not see the logic of it when a
complete remedy is given to the lien claimants against the property of the owner, and when,
as in this case, such remedy has been exclusively sought, and the evidence establishes without
conflict the amount and value of the services of the various lien claimants. True, the debt
must be established, else the lien claimant would fail to establish his right to have his lien
enforced, but why the contractor must be made a party to ascertain it in all cases is not
discernible. If there is any reason existing why, in any case, a contractor should be made a
party, he may be made a party under the general rules of practice. Hubbard v. Moore, 132 Ind.
178, 31 N.E. 534.
We hold that, under the facts of this case, Bray was not a necessary party defendant. On
the question of whether, in an action to enforce a mechanic's lien, the contractor is a
necessary party the authorities are not harmonious, which is due in a large measure to
the variant statutes on the subject.
49 Nev. 5, 17 (1925) Didier v. Webster Mines Corporation
whether, in an action to enforce a mechanic's lien, the contractor is a necessary party the
authorities are not harmonious, which is due in a large measure to the variant statutes on the
subject. Among the cases holding that the contractor is not a necessary party are Green v.
Clifford, 94 Cal. 49, 29 P. 331; Yancy v. Morton, 94 Cal. 558, 29 P. 1111; Wood v. Oakland,
etc., Transit Co., 107 Cal. 500, 40 P. 806; Hubbard v. Moore, supra; Burgi v. Rudgers, 20
S.D. 646, 108 N.W. 253; Wilder's Sons Co. v. Walker, 98 Ga. 508, 25 S.E. 571.
4. Among the causes of action set out in the amended complaint are one for services as a
cook, and one for services for a cook's helper. The trial court held that these claims were not
lienable, but gave a personal judgment for them against the appellant. The claims are not such
as to entitle the claimants to a lien against the appellant's property. Holtzman v. Bennett
(Nev.) 229 P. 1095. The general theory upon which liens to laborers, mechanics, and
materialmen are given is that by the labor, or use of the material, the property has been
enhanced in value. This theory finds expression in section 2213, supra. The services
performed by the cook and the cook's helper are not of the nature of those embraced in the
statute.
5. It was error, however, for the court to render a personal judgment against the appellant
for these services. There is no evidence to show that in contracting for their services Bray was
acting as the agent in fact for the appellant, thus rendering it personally liable upon the
general principles of law. If he was the statutory agent, the effect of his acts in employing
labor could only operate to charge appellant's property with a lien for such services as were of
a lienable character, and could not charge appellant with any personal liability.
As to these two last-mentioned causes of action the judgment is reversed, and it is affirmed
in all other respects.
On Petition for Rehearing
September 12, 1925.
Per Curiam:
Rehearing denied.
____________
49 Nev. 18, 18 (1925) Confer v. District Court
CONFER v. DISTRICT COURT
No. 2688
April 6, 1925. 234 P. 688.
1. ProcessTo Obtain Legal Service by Publication, Complaint Must State Good Cause of
Action.
Under Civil Practice Act, sec. 84, as amended by Stats. 1923, c. 158, to obtain legal service by
publication against nonresident, complaint must state good cause of action to satisfaction of court.
2. DivorceAttack on Decree for Want of Jurisdiction Too Late, where Petitioner Knew all
the Facts Before Decree.
Where defendant in divorce action denied jurisdiction only on information and belief that necessary
residence of plaintiff had not been established, attack on decree on those grounds held too late, where all
facts were known before decree.
3. DivorceDecree May Be Annulled Only for Fraud which is Extrinsic or Collateral.
Decree of divorce may be annulled only for fraud which is extrinsic or collateral to matter tried by
court, and not fraud in matter on which judgment was rendered.
4. DivorceFraud as to Residence, being Jurisdictional Fact, Not Available to Annul
Decree.
Fraud in alleging or establishing required residence in divorce action, being a jurisdictional fact, held
not available to annul decree.
See (1) 32 Cyc. p. 475, n. 3, p. 477, n. 13; (2, 3, 4) 19 C.J. sec. 415, p. 166, n. 28; sec. 438, p. 176, n. 75; 34 C.J.
sec. 496, p. 280, n. 96.
Original proceeding in mandamus by Emma E. Confer against the Second Judicial District
Court of the State of Nevada, in and for county of Washoe, and George A. Bartlett, Judge of
said court, to show cause why he should not be compelled to grant order directing service of
summons on verified complaint. Proceeding dismissed. Rehearing denied.
Frame & Raffetto, for Relator:
In action for divorce, being proceeding in rem, and res of action being status of parties, in
order to transfer res to jurisdiction other than matrimonial domicile it is necessary that there
be abandonment of that domicile with concurrence of act and intention in establishment of
actual, bona fide, and permanent domicile in foreign jurisdiction.
49 Nev. 18, 19 (1925) Confer v. District Court
jurisdiction. Presson v. Presson, 38 Nev. 203; Aspinwall v. Aspinwall, 40 Nev. 55.
Where jurisdiction is lacking by reason of want of domicile of at least one of parties in
foreign jurisdiction decree is nullity, and jurisdiction will always be inquired into, even in
collateral proceedings, as such decree is void ab initio. Andrews v. Andrews, 188 U.S. 187;
Haddock v. Haddock, 201 U.S. 562; Atherton v. Atherton, 181 U.S. 155; Sneed v. Sneed, 123
Pac. 212.
Jurisdiction can never be conferred by consent, waiver, estoppel, or laches. Ex Parte
Gardner, 22 Nev. 281; Andrews v. Andrews, supra.
Appearance of party in foreign jurisdiction does not operate to confer jurisdiction over
subject matter. Cases cited supra.
Judgment may in proper cases be set aside for fraud, inadvertence, where judgment was
improvidently rendered, by court of its own motion, by proper motion, and by independent
action. People ex. rel. Swartz v. Temple, 37 P. 415; Stimson v. District Court, 47 Nev. 156.
It is duty of court, on suggestion of fraud, to investigate and purge record of judgment, if
fraudulent. Pringle v. Pringle, 104 P. 135; Cottrell v. Cottrell, 23 P. 531.
It must be borne in mind that there is a distinction between judgments which are void
because of lack of jurisdiction of subject matter, and those in which court does not possess
jurisdiction over the subject matter or parties and which may be set aside on ground of
extrinsic or collateral fraud. In latter class, want of jurisdiction over subject matter invalidates
judgment.
S.W. Belford, Samuel Platt, and E.F. Lunsford, for Respondents:
Whole case may be reduced to one question, may decree be impeached for fraud appearing
de hors the record by showing prevailing party testified falsely to material facts establishing
residence?
This court has repeatedly held that the question of residence of plaintiff in divorce action
is one of fact to be determined by trial court.
49 Nev. 18, 20 (1925) Confer v. District Court
residence of plaintiff in divorce action is one of fact to be determined by trial court. Fleming
v. Fleming, 36 Nev. 135; Presson v. Presson, 38 Nev. 203; Blakeslee v. Blakeslee, 41 Nev.
235. It follows that before court could have entered decree in favor of plaintiff it must have
found as fact contrary to allegation of complaint in instant proceeding. Court having so found,
question then arises whether or not same matter may be again investigated. Complaint
nowhere alleges that any facts were concealed by plaintiff in divorce action, but it is simply
alleged generally that his divorce complaint contained false allegations as to residence and
that he gave false testimony thereof. Neither is it anywhere alleged that defendant in divorce
action was imposed upon or prevented from showing facts now alleged, with but one
exception, that plaintiff left jurisdiction immediately after decree was entered and never
returned. This is not newly discovered evidence which would affect material issues of case
but could be considered only as impeachment by inference. Whise v. Whise, 36 Nev. 16.
Allegation of departure after decree is not sufficient to vitiate decree, but argues only falsity
of residence.
Motion to set aside divorce based on finding of residence supported by evidence cannot
prevail on ground that plaintiff departed immediately after decree was rendered, thereby
indicating testimony as to residence was false. Reeves v. Reeves, 123 N.W. 869.
It follows that matters now set up are not extrinsic or collateral to matters determined by
trial court, and such matters are now res adjudicata as to parties. 19 C.J. 167.
To vitiate decree, fraud must be actual, and extrinsic or collateral as distinguished from
judgment obtained on false evidence. Reeves v. Reeves, supra; Lieber v. Lieber, 143 S.W.
458; Orr v. Orr, 146 Pac. 964; U.S. v. Throckmorton, 98 U.S. 61; Friese v. Hemmel, 37 Pac.
458; Greene v. Greene, 2 Gray, 361; Graves v. Graves, 10 L.R.A. (N.S.) 216.
To entitle party to relief in equity perjury or fraud must consist of extrinsic facts not
examined in former action.
49 Nev. 18, 21 (1925) Confer v. District Court
must consist of extrinsic facts not examined in former action. Moor v. Moor, 63 S.W. 347.
To contention that there was entire absence of animus manendi on part of plaintiff and for
that reason court was without jurisdiction, it is sufficient answer that question of domicile
was before court for determination as question of fact and involved consideration of animus
manendi as element of domicile. Reeves v. Reeves, supra; Bishop on Divorce, sec. 1577.
OPINION
By the Court, Sanders, J.:
An alternative writ of mandamus was issued out of this court at the instance of Emma E.
Confer, directed to the respondent court and to Hon. George A. Bartlett, as judge thereof,
commanding him to show cause before this court at the time specified in the writ why he
should not be compelled to grant an order directing that service of a summons issued upon a
verified complaint on file in said respondent court be made by the publication thereof.
1. To obtain legal service by publication of a summons against a nonresident, it must
appear by affidavit to the satisfaction of the court or judge, not only the defendant is a
nonresident, but also, either by affidavit or by a verified complaint on file, that a cause of
action exists against the defendant in respect to whom the service is to be made. Section 84,
civil practice act (section 5026, Revised Laws), as amended by Statutes 1923, p. 275. This
provision has been interpreted to mean that the probative facts set out in the affidavit or
complaint must be sufficient to justify the court in being satisfied that the ultimate facts
required by the statute exist. Victor M. & M. Co. v. Justice Court, 18 Nev. 21, 1 P. 831. That
is to say, in this instance, the complaint on file must state a valid cause of action in equity to
entitle the plaintiff (petitioner herein) to have summons issued and served by publication. The
undisputed facts, in brief, are as follows: In October, 1922, Nathan A.
49 Nev. 18, 22 (1925) Confer v. District Court
In October, 1922, Nathan A. Confer commenced an action in the district court for Washoe
County against Emma E. Confer for a divorce on the ground of cruelty, alleging residence in
Washoe County for six months before the filing of the complaint. Process and a copy of the
complaint were served personally on the defendant at her place of residence in the State of
Pennsylvania. She came to Nevada, appeared, and put in an answer, in which she denied,
upon her information and belief, the allegation respecting plaintiff's residence, and denied all
charges against her, and in her answer, by way of cross-complaint, set up the desertion of her
by the plaintiff, and demanded judgment for divorce against him upon the ground of
desertion, and asked for suit money and attorney's fees. The plaintiff filed an answer to the
cross-allegation, and, after a full hearing upon the pleadings and evidence, the court, George
A. Bartlett, judge presiding, found all the allegations of the complaint, including that of
residence, to be true, and on the 18th day of July, 1923, rendered a decree of divorce in favor
of the plaintiff and against the defendant. The divorce proceedings are perfectly regular and
valid upon their face.
On the 30th day of October, 1924, Emma E. Confer filed a complaint in the same court
against Nathan A. Confer, claiming that the court was without jurisdiction, for want of
residence on the part of Nathan A. Confer, to render the decree of divorce, in this: That
Nathan A. Confer left the marital domicile of the parties in the State of Pennsylvania and
came to the city of Reno, Washoe County, Nevada, for the sole purpose of obtaining a
divorce, and without any intention of making that place his bona fide home and domicile, and
for the purpose of inducing said district court to assume jurisdiction of his action for a
divorce he falsely represented in his verified complaint that he was a bona fide resident of
Washoe County, and had been for six months prior to the filing of his complaint, and to
obtain a divorce he falsely testified as a witness in his own behalf upon the trial that he came
to Reno, Washoe County, Nevada, with the intention of making that place his bona fide
home and domicile, when in truth and in fact his residence in Washoe County was merely
colorable, and was assumed for the sole purpose of procuring a divorce.
49 Nev. 18, 23 (1925) Confer v. District Court
County, Nevada, with the intention of making that place his bona fide home and domicile,
when in truth and in fact his residence in Washoe County was merely colorable, and was
assumed for the sole purpose of procuring a divorce. In this connection it is alleged that the
plaintiff, on coming to Nevada, left all his personal and real property, including money in
banks, intact in the State of Pennsylvania, and brought with him only such personal effects as
were necessary to satisfy his immediate wants during his temporary sojourn in Nevada; that
during his stay in the city of Reno he lived at a hotel in company with his married daughter,
who came with him from Pennsylvania to Nevada; that the plaintiff was 78 years of age; that
upon obtaining his decree of divorce he immediately returned to his home domicile and
residence in Pennsylvania, which he never abandoned, and had no intention of abandoning
when he came to Reno for the purpose of obtaining a divorce, and where he now resides.
The plaintiff further alleged that as a part of the judgment for divorce it was adjudged that
there was no community property, and that by virtue thereof the plaintiff was deprived of her
dower interest in property of Nathan A. Confer, of the approximate value of $100,000. The
complaint alleges that by reason of the false and fraudulent representations and the perjured
testimony of the plaintiff the district court was without jurisdiction, for want of residence, to
render the decree of divorce of July 18, 1923, and the plaintiff prayed judgment that said
decree be vacated and annulled. Upon the filing of her complaint the plaintiff applied to the
respondent court for an order that the service of the summons thereon be made by
publication. The court refused to grant the order; hence this proceeding in mandamus.
2. Nathan A. Confer may have practiced a fraud upon the law and the court, but certainly
not upon Emma E. Confer. She was not deceived by the allegation of residence, neither was
she an innocent party. The plaintiff alleged the required residence to give the court
jurisdiction of the subject matter of the action.
49 Nev. 18, 24 (1925) Confer v. District Court
court jurisdiction of the subject matter of the action. 9 California Jurisprudence, 694. The
allegation of residence was denied by the defendant (petitioner), upon her information and
belief. No one, except the plaintiff, knew better that the defendant, petitioner herein, whether
the allegation was true or not. The obligation devolved upon her to give the court all the
information which she now shows she possessed concerning the fact of the plaintiff's
residence. Her present solicitude for the protection of the court's jurisdiction in the divorce
action comes too late. The petitioner not being an innocent party, that numerous class of cases
cited by her counsel wherein innocent parties, against whom courts without jurisdiction, for
want of residence, have rendered decrees of divorce, were granted relief in both direct and
collateral proceedings, are not in point.
It is argued on the part of petitioner that, where a judgment for divorce is obtained by fraud
practiced upon the law and the court, it is the duty of the judge rendering the decree to
promptly make such inquiry and finding as to the allegations of fraud as will protect and
preserve the integrity of his decree, and this without reference to the relative rights of the
parties. This is indeed a high-minded position to take, but, unfortunately, the fraud of which
the petitioner complains was that practiced upon the court in an action to which she was a
party and an actor.
3. The power of a court of equity to grant relief from a judgment obtained by fraud is
inherent, but not every fraud committed in the course of a judicial determination will furnish
ground for such relief. The acts for which a judgment or decree may be set aside or annulled
have reference only to fraud which is extrinsic or collateral to the matter tried by the court,
and not to fraud in the matter on which the judgment was rendered. 15 R.C.L. 762. The rule
applies to a divorce action to the same extent, at least, as to any other judgment or decree.
Clark v. Clark, 64 Mont. 386, 210 P. 93, and cases cited.
4. Assuming for the sake of the argument, and the argument only, as was done by the
court in the case of Clark v. Clark, supra, that the allegation in the complaint for divorce
respecting residence was untrue, and that the plaintiff's testimony in support of it was
false, we are confronted with the question whether the judgment for divorce should be
set aside upon the sole ground that an allegation in the complaint necessary to support
the judgment was proved by false testimony.
49 Nev. 18, 25 (1925) Confer v. District Court
argument only, as was done by the court in the case of Clark v. Clark, supra, that the
allegation in the complaint for divorce respecting residence was untrue, and that the plaintiff's
testimony in support of it was false, we are confronted with the question whether the
judgment for divorce should be set aside upon the sole ground that an allegation in the
complaint necessary to support the judgment was proved by false testimony. We are of the
opinion that the fraud being in respect to the very matter on which the judgment for divorce
was rendered the judgment under the rule stated cannot be set aside. Clark v. Clark, supra;
Orr v. Orr, 144 P. 753, 146 P. 964. The required residence of the plaintiff in a divorce action
is a jurisdictional fact, and must appear to warrant a divorce. The allegation of residence
stands upon the same footing as any other allegation of fact showing the right to a divorce.
Walker v. Walker, 45 Nev. 105, 198 P. 433; Blakeslee v. Blakeslee, 41 Nev. 243, 168 P. 950;
Dahne v. Superior Court, 31 Cal. App. 664, 161 P. 280. The case of McKim v. District Court,
33 Nev. 44, 110 P. 4, is authority for the proposition that a question as to the sufficiency of
the evidence to establish residence upon the part of the complainant in a divorce proceeding
must be taken by appeal, and not by original proceeding.
We think that by the plainest principles of equity the petitioner is, under all the
circumstances, precluded from maintaining her action to annul the decree of divorce upon the
sole ground that the allegation in the complaint necessary to support the judgment was proved
by false testimony. Her complaint does not, therefore, state a valid cause of action in equity,
and for this reason we decline to compel the respondent judge to make an order directing that
the summons issued upon such complaint be made by the publication thereof.
The proceeding is dismissed.
49 Nev. 18, 26 (1925) Confer v. District Court
On Petition for Rehearing
June 18, 1925. 236 P. 1097.
1. DivorceDecree Granted Plaintiff, Residing in State for Six Months, Not Annulled for
Fraud on Court's Jurisdiction.
Divorce decree obtained by plaintiff after six months' residence in state, as required
by statute, will not be annulled for fraud on jurisdiction of court, at suit of defendant
who appeared in the action and had knowledge as to facts of residence before decree.
2. DivorceFindings as to Plaintiff's Residence Conclusive.
Findings as to plaintiff's residence, which is jurisdictional fact in divorce action, are
as conclusive as on any other fact issue in case.
3. DivorcePlaintiff's Return to State of Former Residence after Obtaining Divorce Not
Ground for Annulment.
Statute requiring six months' residence to obtain a divorce does not require that bona
fide resident for such period before filing complaint reside in state for any specified
time, and mere showing that he returned to state of former residence after obtaining
divorce does not warrant annulment of decree, but is material only on question of
intention to become resident of county in which suit was brought.
See 19 C.J. sec. 414, p. 166, n. 20 (new); sec. 415, p. 167, n. 31 (new); sec. 436, p. 175, n. 66.
On petition for rehearing. Rehearing denied.
OPINION
By the Court, Sanders, J.:
We shall supplement the statement of the facts in order that there may be no
misunderstanding of the questions of law presented in argument for a rehearing.
In October, 1922, Nathan A. Confer commenced an action in the district court for Washoe
County against Emma E. Confer for a divorce, upon the ground of extreme cruelty, alleging
residence in that county for a period of six months before the filing of his complaint.
Summons and copy of the complaint were served personally on the defendant at her place of
residence in Pennsylvania. She came to Reno, Washoe County, Nevada, in response to said
summons, appeared in the action, and filed an answer to the complaint.
49 Nev. 18, 27 (1925) Confer v. District Court
Subsequently she filed an amended answer, in which she alleged, in paragraph II thereof, as
follows:
Answering the allegations contained in paragraph II of plaintiff's complaint, defendant
alleges that she has no knowledge of the matters and things in said paragraph alleged, and
denies the same upon information and belief, and in this connection defendant avers that
plaintiff, on or about the 18th day of April, 1922, without any cause or provocation upon her
part, and without informing defendant of his purpose, suddenly and mysteriously left the
home of plaintiff and defendant in the borough of Hamburg, county of Berks, State of
Pennsylvania, and that plaintiff's whereabouts remained unknown to defendant until service
of process in the above-entitled action was made upon her in the State of Pennsylvania, on or
about the 31st day of October, 1922.
Paragraph II of the complaint reads as follows:
That the plaintiff is now, was, and has been an actual resident of the city of Reno, county
of Washoe, State of Nevada, for the period of more than six months immediately preceding
the commencement of this action.
In her answer, the defendant admitted and denied portions of the complaint, and for further
and separate defense, and by way of cross-complaint, alleged, in substance, that the plaintiff,
on or about the 18th day of April, 1922, without justifiable cause, willfully and without the
consent of the defendant, and against her will, deserted the defendant. She alleged that
plaintiff was the owner of property, consisting of real estate in the States of Pennsylvania and
New Jersey, of the approximate value of $95,000, and was the owner of personal property of
the approximate value of $25,000. She alleged that she was without any means of support,
excepting the sum of $1,500 invested in Liberty bonds, and had no income excepting the
interest received from said bonds; that the sum of $250 was a reasonable sum to be allowed
and paid monthly by the plaintiff to the defendant for her permanent support and
maintenance. The defendant prayed judgment that the plaintiff take nothing by his action,
and that the defendant have judgment against the plaintiff for the sum of $250 per month
as and for her separate maintenance and support, and for such other and further
equitable relief as might be just and equitable in the premises.
49 Nev. 18, 28 (1925) Confer v. District Court
nothing by his action, and that the defendant have judgment against the plaintiff for the sum
of $250 per month as and for her separate maintenance and support, and for such other and
further equitable relief as might be just and equitable in the premises. The plaintiff made
reply to the answer and cross-complaint. After a hearing upon the pleadings and evidence, the
trial court found, among other of its findings, as follows:
The court further finds that plaintiff is now, was, and has been an actual resident of the
city of Reno, county of Washoe, State of Nevada, for a period of more than six months
immediately preceding the commencement of this action, and that plaintiff for more than six
months next before filing his complaint, and before the commencement of said action, was
physically and corporeally present in Washoe County, Nevada, in which county he had his
only home, place of residence, and domicile.
Upon its findings of fact and conclusions of law, the court, on the 18th day of July, 1923,
rendered judgment in favor of the plaintiff for divorce, and adjudged and decreed that the
plaintiff pay to the defendant the sum of $50 per month for her permanent support and
maintenance and as alimony; the court reserving the right to increase or decrease said sum
upon proper application of either party.
In the answer of respondents, it is alleged and not denied that the said sum of $50 per
month has been paid to the defendant and accepted by her as permanent alimony in
accordance with said judgment and decree.
On the 30th day of October, 1924, Emma E. Confer filed suit against Nathan A. Confer in
the district court for Washoe County, to have the decree of divorce granted Nathan A. Confer
vacated and annulled. Upon her verified complaint and affidavit, setting forth the
nonresidence of the defendant, the plaintiff made application to the Honorable George A.
Bartlett, judge of said court, for an order for service of the summons by its publication. The
court declined to grant the order. Thereupon Emma E. Confer applied to this court for and
obtained an alternative writ of mandamus commanding the respondent court to make
said order, or show cause before this court why it had not done so.
49 Nev. 18, 29 (1925) Confer v. District Court
for and obtained an alternative writ of mandamus commanding the respondent court to make
said order, or show cause before this court why it had not done so.
In our former opinion, the action of the respondent, in refusing to grant the order, was
upheld, and the petition for the writ denied, upon the ground that the complaint of Emma E.
Confer did not state a valid cause of action in equity to annul said decree of divorce. The
question now presented for decision is, was our decision right or was it wrong? We shall not
reiterate the facts stated in the complaint to have the decree annulled, but refer to our opinion,
filed on April 6, 1925, and reported in 234 P. 688.
1. The substance of the argument in the petition for rehearing is that this court, in declining
it issue the writ of mandamus, has, in effect, decided that a nonresident who could not obtain
a divorce in the state of his real residence can establish a temporary residence in Nevada for
the period of six months and obtain a divorce against his nonresident wife. It is contended
that public policy and the vindication of the law of this state demand that our former decision
be righted, if for no other reason than to preserve the integrity of our courts, and thus suppress
the evil of granting divorces to those who come into this jurisdiction from all parts of the
glove for the sole purpose of obtaining them.
If there were anything in our former opinion, or in any prior opinion of this court, holding
or intimating that it is permissible under the law of this state for a person who could not
obtain a divorce in the state or country of his or her real residence to establish a temporary
residence in Nevada and obtain a divorce, we should gladly overrule the decision.
The object of the legislature in requiring a residence of six months in this state before a
divorce can be obtained is apparent. Its purpose it to prevent a fraud upon the law of the state
by nonresidents, and is in aid of restricting the dissolution of the marriage status except at the
suit of a resident of this state. Hiner v. Hiner, 153 Cal. 256, 94 P. 1044. Six months' residence
stands upon the same footing in law as residence for any longer period required for
divorce.
49 Nev. 18, 30 (1925) Confer v. District Court
stands upon the same footing in law as residence for any longer period required for divorce.
Residence within the meaning of the statute is discussed and defined in the following cases:
Fleming v. Fleming, 36 Nev. 135, 134 P. 445; Worthington v. District Court, 37 Nev. 214,
142 P. 230, L.R.A. 1916a, 696, Ann. Cas. 1916e, 1097; Presson v. Presson, 38 Nev. 203, 147
P. 1081; Aspinwall v. Aspinwall, 40 Nev. 55, 184 P. 810; Blakeslee v. Blakeslee, 41 Nev.
243, 168 P. 950; Walker v. Walker, 45 Nev. 105, 198 P. 433.
It is pointed out in argument that it is the duty of this court, in view of the decisions cited,
to construe the statute in respect to residence in divorce actions according to its own light,
and not be controlled by the decisions of other courts, criticizing in this connection the cases
cited in our opinion. Clark v. Clark, 64 Mont. 386, 210 P. 93, and Orr v. Orr, 75 Or. 137, 144
P. 753, 146 P. 964. We attribute the argument to counsels' misconception of the statute and
the point decided in our former opinion, namely, that fraud in alleging or establishing
required residence in a divorce action, being a jurisdictional fact, is not available to annul the
decree.
It is strenuously insisted that where residence constitutes the basis of jurisdiction, and
divorce is obtained by the commission of fraud upon the jurisdiction of the court, it is the
duty of the court to vindicate the statute in respect to residence in divorce actions as construed
and interpreted in the Nevada cases upon that subject. In answer to this proposition, it is
enough to say that the respondent court, in granting a divorce to Nathan A. Confer, actually
found that it had jurisdiction of the parties and the subject matter. While the evidence upon
which this finding was made is not before us, Nathan A. Confer must have satisfied the court
that he was a resident of Washoe County, and we cannot presume that the court failed of its
duty in respect to the facts pertaining to that issue.
2. In our former opinion it is pointed out that the allegations in the complaint for divorce in
regard to residence stand upon the same footing as any other allegation of facts showing the
right to a divorce.
49 Nev. 18, 31 (1925) Confer v. District Court
allegation of facts showing the right to a divorce. 9 Cal. Jur. sec. 61, p. 695. Mrs. Confer
appeared in said action and contested her husband's right to a divorce, and sought affirmative
relief. More than a year after the entering of the decree, and after having presumably accepted
its benefits, she seeks to have the same annulled, upon the ground of fraud perpetrated by her
husband upon the jurisdiction of the court. We are of opinion that the authorities are
decidedly against the proposition, and that the courts cannot be used in that way. Residence
being a jurisdictional fact, the findings thereon are just as conclusive as findings upon any
other issue of fact in the case.
In the case of Crane v. Deacon (Mo. Sup.) 253 S.W. 1068, the court said:
The finding of such facts is res adjudicata unless there is a difference between the finding
of jurisdictional facts and any other facts necessary to make out a case. The rule, to which we
can find no exception, is that, where it is necessary for a court to find certain facts in pais
which give it jurisdiction, the finding of such facts is res adjudicata between the parties, the
same as any other facts constituting a cause of action. The courts of this state, in a collateral
attack upon a judgment, have made no difference between the facts which confer jurisdiction
and any other facts to be determined in the case [citing cases]. Likewise there is no difference
in a direct attack upon a judgment between jurisdictional facts and other facts necessary to be
proven in support of the cause of actionciting Bigelow on Estoppel (6th ed.) p. 177; 2
Black on Judgments, sec. 615.
Continuing, the court said:
This court has applied that doctrine to decrees for divorce. In the case of Richardson v.
Stowe, 102 Mo. 33, 14 S.W. 810, a suit to set aside a decree of divorce, it was held that, if the
cause of action was vitiated by fraud, it is a defense which must be interposed, and, unless its
interposition is prevented by fraud, it cannot be asserted to avoid the judgment. This court in
that case said: * * * 'The decree of divorce was a final determination of every fact set out
in the petition in this case as a cause for its vacation, and was a complete answer to it.'"
49 Nev. 18, 32 (1925) Confer v. District Court
case said: * * * The decree of divorce was a final determination of every fact set out in the
petition in this case as a cause for its vacation, and was a complete answer to it.'
Continuing, the court said:
The alleged facts as to jurisdiction were in issue in the divorce case involved here. The
defendant was served with a copy of the petition; he appeared in court when the case was
tried; he employed an attorney to represent him; the facts were adjudicated by the court as
conclusively as any other facts in any case where issue is joined and determined by the court.
The Supreme Court of Missouri has thus emphasized the conclusiveness of the finding of
the jurisdictional facts where the party affected had an opportunity to contest them at the trial.
The decision is in accord with our former opinion herein in respect to the decree being
vitiated by fraud.
It is argued, on the part of Mrs. Confer, that she alleged in her complaint to have the
decree annulled that she was without knowledge of the character of her husband's residence at
the time of trial; that she was ignorant of his bona fide intentions as to residence; that the
facts showing the falsity of the averment in his complaint as to residence were not known to
her at the time of trialyet this court in the face of such averments, erroneously imputed to
Mrs. Confer knowledge of such facts, and, in effect, held that she was an actor in the fraud
perpetrated upon the court. We stated in the opinion that:
The allegation of residence was denied by the defendant (petitioner), upon her
information and belief. No one, except the plaintiff, knew better than the defendant, petitioner
herein, whether the allegation was true or not. The obligation devolved upon her to give the
court all the information which she now shows she possessed concerning the fact of the
plaintiff's residence.
It is not within the range of reason to assume that when Mrs. Confer denied the fact of
plaintiff's residence upon information and belief she was not advised of what constituted
residence, and that residence was a jurisdictional fact to be established by clear and
convincing proof.
49 Nev. 18, 33 (1925) Confer v. District Court
upon information and belief she was not advised of what constituted residence, and that
residence was a jurisdictional fact to be established by clear and convincing proof. It certainly
devolved upon her to at least give the court the benefit of her information, and also the
grounds for her belief that Mr. Confer was not a resident of Washoe County. We adhere to
the statement made in our former opinion.
3. It is insisted that the demurrer to the petition for the writ of mandamus admits that
Nathan A. Confer came to Reno, Nevada, for the express purpose of obtaining a divorce, and
that, after establishing a temporary residence in a hotel in the city of Reno for the period of
six months, and after obtaining his decree of divorce, he immediately left Nevada and
returned to his real residence in the State of Pennsylvania. Hence it is argued that the doctrine
of extrinsic fraud has no application. The statute which prescribes six months' residence to
obtain a divorce does not require that the plaintiff reside in this state for any specified length
of time if he be a bona fide resident for the required period of six months prior to the filing of
the complaint. Nathan A. Confer had a legal right, in good faith, to change his place of
residence, and the mere showing that he returned to Pennsylvania instead of going to some
other state is, in view of his former residence in Pennsylvania, material only as tending to
throw light upon his intentions at the time he claimed to have become a resident of Washoe
County.
The court, in Holmes v. Holmes, 189 Iowa, 256, 176 N.W. 691, in commenting upon a
similar situation, said:
The court passed upon the question of the good faith of her intentions in the divorce suit,
and held that she was a bona fide resident thereof. That she returned to Minneapolis and
resumed her former position, shortly after the decree was entered, may tend, to some extent,
to indicate that the purpose of her coming to Iowa was to obtain a divorce, but is wholly
insufficient alone to justify the court in setting aside the judgment for want of jurisdiction to
enter the same, or upon the ground of fraud."
49 Nev. 18, 34 (1925) Confer v. District Court
of jurisdiction to enter the same, or upon the ground of fraud.
In Whise v. Whise, 36 Nev. 16, 131 P. 967, 44 L.R.A. (N.S.) 689, the court uses the
following language:
The fact, if it be a fact, that Whise moved from the State of Nevada after the rendition of
a judgment and the filing of the decree, could not, we think, be considered as newly
discovered evidence that would affect the material issues of the case. Residence is a matter of
intention, and has been generally so held. Both parties to this action had submitted
themselves to the jurisdiction of the trial court, in which court there had been a trial and
determination of all the issues, and at the conclusion of the controversy either party had the
right to go wherever he or she saw fit.
The facts stated in the petitioner's complaint impel us to the conclusion that the complaint
fails to state a cause of action to annul the decree of divorce for want of jurisdiction to enter
the same, or upon the ground of fraud.
We therefore deny the petition for rehearing, and adhere to our former opinion and
decision.
____________
49 Nev. 35, 35 (1925) Robison v. Mathis
ROBISON v. MATHIS
No. 2656
April 6, 1925. 234 P. 690.
1. PleadingDemurrer for Uncertainty Waived by Answering.
Right to rely on demurrer to complaint on ground of uncertainty is waived by answering, on demurrer
being overruled.
2. Waters and Water CoursesComplaint, Alleging Ultimate Facts Showing Ownership of
Water Right and Unlawful Interference, Sufficient.
Complaint to establish right to use of certain quantity of water for watering sheep, and to enjoin
interference therewith, need allege only ultimate facts showing plaintiffs' ownership of such right and
unlawful interference therewith; and allegations of how plaintiffs appropriated the waters, and the nature
and size of their means of appropriation, are unnecessary.
3. Waters and Water CoursesComplaint Held to State Ultimate Facts Showing Ownership
of Water Right.
The allegations of complaint of a valid appropriation by plaintiffs' predecessors in interest, namely, of
waters subject to appropriation, application of such waters to a beneficial use, the watering of
approximately 2,500 head of sheep, and a continuation of such use between May and November of each
year from before 1905 to 1921, when their right to the use was conveyed to plaintiffs, are not legal
conclusions, but statements of ultimate facts showing ownership in plaintiffs of the use of the described
waters.
4. Waters and Water CoursesComplaint Need Not Set Out Water Right by Standard of
Measurement.
In the absence of statute requiring plaintiffs' claimed water right to be set out in the complaint by a
certain standard of measurement, such an allegation is unnecessary.
5. PleadingObjection to Complaint for Uncertainty Waived by Answering.
Any objection for uncertainty to the description, in the complaint, of plaintiffs' water right as
sufficient to water approximately 2,500 sheep, was waived when defendant answered on demurrer to
complaint being overruled.
6. Waters and Water CoursesRisk of Permanent Loss of Right to Use Waters Authorizing
Injunction Held to Appear from Complaint.
Risk of permanent loss by plaintiffs of their right to use of the waters, authorizing injunction, held to
appear from complaint, in view of alleged interference with right and threat to continue it, and
defendant's use of the water, inferably under claim of right, which could by lapse of time become the
foundation of an adverse right in defendant.
7. Appeal and ErrorPoint Not Discussed in Brief, Other Than to Allege Error, Deemed
Waived.
Claimed errors in rulings on pleadings not being supported by argument or discussed in brief, further
than the mere statement of error, will be deemed waived.
49 Nev. 35, 36 (1925) Robison v. Mathis
8. Appeal and ErrorAssigned Error in Striking Out Portion of Answer Disregarded, Notice of Motion to
Strike Not Appearing in Bill of Exceptions.
Assigned error in striking out portion of answer must be disregarded; notice of motion to strike,
enabling the appellate court to know what portion of the answer was stricken, not being before it in a bill
of exceptions.
9. Appeal and ErrorNotice among Papers Constituting Judgment Roll, but Not Properly Part of it,
Disregarded.
Notice of motion to strike portion of answer, though appearing among the papers constituting the
judgment roll, not being properly a part of it, must be disregarded.
10. Waters and Water CoursesJudgment Establishing Water Right Held Sufficiently
Certain as to Quantity.
Judgment decreeing plaintiffs to be the owners of the right to the use of the waters of a certain spring
to water, at plaintiffs' troughs and reservoir near there, 2,500 head of sheep at all times between certain
months of each year, held sufficiently certain as to the quantity of water to which plaintiffs were entitled,
where defendant made no claim to the water adverse to plaintiffs, and did not set up a right to use it and
ask to have the right defined, but merely denied plaintiffs' claim, and so is unaffected by any uncertainty.
11. Appeal and ErrorEvery Intendment To Be Drawn in Favor of Judgment, on Appeal on
Judgment Roll.
Appeal being on the judgment roll, so that the evidence is not before the court, every intendment is to
be drawn in favor of the judgment.
12. Appeal and ErrorIn Absence of Evidence to Contrary, Method of Using Appropriated
Water Set Out in Complaint and Judgment Must Be Deemed Sufficiently Economical.
Plaintiffs' means of utilizing their right by appropriation to the use of the waters of a spring to a
certain amount, being set out in the complaint and judgment for plaintiffs in action to quiet title to the
right, must, in absence of evidence to the contrary, be deemed a sufficiently economical method to
accomplish that purpose and leave any surplus available for appropriation by others.
See (1, 5) 31 Cyc. p. 719, n. 78; p. 727, n. 38; (2, 3, 4, 6, 10) 40 Cyc. p. 732, n. 14, 18; p. 733, n. 21 (new); p.
736, n. 54; p. 739, n. 80; (7, 8, 9, 11, 12) 3 C.J. sec. 1591, p. 1428, n. 50, 53; 4 C.J. sec. 1828, p. 226, n.
59; sec. 2363, p. 554, n. 37; sec. 2665, p. 735, n. 27; sec. 2677, p. 745, n. 71.
Appeal from Ninth Judicial District Court, White Pine County; C.J. McFadden, Judge.
Action by James F. Robison and others against Thomas Mathis. Judgment for plaintiffs,
and defendant appeals. Affirmed.
49 Nev. 35, 37 (1925) Robison v. Mathis
J.M. Lockhart and C.A. Eddy, for Appellant:
To establish alleged water rights complaint should state fully all facts concerning
appropriation, means, and amount of water appropriated in some standard measurement.
Stats. 1913, 193; Ramelli v. Sorge, 38 Nev. 552; Town of Sterling v. Ditch Co., 94 P. 339.
Facts and not legal conclusions should be stated in order to determine whether valid
appropriation was made. Farmers etc. Co. v. Southworth, 21 P. 1028; Rev. Laws, 5038.
Claim that plaintiff is entitled to all water in creek during dry season is too indefinite.
Porter v. Pettengill, 110 P. 393.
It is not sufficient to allege mere priority of right. This is legal conclusion. One must aver
all substantive facts constituting such priority. Church v. Stillwell, 54 P. 395.
Complaint for injunction is bad if it does not state how irreparable injury will be done.
Willie v. Lauridson, 118 P. 530; Thorn v. Sweeney, 12 Nev. 256; Mechanics Foundry Co. v.
Ryall, 17 P. 703.
Public domain is used for pasture at sufferance of federal government and not through any
rights granted to anyone. Sifers v. Johnson, 65 P. 710.
Statute allows plea of several defenses. Rev. Laws, 5050.
New matter constituting defense, no matter how named, may be pleaded. Rev. Laws, 5050,
5046; Yori v. Phenix, 38 Nev. 277.
Chandler & Quayle, for Respondents:
Any error in overruling demurrer is waived by pleading over, except only as to lack of
jurisdiction and question as to failure to state cause of action or defense. Lonkey v. Wells, 16
Nev. 271; Harden v. Emmons, 24 Nev. 329.
Assuming there was uncertainty in statement of quantity of water diverted, there was attempt
made to state it and not total failure of allegation, and any lack of definiteness should have
been reached by demurrer.
49 Nev. 35, 38 (1925) Robison v. Mathis
Amount of land which could be irrigated is not too indefinite a description. Church v.
Stillwell, 54 P. 395; Roeder v. Stein, 23 Nev. 92.
Right to use water is real property. In action to quiet title to real property it is not necessary
that steps by which title was secured be stated, but it is sufficient to allege ultimate facts
showing ownership, leaving deraignment to be established by evidence. Wiel on Water
Rights in Western States (3d ed.), 694; Town of Sterling v. Ditch Co., 94 P. 339.
Although decree was erroneous in allowing respondents all water in their ditch,
irrespective of season's necessity, and it had to be modified by eliminating all directions
touching any fixed quantity of water to be taken, yet error did not affect verdict and would not
necessitate reversal. Gotelli v. Cardelli, 26 Nev. 382.
Were it not for Ramelli v. Sorgi, 38 Nev. 352, our decisions would strongly preponderate
against proposition that judgment should specify precise quantity of water to be awarded for
irrigating purposes, since Walsh v. Wallace, 26 Nev. 290, was apparently repudiated by later
case of Gotelli v. Cardelli, supra.
OPINION
By the Court, Ducker, J.:
This is an action to quiet title to the right of the use of the waters of a certain spring, for
the purpose of watering 2,500 head of sheep. The spring is known as Watkins Spring and is
situated in White Pine County, Nevada. Judgment was rendered for plaintiffs. The appeal is
taken from the judgment. We will refer to the parties as plaintiffs and defendant.
Plaintiffs' statement in the brief of the substance of the complaint is concise, and, for
convenience, is adopted. It is alleged in the complaint that Watkins Spring is a natural source
and spring of water from which, in its natural state, a small stream of water flows in a
well-defined channel; that prior to the year 1905, and a time when the waters of the spring
were unappropriated, plaintiffs' predecessors in interest appropriated, diverted, and used
the said waters for watering approximately 2,500 head of sheep; that to the end of so
beneficially using the waters of said spring, they constructed near said spring impounding
facilities suitable for watering of said sheep, and diverted the water of said spring into
said impounding facilities, and used the said water for watering said sheep, and
continued to so water said sheep from the waters of said spring during the grazing
season, that is, between April and November of each year, since the appropriation and
diversion were so made until the year 1921, when they conveyed their right to plaintiffs,
and the plaintiffs ever since have been and are now the owners of the right to use
sufficient water of and from said spring to water 2,500 head of sheep; that defendant has
wrongfully inclosed the spring and plaintiffs' impounding facilities by fence, and refuses
to permit plaintiffs to water their sheep therefrom and is using it for his own benefit for
the irrigation of certain lands, and threatens to continue to do so; that on July 25, 1921,
plaintiffs attempted to so water not exceeding 2,500 head of sheep, but defendant
wrongfully closed and locked the gate in said fence and refused to open it, personally took
a position near plaintiffs' water troughs, and forbade plaintiffs to open the gate or to
water the sheep from said water troughs or from the waters of the spring, and wrongfully
prevented plaintiffs from doing so, and informed plaintiffs that he would not permit them
to so water any sheep in the future; that defendant threatens to prevent such watering by
the use of violence if necessary; that if defendant persists in so preventing such watering
of plaintiffs' sheep as he threatens to do unless enjoined by the court, plaintiffs' right to
the use of the water will be permanently lost and plaintiffs will be compelled to abandon a
large and valuable sheep range surrounding the spring and used for many years by
plaintiffs' predecessors, and which plaintiffs have the right to use, but which can only be
utilized by watering the sheep at Watkins Spring; that by the loss of the right
49 Nev. 35, 39 (1925) Robison v. Mathis
unappropriated, plaintiffs' predecessors in interest appropriated, diverted, and used the said
waters for watering approximately 2,500 head of sheep; that to the end of so beneficially
using the waters of said spring, they constructed near said spring impounding facilities
suitable for watering of said sheep, and diverted the water of said spring into said impounding
facilities, and used the said water for watering said sheep, and continued to so water said
sheep from the waters of said spring during the grazing season, that is, between April and
November of each year, since the appropriation and diversion were so made until the year
1921, when they conveyed their right to plaintiffs, and the plaintiffs ever since have been and
are now the owners of the right to use sufficient water of and from said spring to water 2,500
head of sheep; that defendant has wrongfully inclosed the spring and plaintiffs' impounding
facilities by fence, and refuses to permit plaintiffs to water their sheep therefrom and is using
it for his own benefit for the irrigation of certain lands, and threatens to continue to do so; that
on July 25, 1921, plaintiffs attempted to so water not exceeding 2,500 head of sheep, but
defendant wrongfully closed and locked the gate in said fence and refused to open it,
personally took a position near plaintiffs' water troughs, and forbade plaintiffs to open the
gate or to water the sheep from said water troughs or from the waters of the spring, and
wrongfully prevented plaintiffs from doing so, and informed plaintiffs that he would not
permit them to so water any sheep in the future; that defendant threatens to prevent such
watering by the use of violence if necessary; that if defendant persists in so preventing such
watering of plaintiffs' sheep as he threatens to do unless enjoined by the court, plaintiffs' right
to the use of the water will be permanently lost and plaintiffs will be compelled to abandon a
large and valuable sheep range surrounding the spring and used for many years by plaintiffs'
predecessors, and which plaintiffs have the right to use, but which can only be utilized by
watering the sheep at Watkins Spring; that by the loss of the right to use the waters of the
spring, plaintiffs will suffer irreparable injury; that plaintiffs have no plain, speedy, or
adequate remedy at law.
49 Nev. 35, 40 (1925) Robison v. Mathis
by the loss of the right to use the waters of the spring, plaintiffs will suffer irreparable injury;
that plaintiffs have no plain, speedy, or adequate remedy at law. Plaintiffs prayed that their
title to the right to use the water be quieted, for an injunction, temporary and permanent, for
costs, and general relief.
Defendant demurred to the complaint for insufficiency of facts to state a cause of action,
and also on the ground that it is ambiguous, unintelligible, and uncertain in these respects, to
wit: That it failed to specify the amount of water flowing from the spring; the amount
necessary to water 2,500 head of sheep; the amount used therefor; whether all was necessary
all of the time or any part of the time; or whether or not there is a surplus of water flowing
from the spring more than is necessary to water 2,500 head of sheep; that it does not specify
the character of plaintiffs' watering facilities, or the nature of plaintiffs' right to the sheep
range, claimed in the complaint.
The demurrer was overruled, and defendant filed an answer in which the material
allegations of the complaint are denied. The answer contains an affirmative defense in which
it is alleged that Watkins Spring is located on land comprising a United States homestead
entry made by the defendant in November, 1920; that defendant entered upon the land on or
about July 1, 1918, when it was unsurveyed public domain of the United States, and then and
there established his home thereon, and ever since said date has continuously resided thereon
with his family; that the Watkins Spring is an artificial well fed by the percolating waters
under the homestead premises, collected by means of artificial channels, and does not flow
off or from the homestead premises; and that the waters thereof are the property of defendant,
and belong to the soil of defendant's homestead. The answer also contains what is called a
cross-complaint, setting up two causes of action against plaintiffs, in the first of which it was
sought to recover damages from plaintiffs on account of the alleged herding and grazing of
their sheep within the one-mile limit of defendant's said home on or about the 3d day of
August, 1920, and on numerous occasions thereafter.
49 Nev. 35, 41 (1925) Robison v. Mathis
the one-mile limit of defendant's said home on or about the 3d day of August, 1920, and on
numerous occasions thereafter. In the second cause of action alleged in said cross-complaint,
it was sought to recover damages from the plaintiffs for trespass in herding and grazing their
sheep on the said land of defendant in the month of August, 1920, and on numerous
occasions thereafter.
Plaintiffs demurred to the affirmative defense on the ground that it failed to state a cause
of action, and demurred to the alleged causes of action in the cross-complaint on the ground
that they were not pleadable as counterclaims in this action. Plaintiffs also made a motion to
strike a portion of the answer. The demurrers to the answer were sustained, and the motions
to strike granted. Whereupon, defendant filed an amended answer, in which the material
allegations of the complaint are specifically denied. The defendant demanded a jury trial,
which was denied by the court. Thereafter the case was tried by the court, which made its
findings of fact and conclusions of law in favor of plaintiffs, and entered judgment and decree
in their favor decreeing that they are the owners of the right to use sufficient waters of
Watkins Spring to water at plaintiffs' watering troughs, and at the reservoir near said spring,
2,500 head of sheep, at any and all times between the months of April and November of each
year, and that defendant has no right, title, or interest in said waters adverse to the said rights
of plaintiffs. It was also adjudged and decreed that plaintiffs' said right had vested and
accrued in plaintiffs' predecessors in interest prior to the year 1905 and prior to the homestead
entry, and that said homestead right of defendant is subject to said vested and accrued water
right of plaintiffs, and subject to the right of plaintiffs to maintain said watering troughs and
reservoirs thereon, and to have access thereto at all times between the months of April and
November of each year for the purpose of watering 2,500 head of sheep. It was also adjudged:
That in order to enable plaintiffs to exercise said watering right and their said right of
access without undue friction between plaintiffs and defendant, and with as little damage
to defendant as practicable, the defendant shall, on or before the 1st day of April, 1924,
construct, and thereafter maintain in good repair and condition, a sheep-proof fence
along certain specified lines and courses inclosing a small tract of land over which
plaintiffs' sheep might enter for watering, and leave without damage to defendant's
premises; and that on the failure of defendant to construct such a fence the plaintiffs
could, at their option, build and construct the same."
49 Nev. 35, 42 (1925) Robison v. Mathis
undue friction between plaintiffs and defendant, and with as little damage to defendant as
practicable, the defendant shall, on or before the 1st day of April, 1924, construct, and
thereafter maintain in good repair and condition, a sheep-proof fence along certain specified
lines and courses inclosing a small tract of land over which plaintiffs' sheep might enter for
watering, and leave without damage to defendant's premises; and that on the failure of
defendant to construct such a fence the plaintiffs could, at their option, build and construct the
same.
Defendant was permanently enjoined from interfering with the right decreed to plaintiff.
1, 2. Error is assigned in the overruling of the demurrer to the complaint. As heretofore
specified in the statement of facts, the demurrer sets out several deficiencies of the complaint
wherein it is alleged that it is ambiguous, unintelligible, and uncertain. If the complaint is
merely uncertain as to these matters, the defendant waived his right to rely upon his
demurrers on this ground by answering. Lonkey v. Wells, 16 Nev. 271; Hardin v. Elkus, 24
Nev. 329, 53 P. 854. But these matters are not asserted against the sufficiency of the
complaint. It is insisted that the complaint is fatally defective in not alleging all of the facts as
to how plaintiffs' predecessors in interest appropriated the waters claimed, the nature and size
of their means of appropriation, and quantity of water appropriated according to the standard
of measurement prescribed by the legislature of the state. It is not necessary to state these
matters in the complaint.
The action was instituted for the purpose of obtaining a decree establishing plaintiffs' right
to the use of a certain quantity of water for watering sheep, and for an injunction restraining
defendant from interfering with that right. Only allegations of ultimate facts showing the
ownership of such right by plaintiffs, and the unlawful interference therewith, were essential,
and these appear in the complaint.
3. It alleges a valid appropriation by plaintiffs' predecessors in interest, namely, an
appropriation by them of waters subject to appropriation. It alleges the application of
such waters to be a beneficial use, viz., for the watering of approximately 2,500 head of
sheep, and a continuation of such use between the months of April and November of each
year from a time prior to the year 1905 until the year 1921, when their right to the use
was conveyed to plaintiffs.
49 Nev. 35, 43 (1925) Robison v. Mathis
predecessors in interest, namely, an appropriation by them of waters subject to appropriation.
It alleges the application of such waters to be a beneficial use, viz., for the watering of
approximately 2,500 head of sheep, and a continuation of such use between the months of
April and November of each year from a time prior to the year 1905 until the year 1921, when
their right to the use was conveyed to plaintiffs. These are not legal conclusions, but the
statements of ultimate facts showing ownershiip of the right to the use of the waters described
in the complaint in plaintiffs. The additional matters held essential in the Colorado cases cited
by counsel for defendant are probative only. Wiel on Water Rights in Western States. See,
also, Hague v. Nephi etc., Co., 16 Utah, 421, 52 P. 765, 41 L.R.A. 311, 67 Am. St. Rep. 634;
Reach v. Spokane R.W. Co., 25 Mont. 379, 65 P. 111.
4, 5. The complaint is not deficient in not stating the quantity of water to which plaintiffs
have the right. The quantity is stated as sufficient to water approximately 2,500 head of
sheep. In the absence of a statute requiring a plaintiff's claimed water right to be set out in the
complaint by a certain standard of measurement, such an allegation is unnecessary. Whatever
objection there may have been to the description of the water right as sufficient to water
approximately 2,500 head of sheep, for uncertainty, was waived when the defendant
answered.
6. There is no merit in the claim that the complaint does not warrant an injunction, because
it fails to show that the plaintiffs will be irreparably injured unless the defendant is restrained
from interfering with the alleged water right. Defendant's interference with plaintiffs' right to
the use of the waters of the spring, his threat to continue such interference, and his use of said
waters for his own benefit for the irrigation of lands, which are alleged in the complaint, and
which, it is inferable, were under a claim of right, could become, by the lapse of time, the
foundation for an adverse right in the defendant. The risk of a permanent loss by the
plaintiffs of their right to the use of the waters, therefore, appeared from the complaint
and authorized the injunction.
49 Nev. 35, 44 (1925) Robison v. Mathis
the plaintiffs of their right to the use of the waters, therefore, appeared from the complaint
and authorized the injunction.
7. In the opening brief filed by counsel for defendant appears the statement that the court
erred in striking from defendant's answer his separate and affirmative defense. An
examination of the record reveals that this statement is not correct. The court did not strike
said defense, but sustained plaintiffs' demurrer to it. However, further than the mere statement
of error, and the assertion that the matter stated constituted a legal defense, the point is not
discussed either in the opening or closing brief, and must therefore be deemed waived. State
v. King, 35 Nev. 154, 126 P. 880; in Re Hegarty's Estate, 45 Nev. 145, 199 P. 81. This court
will not be concerned with alleged errors which counsel do not consider worthy of discussion.
The errors alleged to have been committed by the court in striking the cross-complaint from
the defendant's answer, and in sustaining plaintiffs' motion to strike out a portion of the
original answer, are also unsupported by any argument in the briefs; counsel contenting
themselves with the mere statements of error. Hence they are deemed waived. The court did
not strike the so-called cross-complaint, but sustained plaintiffs' demurrer to the case of
action stated in it.
8, 9. We must also disregard the error assigned in the court's ruling in striking out a
portion of the original answer for another reason. The notice of motion to strike, enabling us
to know what portion of the answer was stricken, is not before us in a bill of exceptions.
True, it appears among the papers constituting the judgment roll in this case; but as it is not
properly a part of the judgment roll, it must be disregarded.
10-12. It is asserted that the judgment is so indefinite that it is null and void and cannot be
enforced. The judgment decreed that plaintiffs are the owners of the right to use sufficient of
the waters of Watkins Spring to water, at plaintiffs' watering troughs and at the reservoir
near said springs, 2,500 head of sheep at any and all times between the months of April
and November of each year.
49 Nev. 35, 45 (1925) Robison v. Mathis
reservoir near said springs, 2,500 head of sheep at any and all times between the months of
April and November of each year. Uncertainty as to the quantity of water to which plaintiffs
are entitled is the ground of the objection. In support of this contention, former cases in this
court touching upon the necessity of certainty of the quantity of water decreed to the claimant
are cited by defendant. These cases were decided upon a different state of facts. They are all
cases in which the defendant was affirmatively asserting certain rights to the use of waters of
a stream as against the plaintiff. In such a case, it is essential that the right or rights found be
defined in quantity with as much certainty as possible, to the end that future litigation in
regard thereto be avoided. Without intimating whether, in a case of that character, the decree
before us would be sufficiently certain as to the quantity of water awarded, we are of the
opinion that it is not objectionable in this regard under the facts of this case. Here the
defendant makes no claim to the waters of the spring adverse to the plaintiffs. In his amended
answer he did not set up a right to the use of the water and ask to have such right defined and
awarded, but contented himself with denying plaintiff's claim. He is therefore unaffected by
the uncertainty which he alleges against the judgment. Moreover, as this appeal is on the
judgment roll, the evidence is not before us, and every intendment must be drawn in favor of
the judgment. Plaintiffs' means of utilizing their right to the use of the waters of the spring are
set out in the complaint and judgment, and must, in the absence of evidence to the contrary,
be deemed a sufficiently economical method to accomplish that purpose and leave any
surplus available for appropriation and use by the defendant, or others.
Under the circumstances of this case it is not essential to the validity of the judgment that
plaintiffs' right be measured by the legal standard for measurement of water in this state.
Defendant assigns as error the means prescribed in the judgment for securing to plaintiffs
a passage for their sheep to and from their troughs and reservoir; but as the alleged error
is not discussed in the briefs it must be deemed waived.
49 Nev. 35, 46 (1925) Robison v. Mathis
the judgment for securing to plaintiffs a passage for their sheep to and from their troughs and
reservoir; but as the alleged error is not discussed in the briefs it must be deemed waived.
The judgment is affirmed.
____________
49 Nev. 46, 46 (1925) Pittsburg Silver Peak Gold Mining Co. v. Tax Commission
PITTSBURG SILVER PEAK GOLD MINING CO. v. TAX COMMISSION
No. 2628
April 30, 1925. 235 P. 643.
1. TaxationStatute Authorizes Presumption, in Absence of Evidence to Contrary, that Tax
Officials Faithfully and Properly Performed their Official Duties.
Stats. 1913, c. 134 sec. 6, held legislative declaration of general rule that it is presumed, in absence of
evidence to the contrary, that tax officials faithfully and legally performed their official duties, and that in
making an assessment they proceeded upon sufficient and competent evidence to justify their action.
2. TaxationValuations Placed on Property for Taxation Will Be Presumed To Be
Reasonable.
Valuations placed on property for taxation will be presumed to be reasonable.
3. TaxationClear and Convincing Proof is Necessary to Overcome Presumption of
Reasonableness of Valuations of Property for Taxation Purposes.
Clear and convincing proof is necessary to overcome presumption of reasonableness of valuations of
property for taxation purposes.
4. TaxationDepreciation of Mine by Exhaustion of Body of Ore Held Not Proper
Deduction in Determining Net Proceeds for Assessable Purposes.
Depreciation of mine by exhaustion of body of ore held not proper item for deduction, under Stats.
1913, c. 134, sec. 9, unaffected by Stats. 1917, c. 177, being 3 Rev. Laws, p. 3195, by tax commission, in
determining net proceeds for assessable purposes.
5. TaxationMere Increase in Assessment Over Last Assessment Does Not of Itself Prove
Subsequent Assessment as Illegal and Excessive.
Mere increase in assessment over last assessment does not of itself prove subsequent assessment
illegal and excessive.
49 Nev. 46, 47 (1925) Pittsburg Silver Peak Gold Mining Co. v. Tax Commission
6. TaxationValuations, Established and Equalized by State Tax Commission, Held Not
Excessive.
Valuations of mining property and railroad, established and equalized by the state tax commission
pursuant to Act March 20, 1913 (Stats. 1913, c. 134), sec. 6, held not so excessive as to give rise to
implication of fraud or mala fides.
See 37 Cyc. p. 876, n. 99; p. 1030, n. 69; p. 1189, n. 11; p. 1190, n. 15 (new).
Appeal from First Judicial District Court, Ormsby County; Frank P. Langan, Judge.
Suit by the Pittsburg Silver Peak Gold Mining Company and another against the State Tax
Commission and others. From an order overruling their motion for new trial, defendants
appeal. Reversed and Remanded.
(Coleman, C.J., dissenting.)
M.A. Diskin, Attorney-General, and Thos. E. Powell, Deputy Attorney-General, for
Appellants:
Rule in this class of cases is that judgment of state board empowered to fix valuation for
taxation cannot be set aside by testimony of witnesses that valuation was other than that
fixed, where there is no evidence of fraud or gross error. R.R. Co. v. Backus, 154 U.S. 421;
W.U. Tel. Co. v. Trapp, 186 Fed. 114; Adams Exp. Co. v. Ohio, 165 U.S. 194; C.B.& Q. v.
Babcock, 204 U.S. 585.
Board's judgment is not open to collateral attack. State v. W.F. & Co., 38 Nev. 515; Marsh
v. Arizona, 41 L. Ed. 567.
In McLeod v. Receveur, 71 Fed. 455, court gave same faith and credit to judgment of
board as it would to one of court, citing Stanley v. Supervisors, 121 U.S. 535, to effect that
such judgment can be impeached only by direct proceeding.
Mere allegation that valuation was fraudulent without more specific allegation of fact is
insufficient. Missouri v. Dockery, 48 L. Ed. 133.
Where evidence showed party was taxed upon his own figures and according to statute,
and no fraud appears, party cannot be heard to complain that tax was disproportionate to
others.
49 Nev. 46, 48 (1925) Pittsburg Silver Peak Gold Mining Co. v. Tax Commission
appears, party cannot be heard to complain that tax was disproportionate to others. R.R. Co.
v. Middlekamp, 65 L Ed. 905.
Burden is upon complainant to show that valuation is unjust and inequitable. Stats. 1913,
180.
Fact is that valuation as fixed by lower court is unjust to state. Respondents stated before
commission that value was $540,000; that 60% of that amount, $324,000, would be fair
valuation for taxing purposes, yet lower court fixed $200,000; respondents' report to
commission showed value to be $800,000, with annual depreciation of $250,000; in latter
part of 1912 and 1913 it produced $700,000, but paid only $527 bullion tax and had net
earning of over $200,000. Judgment should be reversed.
Platt & Sanford, for Respondents:
Complaint need not prove fraud, but only that valuation is unjust or inequitable. Stats.
1913, 180.
Since legislature has provided that court has right to reduce valuation it follows obviously
that it has right to review findings of commission, which is not court of last report.
Statute provides property shall be assessed at full cash value. In State ex rel. C.P. Co., 21
Nev. 179, court quoted statute with approval and issued writ directing commission to hear
proofs regarding valuation and fix it accordingly. State v. Miller, 38 Nev. 494.
Fact of matter is that respondents were cited by commission to show cause why assessment
for 1913 should not be $680,000. After hearing, commission accepted on recommendations
of representatives of company $540,620 as principal basis for assessed valuation, and took
60% or $324,000 for that year instead of $680,000, conceding position of respondents in
present complaint regarding assessment for 1914, when there was no doubt that companies
were on last legs and ready to be dismantled. Instead of adopting substantially same means
for reaching assessed valuation for 1914, commission raised levy from $33,250 in 1913 to
$61,250 and ordered auditor to place assessed valuation on mining property at $420,000,
$100,000 more than for 1913, without considering railroad at all.
49 Nev. 46, 49 (1925) Pittsburg Silver Peak Gold Mining Co. v. Tax Commission
at $420,000, $100,000 more than for 1913, without considering railroad at all. Not content
with that, commission raised railroad from $61,000 to $102,000, making combined valuation
$490,000; not content with that, and at very last moment, another raise was ordered for
combined properties to $592,000. Can any just argument explain why commission placed
valuation of $324,000 for 1913 and, knowing properties were depleted and being worked out,
increased valuation to almost double in 1914?
It is idle to argue about bullion taxes or profits of milling; these matters were adjusted in
conference. Respondents' allegations are supported by evidence and no member of
commission appeared to explain or contradict them. No other testimony, except reports, was
given, and none other is available to this court. Order should be affirmed.
OPINION
By the Court, Sanders, J.:
This is a tax suit of long standing. A decade has elapsed sense it was begun. We refer to
this in no spirit of criticism, but we feel that, when the validity of a tax is involved, the
public, as well as the private taxpayer, is interested in the speedy determination of the
question. A lengthy complaint was filed in March, 1915, in the district court for Ormsby
County, against the Nevada tax commission and the then tax officials of Esmeralda County,
the county in which the taxes were assessed. The case was tried in 1916, decided in 1918, and
brought to this court on appeal from an order entered in July, 1923, overruling the defendants'
motion for a new trial.
The Nevada tax commission was created under a special act of the legislature, approved
March 20, 1913. Stats. 1913, p. 175. The act represents the most recent step in the direction
of centralized control over the revenues of the state, taken with the view to more uniform
assessments and higher valuations. The act was evidently experimental, because it was
expressly provided in its last section that:
49 Nev. 46, 50 (1925) Pittsburg Silver Peak Gold Mining Co. v. Tax Commission
was evidently experimental, because it was expressly provided in its last section that:
This act shall expire by limitation on February 15, 1917, unless revived by act of future
legislature.
The act was revived in 1917. Stats. 1917, p. 328; 3 Rev. Laws, p. 3195. The act of 1917,
however, is in no accurate sense involved in this case as the applicable law is found in the act
of 1913. For this reason we shall not discuss a number of interesting questions suggested in
the briefs with respect to practice and procedure under the present tax commission law.
The facts from which the controversy arose are not in dispute. They are substantially as
follows:
Prior to January, 1916, and since 1907, the Pittsburg Silver Peak Gold Mining Company
and its subsidiary companies, including the Silver Peak Railroad Company, operated certain
gold and silver mines in Esmeralda County of large value, and in connection therewith
operated a quartz mill and reduction works and a local railroad, known as the Silver Peak
Railroad, with a trackage of 19 miles wholly within Esmeralda County. The railroad was
constructed to serve the mines, but was operated as a public utility. The mill and reduction
works were operated in the name of the Pittsburg Silver Peak Gold Mining Company. We are
not concerned with the manner of the operations of the combined companies. While they
were all under the management and control of the Pittsburg Silver Peak Gold Mining
Company, and for purposes of assessment for taxation were considered as a unit, the Silver
Peak Railroad, because of its character as a public utility, was separately assessed. The
separate valuations of the combined property create some confusion in the record, but, when
it is considered that the combined companies were engaged in the one business of extraction,
transportation, reduction, and sale of ores, the confusion may be brushed aside.
In the year 1914 the tax officials of Esmeralda County, acting under the general law,
placed a valuation upon the mine improvements and mill for assessable purposes for that
year of $245,953.
49 Nev. 46, 51 (1925) Pittsburg Silver Peak Gold Mining Co. v. Tax Commission
poses for that year of $245,953. The tax commission, acting in pursuance of section 6 of the
Act of 1913, for purposes of state equalization, raised the valuation to $480,000. The
commission, acting under its original power of assessment of railroads, fixed the valuation of
the Silver Peak Railroad, for purposes of taxation for the year, at $102,000, making the
assessment covering mine improvements, railroad, and mill total $592,000. If these
valuations have been permitted to stand, they would have yielded a state and county tax for
the year 1914 of $13,740.72. The Pittsburg Silver Peak Gold Mining Company and the Silver
Peak Railroad Company, being dissatisfied with the valuations, paid the December
installment of the taxes under protest. In March, 1915, they brought this suit in equity,
claiming that the valuations were illegal, excessive, and the manner of making them so
unreasonable that the complainants were entitled to protection against the taxes, and sought
judgment that the taxes in excess of 60 per centum of the true cash value of the combined
property be adjudged null and void, and that the court determine the true value of the property
to be that alleged in the complaint, and that it determine the fair and equitable tax to be paid
thereon and order the excess tax paid under protest refunded. There was a full hearing upon
pleadings and evidence. The court made no findings, but it is judgment recited that the
valuations established by the tax commission were illegal, unjust, and inequitable, and fixed
the value of the property for assessable purposes at $200,801.72, and adjudged and decreed
the tax to be paid thereon to be the sum of $5,156.25, and ordered that the then treasurer of
Esmeralda County forthwith repay to the plaintiff mining company $3,499.33, and to the
plaintiff railroad company $792.90.
This brings us to the question upon which the decision of the case finally depends: Were
the valuations established and equalized by the tax commission, under the evidence, unjust
and inequitable? In determining this question, we are guided solely by the statute of 1913.
49 Nev. 46, 52 (1925) Pittsburg Silver Peak Gold Mining Co. v. Tax Commission
In the case of Nevada-California Power Co. v. Hamilton, 235 F. 341, citing State v. C.P.R.
Co., 21 Nev. 179, 26 P. 225, 1109, it is held that the decisions of the Nevada tax commission,
if rendered in accordance with law, as to matter within its jurisdiction, are conclusive, in the
absence of fraud, save as otherwise provided by statute. Section 6 of the statute of 1913
confers upon the tax commission the power to raise or lower, for the purpose of state
equalization, the valuations established by county assessors and county boards of
equalization. The section contains this provision:
Said Nevada tax commission, in that name, may sue and be sued, and shall be so named
as defendant in any action at law brought under the provisions of this section, and the
attorney-general shall defend the same, but the burden of proof shall be upon the complainant
to show by clear and satisfactory evidence that any valuations established or equalized by said
commission is unjust and inequitable.
1-3. We regard this excerpt from the section as being a legislative declaration of the
general rule that it is presumed, in the absence of evidence to the contrary, that tax officials
faithfully and legally performed their official duties, and that in making the assessments they
proceeded upon sufficient and competent evidence to justify their action. State v. W.U. Tel.
Co., 96 Minn. 13, 104 N.W. 567; Judson on Taxation (2d ed.), sec. 645. As stated by other
authorities, the rule is that valuations placed on property for purpose of taxation will be
presumed to be reasonable, and such presumption can be overcome only by proof that is clear
and convincing. Washington Union Coal Co. v. Thurston County, 105 Wash. 208, 177 P.
774, 2 A.L.R. 1546.
To overcome the presumption recognized by the statute in favor of the valuations of the
tax commission, the plaintiffs relied upon the testimony of W.A. Bradley, who was the
general manager of all the operating properties, and B.A. Rives, who was the cashier of the
plaintiff mining company and secretary of the plaintiff railroad company.
49 Nev. 46, 53 (1925) Pittsburg Silver Peak Gold Mining Co. v. Tax Commission
The witness Bradley testified in detail as to the facts which he considered should enter into
the consideration of the question of the value of the property. The witness testified in a
manner to carry conviction. The trial court adopted the opinions and estimates of the witness
as to values, and reduced the valuation of the property fixed by the tax commission at
$592,000 to $200,801.72.
4. The attorney-general invokes the rule that, when the valuation of property for taxation is
intrusted by statute to the judgment of a tax commission, its decisions or findings raise more
than a presumption of fact, and cannot be overcome by mere differences of opinions or
theories as to values. State v. W.U. Tel. Co., supra; Judson on Taxation, sec. 551, and cases
cited. The attorneys for the Pittsburg Silver Peak Gold Mining Company find no fault with
the doctrine established by these authorities, but insist that, when the undisputed facts leave
no room for a difference of opinion as to values, the rule has no application. It is argued that
the uncontradicted proof is that on the dates the valuations were made it was known to the tax
commission that the ore bodies would be entirely worked out and the mines exhausted within
one year from that date, to wit, January 1, 1916, and this in fact happened; hence to increase
the valuations of the mine plant, reduction works, and railroad, considered as constituent
parts of the operating mines, resulted in a flagrant and palpable injustice to the owners. The
section of the statute pertinent to the valuation of operating mines is section 9, which we
quote in its entirety:
In pursuance of the general supervision and control over the revenue system of the state,
said commission is hereby empowered to investigate and determine the net proceeds of all
operating mines. In pursuance whereof, said commission, in each instance, shall investigate
and determine from all obtainable data, evidence and reports, the gross value of the bullion
actually extracted from the reduction of the ores and the proceeds from the sale of ores, of any
mine, mining claim or patented mine, and to deduct therefrom only such actual cost of
extraction, transportation, reduction or sale of ores, as shall be deemed by said
commission to be just, proper and reasonable, and not introduced to deprive or defraud
the state of any portion of it just revenue; and in any suit at law arising under the
provisions of this section, the burden of proof shall be upon the owner of such mine,
mining claim or patented mine to establish that any item of cost disallowed by said
commission, is, nevertheless, just, proper and reasonable, and not entered to defraud the
state."
49 Nev. 46, 54 (1925) Pittsburg Silver Peak Gold Mining Co. v. Tax Commission
only such actual cost of extraction, transportation, reduction or sale of ores, as shall be
deemed by said commission to be just, proper and reasonable, and not introduced to deprive
or defraud the state of any portion of it just revenue; and in any suit at law arising under the
provisions of this section, the burden of proof shall be upon the owner of such mine, mining
claim or patented mine to establish that any item of cost disallowed by said commission, is,
nevertheless, just, proper and reasonable, and not entered to defraud the state.
We do not think the legislature intended to cover the necessary depreciation of a mine by
exhaustion of the ores, in determining the net proceeds for assessable purposes, by including
such exhaustion within the deductions allowable for costs of extraction, transportation,
reduction, or sale of ores. It is true the value of a mine is lessened from the partial exhaustion
of the property. But in no accurate sense can such exhaustion of the body of the ore be
deemed depreciation. Lynch v. Alworth-Stephens Co., 45 S. Ct. 274, 69 L. Ed. .
5, 6. It is argued on the part of the mining companies that the proof shows that the tax
commission assessed the value of the combined property in 1913 at $324,000, and that the
commission, in the face of the known fact that the mines would be exhausted within a year,
raised the valuations in 1914 to $592,000, which act, it is insisted, was one of the most
flagrant usurpations of power in the history of taxation in Nevada. Our answer, in short, to
this broad assertion, it that, while the increase in the assessments was very great, still it must
be borne in mind that a mere increase in the assessment does not prove that the last
assessment is wrong. Something more is necessary before it can be adjudged that the
assessment is illegal and excessive. Louisville & N.R. Co., v. Bosworth (D.C.), 209 F. 380;
Pittsburg, etc., Ry. Co. v. Backus, 154 U.S. 421, 14 S. Ct. 1114, 38 L. Ed. 1031. Under our
statute the burden was upon complainants to show by clear and satisfactory evidence that the
assessments were unjust and inequitable.
49 Nev. 46, 55 (1925) Pittsburg Silver Peak Gold Mining Co. v. Tax Commission
inequitable. We cannot say from the testimony that the tax commission, in making the
assessments, applied a fundamentally wrong principle or refused to exercise its best
judgment, or that the assessments as made were so excessive as to give rise to an implication
of fraud or mala fides.
We therefore reverse the order overruling the motion of the tax commission for a new trial,
and remand the cause back to the lower court, for such further proceedings as the parties may
be advised.
It is so ordered.
Ducker J.: I concur.
Coleman, C. J.: I dissent.
____________
49 Nev. 55, 55 (1925) Cooney v. Pedroli
COONEY v. PEDROLI
No. 2659
May 5, 1925. 235 p. 637.
1. EquityDelay, Together with Circumstances Causing a Disadvantage, Constitutes
Laches.
While lapse of time is one of the elements of laches, another and very important one is that the
delay works some disadvantage to the one who interposes laches as a defense, and the circumstances
which may work a disadvantage depend on facts in each case.
2. EquityDeath Is A Circumstance To Be Considered in Connection with Delay in
Determining Whether Claim is Barred by Laches.
Death of a party, who could have explained a transaction, is a material circumstance to be considered
in connection with lapse of time in determining whether a claim is barred by laches.
3. TrustsAction against Administratrix to Establish Trust Is Barred by Laches, where
Intestate Held Property as Sole Owner for 22 Years.
Where intestate had continuously managed and disposed of property inherited by plaintiffs and
intestate, as if he were the sole owner for 22 years, reinvested the rents and profits without objection from
plaintiffs, and had not accounted during this entire period, held that suit against intestate's administratix
seeking to establish a trust in the property inherited, and accumulations is barred by laches.
See (1, 2) 21 C.J. sec. 219, p. 233, n. 30; sec. 230, p. 237, n. 10; (3) 39 Cyc. p. 601, n. 27.
49 Nev. 55, 56 (1925) Cooney v. Pedroli
Appeal from Sixth Judicial District Court, Humboldt County; James A. Callahan, Judge.
Suit by Mary E. Cooney and another against Louise Pedroli, administratix of the estate of
Charles Pedroli, and another. From a judgment for plaintiffs, and an order denying a new
trial, defendants appeal. Reversed, with directions to enter judgment for defendants.
Rehearing denied. (Sanders, J., dissenting.)
L.O. Hawkins, Prince A. Hawkins, and Price & Hawkins, for Appellants:
Defense of laches and equitable estoppel should have been upheld. Stale demands will not
be aided where claimant has slept upon his rights for so long and under such circumstances as
to make it inequitable to enter upon inquiry as to validity thereof. Kleinclaus v. Dutard, 81 P.
516; Cook v. Ceas, 82 P. 370; Wadleigh v. Phelps, 87 P. 93.
Where relation of trust is no longer admitted to exist or time and long acquiescence have
obscured character of trust, or acts of parties or other circumstances give rise to presumptions
unfavorable to its continuance, courts of equity will refuse relief upon ground of lapse of time
and inability to do complete justice. Cahill v. Superior Court, 78 P. 467; Story Eq. Jur. 1520a.
Equity will not aid party whose claim is destitute of conscience, good faith, and reasonable
diligence. Mackall v. Casilear, 137 U.S. 556.
No issue of partnership is made by pleadings, but where it exists, partner who manages
farm for benefit of himself and copartner is entitled to reasonable compensation. Duley v.
Duley, 226 P. 40; Emerson v. Durand, 24 N.W. 129; Griggs v. Clark, 23 Cal. 427.
After lapse of many years evidence to establish resulting trust must be clear, strong, and
unmistakable, since doctrine of laches is applicable. 13 Enc. Ev. 144-146.
Thos. A Brandon, for Respondent:
In Miller v. Walser, 42 Nev. 497, court said that statute of limitations had not run and by
reason thereof strong circumstances must exist to require application of doctrine of
laches.
49 Nev. 55, 57 (1925) Cooney v. Pedroli
thereof strong circumstances must exist to require application of doctrine of laches. Burden is
on respondents to show from suitable averments in complaint that such circumstances exist.
Relationship of parties, recognition of debt or other circumstances may repel presumption
of laches. Same evidence prevents presumption of laches and defense of statute of limitations.
Vaughn v. Tate, 36 S.W. 748; Hovey v. Bradbury, 44 P. 1077; 10 R.C.L. 936.
Lapse of time is permitted in equity to defeat only acknowledged right of claimant to avoid
evidence of presumption that right has been abandoned. It never prevails when presumption is
outweighed by facts. Nelson v. Carrington, 6 Am. Dec. 519; 10 R.C.L. 402.
Where one of several heirs enters into or holds possession of land on death of ancestor his
possession will in general be considered as possession of his coheirs for their benefit. In order
to render his possession adverse, there must be decisive acts on his part amounting to ouster
or disseizin. No mere act of ownership will render his possession adverse. 1 Cyc. 1080; 39
Cyc. 36.
When business is bequeathed to two persons who continue it, they become partners
without any formal agreement and property is partnership property. 30 Cyc. 368.
OPINION
By the Court, Coleman, C. J.:
This is a suit in equity brought by the respondents to obtain a decree establishing that they
are the owners of an undivided two-thirds interest in all the property possessed by Charles
Pedroli at the time of his death. The respondents are a brother and a sister of the deceased
Charles Pedroli. The appellant is the administratix of his estate. A demurrer to the amended
complaint was overruled and appellant answered. Most of the allegations in the amended
complaint are denied in the amended answer, and in addition eight separate defenses are
interposed. Judgment was rendered in favor of respondents and a motion for a new trial
was denied.
49 Nev. 55, 58 (1925) Cooney v. Pedroli
favor of respondents and a motion for a new trial was denied. From the judgment and order
denying the motion for a new trial this appeal is taken.
As we reached the conclusion that the demurrer should have been sustained, it will be
necessary to set out in this opinion substantially the allegations of the amended complaint.
The appellant, Louise Pedroli, was appointed and qualified as the administratrix of the
estate of Charles Pedroli, deceased, on March 30, 1920, and is now such administratrix. On or
about the 29th day of September, 1896, Celeste Pedroli died intestate in the county of
Humboldt in this state and left estate therein consisting of horses, cattle, farming equipment,
and about 400 acres of land, together with improvements on said land and water rights
appurtenant thereto, all of which was community property, and situated in said Humboldt
County. He left surviving him a widow, Felecitia Pedroli, and three children, Charles Pedroli,
then aged 29 years, and now deceased Julius Pedroli, a son, then aged 24 years, and Mary E.
Pedroli, a daughter, aged 20 years. Thereafter, Felecitia Pedroli was appointed and qualified
as the administratrix of the estate of Celeste Pedroli, and after due and legal proceedings the
estate hereinafter described, together with the sum of $3,681, also belonging to the estate, was
by decree of court distributed as follows: An undivided one-half thereof to the surviving
widow, and one-sixth to each of said surviving children.
On the death of the father, Charles Pedroli, without objection on the part of his brother and
sister, now Mary Cooney, the respondents herein, assumed and entered into the exclusive
management and control of the property. (It is alleged that such property was by the said
brother and sister left in the care, custody, and control of Charles Pedroli.) Continuously
thereafter and until the time of the death of Charles Pedroli he managed and controlled the
property and exercised dominion over it, and handled, traded, sold, and otherwise disposed
of the same, and the rents, issues, and profits and increase thereof, in his own name and
in like manner as though he were the sole owner thereof, but always, it is also alleged,
subject to the rights of his brother and sister, and as their agent and trustee in so far as
their rights and interests were affected thereby, and for their use and benefit.
49 Nev. 55, 59 (1925) Cooney v. Pedroli
wise disposed of the same, and the rents, issues, and profits and increase thereof, in his own
name and in like manner as though he were the sole owner thereof, but always, it is also
alleged, subject to the rights of his brother and sister, and as their agent and trustee in so far
as their rights and interests were affected thereby, and for their use and benefit.
Felecitia Pedroli died intestate on or about the 6th day of September, 1911, at Bodio,
Republic of Switzerland, leaving estate of her undivided one-half interest in the property left
by her deceased husband, and in the increase to the personal property and additions to the real
estate. Her surviving heirs were the said children. Charles Pedroli was appointed and
qualified as administrator of her estate on or about the 19th day of February, 1912, and
entering upon the duties of his trust as such took possession of all the real and personal
property belonging to the estate, remained and continued to remain in possession from the
time of his appointment until his death on the 12th day of January, 1919.
On the 9th day of July, 1912, at the request and prayer of Charles Pedroli as administrator,
the estate of Felecitia Pedroli was by decree of court distributed as follows, to wit: An
undivided one-third thereof to each of said children, which decree provided in part that, upon
the production of satisfactory vouchers by the administrator that he had paid all of the sums
of money due from him, and delivered all the property of the estate to the parties entitled, he
be discharged from his said trust and that he and his sureties be released from all liability
therefrom thereafter to be incurred on account of the administration of this estate. Charles
Pedroli never paid or delivered the property described in the decree to his brother and sister
and was never discharged from his trust, and without objection on their part retained
possession and control of all thereof, together with the rents, issues, and profits thereof from
the time of his appointment to the time of his death.
49 Nev. 55, 60 (1925) Cooney v. Pedroli
It is alleged that during the time from the date of the death of his father to the death of
Charles Pedroli in January, 1919, the latter received and had said property in his possession
and under his control and management together with rents, issues, profits, and increase
thereof, and possessed, controlled, sold, and disposed of the same without objection on the
part of his brother and sister, as their agent and trustee, as though the same were his sole and
separate property, but not adversely to their interests therein or in derogation of their rights
thereto, but that all times he admitted and recognized their right as the owners of an
undivided two-thirds interest in the property and the rents, issues, profits, and increase
thereof, that all of the property was either the original property belonging to the estate of
Celeste Pedroli and the estate of Felecitia Pedroli, or was acquired by Charles Pedroli out of
the rents, issues, profits, and increase of the property of those estates while he was acting as
the agent and trustee of his brother and sister; that an undivided two-thirds interest of the
same is the property of the brother and sister.
It is alleged that Charles Pedroli never at anytime accounted to the brother and sister
concerning his management, control, and disposition of their interest in the property; that they
permitted him to act as their agent and trustee with the full faith and confidence in his
business management and integrity in the bona fide belief that he was more competent in that
respect than either of them to manage the same to the best advantage and greatest profit to
himself and them; that they believed that he would account fully and honestly to them at any
time they or either of them made on him a demand therefor; that for these reasons they never
made a demand on him for an accounting and were always willing to leave the control,
management, and disposition of the property in his hands with full faith and confidence in his
judgment and integrity.
It is alleged that the defendant, Louise Pedroli (appellant here), as administratrix of the
estate of Charles Pedroli, deceased, and personally, claims some right, title, or interest in
and to said two-thirds of the property belonging to his brother and sister, which claim is
adverse to them and is without foundation in law or equity; that she has no right, title, or
interest in and to the two-thirds of the property belonging to them.
49 Nev. 55, 61 (1925) Cooney v. Pedroli
Pedroli, deceased, and personally, claims some right, title, or interest in and to said two-thirds
of the property belonging to his brother and sister, which claim is adverse to them and is
without foundation in law or equity; that she has no right, title, or interest in and to the
two-thirds of the property belonging to them. It is alleged that since the death of Charles
Pedroli all of the two-thirds of the property belonging to them has come into the hands of said
administratrix of his estate, who is now holding, managing, and controlling the same, together
with the rents, issues, profits, and increase thereof, as trustee for said Julius Pedroli and Mary
Cooney for their use and benefit.
Among the grounds stated in the demurrer to the amended complaint are: (1) That the
amended complaint does not state facts sufficient to constitute a cause of action against the
defendants or either of them; (2) that it appears upon the face of the amended complaint that
the cause of action therein set forth, if any ever existed, was barred at the time of the
commencement of the action, by the laches of the plaintiffs, and under the doctrine of
equitable estoppel.
The nature of this suit is purely equitable. The substance of the claim as averred in the
complaint is that during all of the years that Charles Pedroli was in possession, management,
and control of the property from the death of his father until his own death, he was acting as a
trustee for his brother and sister, the respondents, as to their interest in the property and in the
increase and profits thereof. A decree is demanded to that effect, and that the respondents be
declared the owners of said interests, their title to such quieted against appellant, and for an
accounting from her for her control and management of such interest from the time of the
death of Charles Pedroli.
1. The doctrine of laches has been universally accepted in courts of equity. In an early
English case Lord Camden declared:
A court of equity, which is never active in relief against conscience, or public
convenience, has always refused its aid to stale demands, where the party has slept upon
his right, and acquiesced for a great length of time.
49 Nev. 55, 62 (1925) Cooney v. Pedroli
refused its aid to stale demands, where the party has slept upon his right, and acquiesced for a
great length of time. Nothing can call forth this court into activity, but conscience, good faith,
and reasonable diligence; when these are wanting the court is passive and does nothing.
Laches and neglect are always discountenanced, and therefore, from the beginning of this
jurisdiction, there was always a limitation to suits in this court. Smith v. Clay, 2 Ambler's
Reports, 645; 3 Browne's Reports, p. 639 in note.
The principle thus announced that mere lapse of time may constitute laches has not been
recognized generally by modern courts of equity as embracing the only element of that
defense. It appears from the cases, with few exceptions, that, while lapse of time is one of the
elements, another and very important one is that the delay has worked some disadvantage to
the one who interposes the defense of laches. A concise and accurate statement of the
doctrine of laches, and one which has been often quoted with approval, was made in Chase v.
Chase, 20 R.I. 202, 37 A. 804, in which the court said:
Laches, in legal significance, is not mere delay, but delay that works a disadvantage to
another. So long as parties are in the same condition, it matters little whether one presses a
right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes
no steps to enforce them until the condition of the other party has, in good faith, become so
changed that he cannot be restored to his former state, if the right be then enforced, delay
becomes inequitable and operates as an estoppel against the assertion of the right. The
disadvantage may come from loss of evidence, change of title, intervention of equities and
other causes, but when a court sees negligence on one side and injury therefrom on the other,
it is a ground for denial of relief.
It would be difficult, it not impossible, to state the various circumstances which in
conjunction with the lapse of time may constitute laches. Every case must depend upon its
own circumstances. Whenever the passage of time has brought in its train anything that
works to the disadvantage of a party and makes it doubtful if equity can be done, relief
will be denied.
49 Nev. 55, 63 (1925) Cooney v. Pedroli
works to the disadvantage of a party and makes it doubtful if equity can be done, relief will be
denied.
Several conditions may combine to render a claim or demand stale in equity. If by the
laches and delay of the complainant it has become doubtful whether the adverse parties can
command the evidence necessary to a fair presentation of the case on their part, as, for
instance, where parties interested and the witnesses have died in interim, or if it appears that
they have been deprived of any advantage they might have had if the claim had been
seasonably insisted on, or if they be subjected to any hardship that might have been avoided
by reasonably prompt proceedings, a court of equity will not interfere to give relief, but will
remain passive; and this, although the full time may not have elapsed which would be
required to bar a remedy at law. 10 R.C.L. p. 400.
Considering the defense of laches in Miller v. Walser, 42 Nev. 497, 518, 181 P. 437, 444,
this court said:
Any circumstances tending to obscure the truth of the matter, as the loss of witnesses
through efflux of time, may prompt a court of equity to apply the doctrine of laches. In fact, if
it appears that the adverse party has lost any advantage he might have retained if the claim
had been asserted with reasonable promptness, or exposed to any injury through inexcusable
delay, a court of equity will not interfere to give relief to the dilatory claimant. Every case
must depend upon its own peculiar circumstances.
2. It is a very material circumstance to be considered in connection with the lapse of time
that death of those who could have explained the transaction has intervened before the claim
is made. Hinchman v. Kelley, 54 F. 63, 4 C.C.A. 189; Rives v. Morris et. al., 108 Ala. 527,
18 So. 743; Taylor v. Slater, 21 R.I. 104, 41 A. 1001; Kleinclaus v. Dutard, 147 Cal. 245, 81
P. 516; Pomeroy's Eq. Rem. p. 44. In the last work cited the author says:
It is settled in this state by the two California cases last cited that the defense of laches
may be raised by demurrer, the defense being in substance, as said in one of the cases, that
the bill does not show equity, or, in the language of our statute, that the complaint does
not state facts sufficient to constitute a cause of action."
49 Nev. 55, 64 (1925) Cooney v. Pedroli
one of the cases, that the bill does not show equity, or, in the language of our statute, that the
complaint does not state facts sufficient to constitute a cause of action.
3. An examination of the complaint in view of these principles clearly reveals its lack of
equity. The complaint shows a great lapse of time, 22 years, from the creation of the alleged
trust. During all of this time Charles Pedroli was in possession of the property openly and
notoriously exercising dominion over it as though it were his sole and separate property. He
managed, controlled, and disposed of it, and acquired and invested the profits from it in his
own name. From the profits he acquired other property to the extent that at the time of his
death the original property belonging to the estate of his father had been increased in amount
from 400 acres of land and 100 head of stock cattle, and 20 tons of hay, to 880 acres, 300
head of cattle, 75 head of calves, 200 tons of hay. In addition thereto he acquired 15 bonds of
Lovelock Drainage District; 12 shares of the stock of the Bank of Italy, San Francisco,
California; Liberty bonds of the par value of $3,600; a promissory note with accrued interest
thereon; and a life insurance policy on the life of the deceased for the sum of $5,000 payable
to his estate as the beneficiary thereof, and cash in the amount of $12,000.
Beyond the bare statement in the complaint that Charles Pedroli was the trustee of his
brother and sister, and that he at all times admitted and recognized their right, there is nothing
in the complaint to support the claimed trust relation. All of his acts alleged have a contrary
significance. He did everything in his own name and managed the property and the increase
as if it were his own. No act of recognition is alleged. He invested the profits in other
property and took the same in his own name without consulting the respondents. During the
entire period of 22 years he paid nothing to the respondents. He rendered no account of his
management of the property to them, nor was any accounting demanded of him by either of
them. No reason is alleged in the complaint for respondents' long delay in making any claim
to the property or asserting any interest as to Charles Pedroli's management of their
share of it or desire to enjoy any of the profits from it, except that Charles Pedroli was
more competent to manage it for the best interests of himself and them, and that he was
honest and upright in all his business affairs, and that they believed he would account
fully and honestly as to his management and control and disposition of the property to
respondents at any time they made a demand on him.
49 Nev. 55, 65 (1925) Cooney v. Pedroli
delay in making any claim to the property or asserting any interest as to Charles Pedroli's
management of their share of it or desire to enjoy any of the profits from it, except that
Charles Pedroli was more competent to manage it for the best interests of himself and them,
and that he was honest and upright in all his business affairs, and that they believed he would
account fully and honestly as to his management and control and disposition of the property
to respondents at any time they made a demand on him.
It seems incredible, however, that in all of these years and when the property was being
managed profitably by Charles Pedroli that respondents should have no desire to share in any
portion of the profits. Any fraud on the part of Charles Pedroli is entirely negatived by the
complaint. All of his acts were open and notorious and consistent with the absolute
ownership. These facts, together with the prolonged silence of the respondents during the
lifetime of Charles Pedroli concerning their alleged interest in the property, present a case of
grave doubt as to the existence of the trust claimed. His death places his administratrix at a
disadvantage so obvious as to call for the application of the doctrine of laches against the
respondents, who have slept on their alleged rights for a period of 22 years. Even if the trust
relation were admitted the futility of entering on an investigation after such a lapse of time
when the trustee is dead, to determine equitably what portion belonged to his estate and what
portion belonged to respondents, is apparent. A court of equity would be unable, under the
circumstances, to do justice to the parties. The injustice, if any, must fall upon the negligent.
As said in Kleinclaus v. Dutard, supra:
The circumstances of this case are such as to make it apparent that a court could not hope
to do justice between these parties, were the trust relation clearly shown, and this constitutes
another ground for the application of the doctrine of laches, for the difficulty is due entirely to
the inexcusable delay.
49 Nev. 55, 66 (1925) Cooney v. Pedroli
The facts in the Dutard case are strikingly parallel to the case at bar. It was held that the
merits of a claim of the existence of an express trust under which a son carried on his father's
business for the benefit of the family would not be considered after an unexplained lapse of
35 years, when the son was dead, and where the son had conducted the business during the
period without recognizing the interest of the alleged beneficiaries, or rendering an account or
paying any money to them, except in the support of his mother, and by his personal efforts
and diligence had accumulated a large fortune from the small capital invested in the business
by his father, and it would be impossible for the court to do justice between the parties, even
if the claim should be established. A demurrer on the ground of laches was sustained. The
complaint in the instant case shows a stronger case for the application of the defense of laches
than the Dutard case.
For the reasons given, the judgment is reversed, and the lower court is directed to sustain
the demurrer and enter judgment for the appellant.
Sanders, J., dissenting.
Louise Pedroli in her individual and representative capacities interposed a demurrer to the
complaint, and for demurrer alleged, first, that the complaint did not state facts sufficient to
constitute a cause of action; second, that the cause of action, if any ever existed, was barred
by the laches of the plaintiffs and under the doctrine of equitable estoppel; third, that the
cause of action, if any ever existed, was barred by the statutes of limitations; fourth, that the
cause of action was void under the statute of frauds. The principal contention in connection
with the demurrer is that the same should have been sustained upon the ground of laches and
under the doctrine of equitable estoppel.
Counsel for appellants assert that the trial court after argument filed no written opinion
upon the overruling of the demurrer, but concede that the trial judge did say, from the bench,
in overruling the demurrer The question of the statute of limitations and also the question of
laches can better be presented at the trial of this matter of merits."
49 Nev. 55, 67 (1925) Cooney v. Pedroli
of laches can better be presented at the trial of this matter of merits. It is argued that such
may have been the reason for overruling the demurrer, but that it is no legal reason and does
not excuse or justify the order overruling it. In this counsel are mistaken. A court in disposing
of a demurrer to a bill in equity has a certain amount of judicial discretion to be exercised in
furtherance of justice, and where the nature of the case is such as to make it probably more
conducive to the cause of justice to decide such case only after answer and proof, it is within
the discretion of the court to refuse to determine it on demurrer, though the demurrer may
appear to be technically well taken. 10 R.C.L. 475.
It is well settled that a demurrer to a bill may be overruled with liberty to the defendant to
insist upon the same defense by answer, if the allegations of the bill are such that the case
ought not to be decided without answer being put in. Kansas v. Colorado, 185 U.S. 125, 22 S.
Ct. 552, 46 L. Ed. 838. The trial court was evidently of the opinion that the case made by the
complaint was a proper one for overruling the demurrer upon the ground of laches with
liberty to the defendants to insist upon the same defense by answer. Sabre v. United Traction,
etc., Co. (C.C.) 156 F. 79. Since the defendants set up laches as a defense and a trial was had,
I am of the opinion that this court should at least look to the evidence before determining
whether the court abused its judicial discretion in refusing to determine the case on demurrer.
Be this as it may, my associates take the view that conceding the charges of the complaint to
be true, it is an absolute, certain and clear proposition that the complaint does not show
equity, or, in other words, does not state facts sufficient to constitute a cause of action. I
dissent from this conclusion.
It is contented that the demurrer should have been sustained and the action dismissed,
under all authorities, and especially so under the decision in Kleinclaus v. Dutard, 147 Cal.
245, 81 P. 516, claiming that no two cases so nearly parallel in point of facts and law can be
found in the books. In this I am unable to agree.
49 Nev. 55, 68 (1925) Cooney v. Pedroli
Conceding the correctness of the decision and the elementary principles of equity applied to
the facts in the Dutard case, I make the same distinction in the two cases as was made by
Justice Kerrigan in the case of Fleming v. Shay, 19 Cal. App. 276, 125 P. 761. The learned
justice pointed out that the authorities lay down the rule that when positive evidence exists,
which proves that the defendant has all along recognized the plaintiff's rights, delay on the
part of plaintiff in bringing the suit will be excused. 18 Am. & Eng. Ency. of Law, 111. The
continued acknowledgment, reads 16 Cyc. 174, by the defendant of plaintiff's right is
generally sufficient to account for delay by plaintiff in bringing suit to enforce it.
The plaintiffs allege in their complaint in this case that Charles Pedroli, deceased,
possessed, controlled, and managed the property described without objection of plaintiffs as
agent and trustee, as though the same were the sole and separate property of Charles Pedroli,
but not adversely to their interest therein or in derogation of their rights thereto, but at all
times the said Charles Pedroli admitted and recognized the right of plaintiffs, and each of
them, as such owners of said undivided interests in and to the property and the rents, issues,
profits, and increase thereof.
Justice Kerrigan points out in Fleming v. Shay, supra:
In the case of Peebles v. Reading, 8 Serg. & R. (Pa.) 484, 494, it was held that fourteen
years would not be a reasonable time to enforce a trust, unless the trust was kept up by
declarations from time to time.
A similar declaration to the one here was considered in the case of Kleinclaus v. Dutard
* * * ; but, there it appeared that Dutard for thirty-five years had dealt with all the property
acquired as absolutely his own. He carried on a produce and commission business in his own
name. He invested and reinvested the profits thereof in this own name in all kinds of property,
in several different states, accumulating a great fortune. He never recognized any other person
as having any interest therein.' For those and other reasons stated in the opinion, the court said
that the complaint, taken as a whole, presented a case 'where every act of the alleged
trustee was openly and notoriously hostile to the claim of plaintiff'; that consequently no
such relation between the parties was evidenced by the complaint as justified the plaintiff
in disregarding those acts and relying upon any declaration of Dutard."
49 Nev. 55, 69 (1925) Cooney v. Pedroli
as a whole, presented a case where every act of the alleged trustee was openly and
notoriously hostile to the claim of plaintiff'; that consequently no such relation between the
parties was evidenced by the complaint as justified the plaintiff in disregarding those acts and
relying upon any declaration of Dutard.
The distinction between the present complaint and the Dutard case is made plain when it is
considered that the court in that case pointed out that the complaint taken as a whole,
presented a case where every act of the alleged trustee was openly and notoriously hostile to
the claim of plaintiff, whereas in the present complaint it is alleged and the demurrer admits
that Charles Pedroli at all times admitted and recognized the rights of plaintiffs as owners of
an undivided interest in and to the property and the rents, issues, profits, and increase thereof.
If this allegation be true his representative after his death is bound by his admissions. Hovey
v. Bradbury, 112 Cal. 620, 44 P. 1077.
I concede the force in the argument that the plaintiffs' delay in commencing action, and
particularly until after the death of Charles Pedroli, when much important evidence might be
lost to defendants, is indicative of bad faith and renders the claim stale and inequitable. In
view, however, that there is nothing in the present complaint inconsistent with the alleged
acknowledgment by Charles Pedroli of plaintiffs' right and interest in the property at all times,
and of the fact that the parties were brothers and sister and that plaintiffs reposed confidence
and trust in Charles Pedroli (10 R.C.L. 402), I cannot agree that it clearly and affirmatively
appears upon the face of the complaint that the cause of action is barred by laches.
I am of opinion that the demurrer was properly overruled.
On Petition for Rehearing
June 17, 1925.
Per Curiam:
Rehearing denied.
Sanders, J., I dissent.
____________
49 Nev. 70, 70 (1925) Wheeler v. Hurley
WHEELER v. HURLEY
No. 2683
June 5, 1925. 236 P. 559.
1. PleadingMaterial Allegation Defined.
Material allegation is one essential to claim or defense which could not be stricken from pleading
without leaving it insufficient, and which plaintiff must prove to maintain action.
2. Sheriffs and ConstablesMeasure of Damages for Failure to Return Execution Stated.
Measure of damages for sheriff's failure to return execution, as required by Rev. Laws, sec. 1650, is
actual loss sustained, which is prima facie amount of execution.
3. PleadingPlaintiff Not Entitled to Judgment for Full Amount of Execution Not Returned
Because of Defendant's Failure to Deny Allegations as to Value of Property.
To recover damages from sheriff for failure to return execution, plaintiff need not allege value of
property or that such value exceeded amount of judgment, and hence is not entitled to judgment for full
amount of execution because of defendant's failure to deny such allegations, under civil practice act, sec.
133, as amended by Stats. 1915, c. 158, sec. 4, requiring that each material allegation of complaint not
controverted by answer be taken as true.
4. Appeal and ErrorPlaintiff, Trying Action against Sheriff for Failure to Return Execution
on Theory that Value of Property was in Issue, Cannot Invoke for First Time in
Supreme Court Rule that Uncontroverted Material Allegations of Complaint Must Be
Taken as True.
Plaintiff, trying case against sheriff for damages from failure to return execution on theory that value
of property was in issue, cannot invoke for first time in supreme court rule of civil practice act, sec. 133,
as amended by Stats. 1915, c. 158, sec. 4, that each material allegation of complaint not controverted by
answer be taken as true, for reversal of judgment for less than amount of execution.
See (1, 3) 39 C.J. sec. 3, p. 1387, n. 86; 31 Cyc. p. 209, n. 87; p. 210, n. 93; (2) 35 Cyc. p. 1727, n. 84; (4) 3 C.J.
sec. 621, p. 725, n. 84.
Appeal from First Judicial District Court, Storey County; J.A. Ballard, Judge.
Action by Carl Wheeler against Thomas J. Hurley, as Sheriff of Storey County, and
another. From a judgment for plaintiff in an unsatisfactory amount, he appeals. Affirmed.
Mack & Green, for Appellant:
Each material allegation of complaint, not controverted by answer must, for purposes of
action, be taken as true.
49 Nev. 70, 71 (1925) Wheeler v. Hurley
by answer must, for purposes of action, be taken as true. Stats. 1915, 193.
Denial that property is worth exact sum alleged in complaint is negative pregnant, and
court can, upon such pleadings, in absence of further proof, find for any sum less than amount
stated. If error thereby occurs it is of that infinitesimal character which can be of no injury.
Blackie v. Cooney, 8 Nev. 45.
Party is entitled to benefit of admission in adversary's pleading and may without proof accept
it as basis for judgment. Carlyon v. Lannan, 4 Nev. 160; Hixon v. Pixley, 15 Nev. 483.
Contrary finding would not prevail against admission. Nosler v. Haynes, 2 Nev. 56.
Proof is not necessary of fact alleged in complaint not controverted in answer. Escondido Co.
v. Baldwin, 84 P. 285; Henry v. Henry, 107 N.W. 790.
Allegation of value of property was essential to fixing of any damage. Had plaintiff not
alleged value of property attached how could court determine how much was loss sustained
by plaintiff through sheriff's allowing other people to take away property? If counsel's
contention that value of property levied upon need not be alleged, then court should have
given judgment for full amount of claim and costs. 3 Sutherland, 2443; Johnson v. Vance, 24
P. 862; 17 C.J. 998; 5 Enc. Pl. & Pr. 703.
William S. Boyle, for Respondents:
Appellant lost right to appeal owing to respondents' objection upon motion for new trial
set forth in bill of exceptions in which appellant did not present respondents with
memorandum, containing verified statement of errors excepted to, after service of notice of
new trial and within ten days. Rev. Laws, 5320, 5321, 5323.
Averment of value of property is not material. Sutherland Code Pl., 2443. Amount of
damage need not be denied. Idem, 263.
Appellant alleged six tanks and one pump were worth $2,400. Only tanks were levied
upon, and since pump would constitute part of entire value of property, entire damage
could not be $2,400.
49 Nev. 70, 72 (1925) Wheeler v. Hurley
would constitute part of entire value of property, entire damage could not be $2,400. Court
found value to be $175.
Where plaintiff alleges conversion of personal property and prays for double damages he is
entitled to them only if proof sustains allegations. Jahns v. Nolting, 29 Cal. 507.
Defendant did not have to deny value of tanks as their value was immaterial. Van Santv.
Pl. 249.
If it were matter of contract for wages due at fixed rate per day denial of wages due would not
be wise but fatal. Denial of damages is different. Stats. 1915, 123; Smith v. Lee, 10 Nev. 210.
OPINION
By the Court, Sanders, J.:
Carl Wheeler, a judgment creditor, sued Thomas J. Hurley, sheriff of Storey County, and
the Fidelity and Deposit Company of Maryland, the surety on his official bond, to recover the
sum of $1,351.32 as damages for the failure of said Thomas J. Hurley as sheriff of Storey
County to return an execution issued upon a judgment in the case of Carl Wheeler, plaintiff,
v. Comstock Eldorado Mining and Milling Company, a corporation, defendant. The case was
tried to the court without a jury. The court found for the plaintiff and rendered judgment in
his favor for the sum of $175. The plaintiff, being dissatisfied with the amount of the
judgment, appeals.
It is claimed in argument that under the pleadings the trial court was without power or
authority to render judgment for a less sum that the full amount of the execution, to wit,
$1,351.32. In support of this contention counsel for appellant state in their opening brief that
the appeal is taken for the reason that the decision of the lower court is contrary to and against
the law as laid down in section 133 of the civil practice act as amended by the Statutes of
1915, p. 193, which provides that:
Each material allegation of the complaint not controverted by the answer * * * must,
for the purposes of the action, be taken as true."
49 Nev. 70, 73 (1925) Wheeler v. Hurley
controverted by the answer * * * must, for the purposes of the action, be taken as true.
Paragraph 7 of the complaint reads as follows:
That the property levied upon, under and by virtue of said writ of execution and thereby
directed to be sold by said sheriff to satisfy the said plaintiff's judgment, was of the value of
$2,400, and in excess of the value specified in said writ of execution and directed to be made
thereby.
Paragraph 9 of the complaint reads as follows:
That, although more than 60 days have elapsed after delivery of said execution to the
defendant and before the commencement of this action, yet he, the said Thomas J. Hurley,
sheriff of Storey County, State of Nevada, as aforesaid, in violation of his duty as such sheriff
failed to return the same to the damage of the plaintiff in the sum of $1,351.32, together with
interest on the sum of $1,000 at the rate of 8 per cent per annum from the 26th day of
January, 1923, until paid.
1-3. It is contended that the failure of the defendant to deny the allegations of paragraphs 7
and 9 of the complaint left the value of the property at $2,400; and that plaintiff was entitled
to judgment on the pleading for the full amount of his debt. The question turns upon whether
the allegation of paragraph 7 of the complaint is a material allegation within the meaning of
the statute. A material allegation in a pleading is one essential to the claim or defense, and
which could not be stricken from the pleading without leaving it insufficient; an allegation
which the plaintiff must prove on the trial in order to maintain his action. Gillson v. Price, 18
Nev. 117, 1 P. 459. The writer is of opinion that paragraph 7 of the complaint could be
stricken and yet leave the pleading sufficient to state a cause of action for damages for the
defendant's failure to return the execution, as alleged in paragraph 8, within the time
prescribed. As shown by paragraph 8, damages for the failure of the defendant to return the
execution is the gravamen of the complaint, and not damages for the loss of property.
It is well settled that, where a sheriff fails to comply with the mandate of a writ of
execution there is not only a breach of duty, but the presumption arises that the plaintiff
has been damaged the amount of the debt.
49 Nev. 70, 74 (1925) Wheeler v. Hurley
with the mandate of a writ of execution there is not only a breach of duty, but the
presumption arises that the plaintiff has been damaged the amount of the debt. The rule is
that, for failure to return an execution, the measure of damages is the actual loss sustained,
which is a prima facie the amount of the execution. Sedgwick on Damages (9th ed.) sec. 556;
Freeman on Executions (3d ed.), 368; 35 Cyc. 1727. Section 1650, Revised Laws, makes it
mandatory upon a sheriff to whom any writ of execution shall be delivered to execute the
same with diligence, according to its command, and to return it without delay to the proper
court, with his certificate endorsed thereon of the manner of its service or execution, or, it not
served or executed, the reasons of his failure. For a failure so to do, he shall be liable to the
party aggrieved for all damages sustained by him on account of such neglect. Since the
measure of damages is the actual loss sustained, which is prima facie the amount of the
execution, we do not understand that in an action for damages for failure to return an
execution it is essential for the plaintiff in order to maintain his action to allege the value of
the property or that the value exceeded the amount of the judgment. We are therefore of
opinion that the point raised is not well taken.
4. Furthermore, the plaintiff pleaded that the property levied upon was the value of $2,400
and in excess of the execution, and upon that question the plaintiff at the trial voluntarily took
the burden of proof. The plaintiff gave evidence of the value of the property, and the
defendant also gave evidence of its value. The cause having been tried on the part of plaintiff
upon the theory that the value of the property was in issue, it is too late to invoke the rule of
pleading relied upon for reversal of the judgment for the first time in this court.
Our conclusion is that the judgment must be affirmed, and it is so ordered.
Coleman, C. J., and Ducker, J.: We concur in the order of affirmance for the reason last
stated.
____________
49 Nev. 75, 75 (1925) State v. Olivieri
STATE v. OLIVIERI
No. 2680
June 17, 1925. 236 P. 1100.
1. Criminal LawOpening Statements by Counsel for State and for Defendant Permissible
under Criminal Practice Act.
Under criminal practice act of Nevada, both district attorney and defendant or his attorney may
outline testimony to be offered, to end that jury may more clearly sift and digest evidence.
2. Criminal LawOpening Statements Not Evidence nor Binding as an Admission.
Opening statements of counsel are not evidence of any character, and cannot be so considered by jury,
and are not binding as an admission of any fact.
3. Criminal LawViolation by Prosecuting Attorney of Rule Requiring Opening Statement
To Be Fairly Made Not of Itself Evidence of Bad Faith and Reversible Error.
It is duty of counsel, in making an opening statement, to state facts fairly, and refrain from stating
facts which he cannot or will not be permitted to prove, but a mere violation of such rule by prosecuting
attorney is not of itself evidence that he acted in bad faith and reversible error.
4. Criminal LawOpening Statement of Prosecuting Attorney, Going Beyond Facts Proven,
Held Not Reversible Error, where Not Made with Intent to Influence Jury, and in View
of Conviction of Lesser Crime.
In prosecution for assault with intent to kill, statement by prosecuting attorney in his opening
statement, which was not supported by subsequent proof, held not reversible error, where not made with
intentional disregard of truth, or intent to influence jury, and in view of verdict for lesser offense than that
charged.
5. HomicideAdmission of Testimony that Defendant Seen Pointing Revolver Held Not
Prejudicial Error, in View of Conviction of Lesser Offense.
In prosecution for assault with intent to kill, admission of testimony that, within a few hours before
defendant shot prosecuting witness, defendant was seen in saloon handling and pointing a revolver, held
not prejudicial error, where defendant was found guilty of a lesser offense.
6. Criminal LawDefendant Cannot Complain of Statements of Prosecuting Attorney or
Testimony which Reacted in His Favor.
Defendant is in no position to complain of statements of prosecuting attorney or admission of
testimony reacting in his favor.
See 16 C.J. sec. 2225, p. 889, n. 32; sec. 2226, p. 889, n. 40, 42; p. 890, n. 45, 46; sec. 2227, p. 891, n. 67, 69;
17 C.J. sec. 3638, p. 298, n. 23; p. 300, n. 37; sec. 3662, p. 317, n. 10; sec. 3723, p. 358, n. 46.
49 Nev. 75, 76 (1925) State v. Olivieri
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Paladino Olivieri was convicted of an assault with a deadly weapon, and appeals.
Affirmed.
James T. Boyd and Peter Breen, for Appellant:
Statements of district attorney in opening address were uncalled for, did not throw light on
crime charged, were unsupported by evidence, and constitute reversible error. State v. Scott,
37 Nev. 432.
Character cannot be shown by specific acts, but only by reputation in community in which
one lives, nor can one's character for peace and quiet be attacked until he offers evidence of
his good character. State v. Sella, 41 Nev. 134; Underhill on Crim. Ev. sec. 82.
It is prosecutor's duty to be unprejudiced, impartial, to be bent only on seeing justice done
and law vindicated. Mere objection of counsel and admonition by court may not be sufficient
to remove prejudice caused by unwarranted remarks of prosecutor. State v. Rodriguez, 31
Nev. 346.
Antecedent and subsequent acts of person accused of crime are admissible only for purpose
of throwing light on crime, or motive of defendant in crime for which he is being tried, 30
C.J. 195.
Prosecutor accused defendant of being vicious, intoxicated, having killing propensities.
Evidence did not support statement. It was prejudicial error. Williams v. State, 114 P. 1114.
M.A. Diskin, Attorney-General; Thos. E. Powell, Deputy Attorney-General; L.D.
Summerfield, District Attorney, and Harland L. Heward, Assistant District Attorney, for the
State:
Evidence of conduct of defendant shortly before homicide indicating he was in reckless
humor and desired trouble is admissible, and prosecutor may also show he was armed at time
of such conduct. 30 C.J. 195; Wysong v. State, 146 S.W. 941.
Prosecutor's opening address is statement of what he expects to prove.
49 Nev. 75, 77 (1925) State v. Olivieri
expects to prove. If made in good faith it cannot constitute error. Anyway, jury is sworn to try
case on evidence adduced.
OPINION
By the Court, Sanders, J.:
The information in this case was for an assault with intent to kill. The defendant was
convicted of an assault with a deadly weapon, with intent to inflict upon the person of
another a bodily injury, where no considerable provocation appears. The defendant having
been convicted, and a motion for a new trial denied, has appealed from the judgment
sentencing him to imprisonment in the state prison for the term of not less than one year nor
more than two years. Upon the certificate of the trial judge of probable cause for appeal, the
execution of the sentence was stayed pending its final determination.
The appellant, herein referred to as the defendant, seeks reversal of the judgment upon the
ground of the alleged misconduct of the assistant district attorney in making the opening
statement of the facts the state expected to prove, claiming that said attorney was permitted,
over the defendant's objection, to state facts which he could not, or would not, be permitted to
prove upon the trial. The statement complained of was, in effect, that the defendant, shortly
before shooting the prosecuting witness, was intoxicated and in a reckless or vicious humor,
desired trouble, and was armed. The proof on the part of the state did not measure up to the
statement made by its attorney.
1-3. It is permissible under our Criminal Practice Act (Rev. Laws, secs. 6851-7529), after
the reading of the indictment or information by the clerk to the jury and stating the
defendant's plea, for both the district attorney and the defendant or his attorney to outline the
testimony to be offered, to the end that the jury may more clearly sift and digest the evidence.
People v. Weber, 149 Cal. 325, 86 P. 671. Opening statements of counsel, however, are not
evidence of any character or of anything, and cannot be so considered by the jury.
49 Nev. 75, 78 (1925) State v. Olivieri
counsel, however, are not evidence of any character or of anything, and cannot be so
considered by the jury. As to the prosecution or defense, the statement of either is not binding
as an admission of any fact, nor available against either. People v. Stoll, 143 Cal. 689, 77 P.
818. It is the duty of counsel making a statement to state the facts fairly, and to refrain from
stating facts which he cannot, or will not, be permitted to prove. People v. Stoll, supra. Yet
the mere violation of this rule by a prosecuting attorney is not of itself evidence that he acted
in bad faith, and reversible error. People v. Wong Hing, 176 Cal. 699, 169 P. 357; People v.
Davis, 26 Cal. App. 647, 147 P. 1184. Usually such an overstatement reacts upon the party
making it. People v. Gleason, 127 Cal. 323, 59 P. 592; 8 Cal. Jur. Sec. 323.
4. The experienced attorney for the defendant concedes in argument that, where the
defendant is accused of an assault with intent to kill, evidence of the conduct of the defendant
shortly before the shooting, indicating that the defendant was in a reckless or vicious humor
and desired trouble, is admissible upon the question of intent, but contends that where, as in
this case, there is no evidence to support the statement, which could only have been made for
the purpose of inflaming the minds of the jurors against the defendant, such a statement
constitutes reversible error. We find nothing in the record to indicate either an intentional
disregard of truth, or an intent on the part of the assistant district attorney to influence the jury
by a false statement of the facts he expected to prove. The verdict itself furnishes a sufficient
answer to the argument that the jurors were influenced against the defendant by the statement
made by the assistant district attorney in opening the cause for the state.
There is nothing in the case of State v. Fronhofer, 38 Nev. 448, 150 P. 846, in conflict with
what is said by the California authorities cited concerning opening statements. In fact, in State
v. Fronhofer the court said the district attorney may state what he expects to prove without
encroaching upon defendant's rights or taking chances upon committing reversible error.
49 Nev. 75, 79 (1925) State v. Olivieri
or taking chances upon committing reversible error. The court said, however, that, as the case
must be reversed, upon other grounds, it need not determine whether the statement
complained of should be regarded as prejudicial error.
5. It is contended that the trial court erred in permitting a witness for the state to testify to
the effect that, within a couple of hours before the defendant committed the act of firing the
shot into the body of the complaining witness, he was seen in the Tip saloon handling and
pointing a revolver. We do not understand, in view of the verdict, how the defendant can
justly claim that the testimony was prejudicial. The jury found that the defendant was guilty
of an assault with a deadly weapon, with intent to inflict upon the person of another a bodily
injury, where no considerable provocation appeared.
6. It is argued that, unless the jury were influenced by the statements of the assistant
district attorney, and the testimony pertaining to the defendant's conduct prior to the shooting,
there would have been no cause for the jury to find the defendant guilty of a much less crime
than that charged in the information. Certainly the defendant is in no position to complain of
statements or testimony which reacted in his favor.
The judgment is affirmed.
____________
49 Nev. 80, 80 (1925) Brockbank v. Mining Company
BROCKBANK v. MINING COMPANY
No. 2692
June 18, 1925. 237 P. 337.
1. Appeal and ErrorNo Reversal for Erroneous Admission of Evidence Without which
There is Sufficient Competent Evidence to Support Findings.
Judgment will not be reversed for error not prejudicing losing party, such as admission of improper
evidence, without which there is sufficient competent evidence to support court's findings.
2. CorporationsAgreement of Controlling Stockholders, that Stock of Another Company
Issued to them and Minority Stockholder for Transfer of All Property Should Not Be
Placed on Market Until Issuing Company Was Fully Financed, Held Binding on
Minority Stockholder.
Agreement by stockholders, contributing entire capital of and absolutely controlling corporation, that
stock agreed to be issued to them and minority stockholder by another corporation, for transfer of all
property rights of former corporation should not be placed on market until issuing company was fully
financed, held binding on transferor company and minority stockholder, though it did not affirmatively
appear that he was informed of such agreement in respect to his stock.
3. Principal and AgentAgent's Acts Cannot Be Nullified by Subsequent Revocation of
Power of Attorney.
Power of attorney cannot be revoked, so as to nullify attorney's acts before revocation.
4. DamagesGeneral Damages and Special Damages Distinguished.
Damages necessarily resulting from wrongful act are general, and need not be specially pleaded,
while damages which are natural, but not necessary, consequences of such act are special, and must be
specially pleaded.
5. CorporationsReversal of Judgment for Damages from Depreciation in Value of Stock
before Delivery Not Justified in Absence of Allegations and Evidence that Plaintiff
Contemplated Selling Stock.
Mere failure to promptly deliver stock certificates held not to justify reversal of judgment in
stockholder's action denying damages from depreciation in value during time stock was withheld in
absence of allegations, evidence, or findings that plaintiff contemplated selling his stock, though it was
corporation's duty to deliver stock without demand under Rev. Laws, sec. 1157; no special damage being
pleaded.
6. CostsPlaintiff Held Entitled to Only General Damages in Nominal Sum, and Hence Not
to Costs.
Plaintiff having received stock certificates, for depreciation in value of which before delivery he sued,
without alleging or proving that he contemplated selling stock, could recover only
general damages in nominal sum, and hence was not entitled to costs.
49 Nev. 80, 81 (1925) Brockbank v. Mining Company
proving that he contemplated selling stock, could recover only general damages in nominal sum, and
hence was not entitled to costs.
See (1) 4 C.J. sec. 2952, p. 971, n. 58; (2, 5) 14 C.J. sec. 720, p. 488, n. 79; 14a C.J. Sec. 3640, p. 1060, n. 98;
(3) 2 C.J. sec. 197, p. 555, n. 23; (4) 17 C.J. sec. 305, p. 1002, n. 72; sec. 306, p. 1002, n. 78; (6) 15 C.J.
sec. 46, p. 44, n. 45.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by G. M. Brockbank against the Reorganized Silver King Divide Mining
Company. From a judgment for defendant, and an order denying new trial, plaintiff appeals.
Affirmed.
Cooke, French & Stoddard, for Appellant:
Every stockholder is entitled to delivery of certificate evidencing ownership. Rev. Laws,
1157.
Evidence conclusively shows defendant would have refused to deliver stock because of
alleged pool. Such being case, it cannot allege legal insufficiency of demand. Robinson M.
Co. v. Riepe, 37 Nev. 31.
McLean v. Medicine Co., 56 N.W. 68, cannot apply because this is not action for conversion,
but action on the case for damages specially alleged and proven. In that case plaintiff had
possession of duly endorsed certificates and sued because company refused to enter transfer
upon its books. He neither alleged nor proved special damages, and court held he could not
recover with such plea and proof. In instant case Brockbank never had certificates nor any
evidence of ownership because respondent refused delivery, and he could not sell without
having certificates. 2 Cook on Corporations, sec. 575, holds squarely that action on the case
lies against corporation for wrongful denial to stockholder of certificate, and in such action
one may recover nominal damages only, unless he proves special damages. Also, 11 C.J. 2.
5 Fletcher Corp., sec. 3453, does not hold where plaintiff has been damnified by wrongful
refusal to deliver, wrongdoer can absolve himself by simply returning stock after damage has
been inflicted.
49 Nev. 80, 82 (1925) Brockbank v. Mining Company
inflicted. Nominal damage is confined to cases where plaintiff sustained no actual damages
by refusal to deliver, citing Owen v. Williams, 89 Pac. 778. That was suit for conversion to
recover value of certificates alleged to have been converted. After issues joined, defendant
offered and plaintiff accepted certificates and trial court allowed plaintiff only nominal
damage. The cause of action being extinguished by acceptance, plaintiff could not recover
value and have stock also. Instant case is not for stock or value of it, but for damages suffered
by wrongful refusal to deliver. Only remedy is payment of damages. It takes no great legal
acumen to distinguish between action on conversion where no special damages are claimed,
and action where damages constitute cause of action.
Wm. McKnight, for Respondent:
Plaintiff could not speculate with market price of stock and repudiate if market fell. He
could not remain silent and await vicissitudes of fluctuating market. Meyer v. Morgan, 24
Am. Rep. 621.
Assuming for sake of argument only that D.E. and L.T. Brockbank had no express
authority to act as agents of plaintiff, he is still bound by doctrine of acquiescence. Curry v.
Hale, 15 W. Va. 875; King v. Rea, 21 P. 1084.
Corporation is not bound to carry stock to owner. He must make demand on company or
its officers. Teeple v. Hawkeye Co., 137 Iowa, 206.
Revocation of authority must be in unequivocal language, and will not be inferred if
principal's conduct is not inconsistent with continuance of agency. Fuller v. Brady, 22 Ill.
App. 174; Rawlings v. Nash, 83 Atl. 646.
Plaintiff's letter to defendant, even if it were revocation, could not operate retroactively
and did not affect previous pooling of stock by agent. Meisher v. Cleveland Dryer Co., 11 Ill.
App. 227.
Outstanding weakness of plaintiff's case is his own inaction. Action for specific delivery
would have afforded speedy relief. Jessup v. R.R. Co., 188 Fed. 931.
49 Nev. 80, 83 (1925) Brockbank v. Mining Company
Transfer of title on stock books is sufficient delivery and it is incumbent on plaintiff to
make demands. Ellis v. Essex B. Co., 2 Pick. 243; Bank v. Richards, 74 Mo. 77.
Actual delivery is not essential to pass title. Certificate is mere evidence of title and not
stock itself. State v. Pettinelli, 10 Nev. 147; State v. Leete, 16 Nev. 250.
To put corporation in default for nondelivery where corporation has not denied right thereto,
demand for issuance of certificate is necessary. Teeple v. Hawkeye, supra; Lipscomb v.
Condon, 56 W. Va. 416.
Without demand, which is refused, money judgment based on market value cannot be
recovered. Teeple v. Hawkeye, supra.
Acceptance of delivery extinguished claim for damage. Collins v. Lowry, 47 N.W. 612;
Owen v. Williams, 89 Pac. 778.
Action, whether conversion or case relates to form of proceeding, i.e., to remedy, and
not to principle involved.
If there were any conversion it was of unendorsed certificates only, not shown to have
value, and not of stock itself. Daggett v. Davis, 53 Mich. 35.
Special damages are not implied. They must be set forth with particularity. Treadwell v.
Whittier, 22 P. 266; Buckley v. Buckley, 12 Nev. 435.
OPINION
By the Court, Coleman, C. J.:
This action was brought to recover damages alleged to have been sustained by reason of
the refusal of the defendant to promptly deliver to the plaintiff certificates for 10,000 shares
of stock in the defendant company, to which the plaintiff claims he was entitled. From a
judgment in favor of the defendant, and an order denying a motion for a new trial, an appeal
was taken. The parties will be referred to as in the lower court.
It is contended that in October, 1922, the plaintiff and numerous others were the owners
and holders of stock in the Homestake Mines Company, a Nevada corporation, which held
options on certain mining claims; that it, about the date mentioned, entered into an
agreement with the defendant company whereby it agreed to transfer to the defendant
company the options so held, in consideration of the payment of its debts, and the
issuance of each of the stockholders of the Homestake Company its own stock, in an
amount equal to that held in the Homestake Company; that the debts of the Homestake
Company were paid and the options mentioned were transferred to the defendant
company.
49 Nev. 80, 84 (1925) Brockbank v. Mining Company
which held options on certain mining claims; that it, about the date mentioned, entered into
an agreement with the defendant company whereby it agreed to transfer to the defendant
company the options so held, in consideration of the payment of its debts, and the issuance of
each of the stockholders of the Homestake Company its own stock, in an amount equal to that
held in the Homestake Company; that the debts of the Homestake Company were paid and
the options mentioned were transferred to the defendant company. Plaintiff further contends
that shortly after the consummation of the deal, and in October, 1922, he sent his 10
certificates in the Homestake Company, aggregating 10,000 shares, to the defendant
company, demanding that it issue and send to him a like number of certificates of 1,000
shares each in the defendant company; that it did issue to him such certificates, but that it
refused to deliver them until some time in June, 1923; and that, by reason of the depreciation
of the market value of the stock between the dates of his demand and the delivery, he was
damaged in the sum alleged.
The trial court made detailed findings of fact in favor of the theory of the case as urged by
the defendant company, and rendered judgment accordingly.
We will state such findings as are deemed necessary. It found that on October 17, 1922, an
agreement was entered into between the Homestake Mines Company and the defendant,
whereby, in consideration of the issuance of the Homestake Company of stock by the
defendant company its stock to the amount of 200,000 shares, and the assuming and the
payment of an indebtedness of not to exceed $5,000, the Homestake Company would transfer
all of its property rights to the defendant company. The court further found:
That it was not further, or at all, stipulated or agreed in and by said agreement or
otherwise, or at all, that the then outstanding shares of stock of the said Homestake Mines
Company of Nevada might be surrendered by the owners thereof, for cancellation or
exchange by reissuance or delivery to such stockholders for shares of the stock of the
defendant, at the ratio of share for share, or otherwise, or at all, or that whereupon, or at
all, the defendant would, on demand or otherwise, or at all, issue or deliver shares of its
stock to such stockholder or stockholders of said Homestake Mines Company of Nevada,
at the ratio of share for share, otherwise or at all, or deduct the amount of its said stock,
so delivered, or otherwise, or at all, to former shareholders of said Homestake Mines
Company of Nevada, from the said 200,000 shares, so or at all agreed upon, between the
said corporations, as a part of the consideration for said assignment or transfer of said
options or agreements."
49 Nev. 80, 85 (1925) Brockbank v. Mining Company
exchange by reissuance or delivery to such stockholders for shares of the stock of the
defendant, at the ratio of share for share, or otherwise, or at all, or that whereupon, or at all,
the defendant would, on demand or otherwise, or at all, issue or deliver shares of its stock to
such stockholder or stockholders of said Homestake Mines Company of Nevada, at the ratio
of share for share, otherwise or at all, or deduct the amount of its said stock, so delivered, or
otherwise, or at all, to former shareholders of said Homestake Mines Company of Nevada,
from the said 200,000 shares, so or at all agreed upon, between the said corporations, as a part
of the consideration for said assignment or transfer of said options or agreements.
It was further found that the defendant issued and delivered its certificates of stock to the
Homestake Company for 200,000 shares, and paid the indebtedness assumed; that at the time
of the making of the agreement mentioned the Homestake Company had caused to be issued
to the plaintiff certificates for 10,000 shares of its stock; that it was agreed between D.E.
Brockbank and L.T. Brockbank that they would furnish a list of the names of all persons to
whom the 200,000 shares of stock to be issued to the Homestake Company should be
reissued, and that all of the stock so to be issued to the members of the Brockbank family
should be held in pool until such time as the defendant company was properly financed, and
that the plaintiff is a member of the Brockbank family; that on or about November 11, 1922,
the defendant issued certificates of stock to the plaintiff for 10,000 shares of its stock, but that
the same was not delivered because of the pool agreement. The court further found that on
May 6, 1923, there was a meeting held at Reno, Nevada, attended, among others, by D.E.
Brockbank, who held a power of attorney from the plaintiff which authorized the said
attorney in fact to enter into a pool agreement in behalf of plaintiff for a further period of six
months, and that such pool agreement was entered into, and that in pursuance thereto a
telegram was sent to certain parties in New York with a view of interesting them, wherein
it was stated that such further pool agreement had been made.
49 Nev. 80, 86 (1925) Brockbank v. Mining Company
telegram was sent to certain parties in New York with a view of interesting them, wherein it
was stated that such further pool agreement had been made.
It is further found that the plaintiff made no demand of the defendant for the delivery to
him of stock certificates until May 16, 1923, that his certificates were delivered to the
plaintiff on June 21, 1923, but that the plaintiff did not sell the same until the month of
August. It is further found that at the time of the delivery of the stock to the plaintiff no
assessment by the defendant upon its stock was contemplated. It is further found that the
defendant at no time wrongfully withheld stock from the plaintiff.
If these findings are justified by the evidence, the order and judgment must be affirmed.
1. Many errors are assigned but we will not consider them in detail. It is said that the court
erred in many instances in admitting in evidence much irrelevant and immaterial evidence. It
is true, as contended, that much improper evidence is admitted, but eliminating it from
consideration, there is sufficient competent evidence to support the findings of the court, and
no judgment will be reversed because of error which does not prejudice the losing party.
2. The undisputed evidence in the case is to the effect that D.E. Brockbank and L.T.
Brockbank, brothers of the plaintiff, contributed all of the money which went into the
Homestake Company, and that they absolutely controlled it. So far as appears from the record
in the case, no meeting of either the directors or the stockholders of the Homestake Company
was ever held to ratify the contract made by D.E. and L.T. Brockbank in its behalf with the
defendant company.
The testimony of R.L. Colburn of the defendant company as to the negotiations for the
deal, which resulted in the issuance of the 200,000 shares of stock by the defendant to the
Homestake Company, is that D.E. Brockbank and L.T. Brockbank went to San Francisco,
where all of the negotiations were had, and that, after the terms of the agreement were
reached, the parties went to an attorney's office, where the minutes of the defendant
company approving the deal were prepared.
49 Nev. 80, 87 (1925) Brockbank v. Mining Company
the parties went to an attorney's office, where the minutes of the defendant company
approving the deal were prepared. He also testified that the understanding was that none of
the stock to be issued by the defendant company going to the Brockbanks should be placed
upon the market until the property was fully financed.
Though it does not appear affirmatively that the plaintiff was informed that it was agreed
that his stock should not be placed on the market, the agreement was nevertheless binding
upon the Homestake Company, and upon him as a stockholder in that company. While the
evidence is somewhat contradictory, we think all of the circumstances warrant the conclusion
reached by the court.
3. Had there been no agreement in the first instance as to the selling of the Brockbanks
stock, we think there is enough in the case to necessitate an affirmance. The plaintiff never
demanded his stock until May 16. On May 6 the meeting was held in Reno at which time the
plaintiff was represented by his attorney in fact, and, as found by the court, an agreement to
further pool the stock until the company was financed was made. The evidence as to this too
is contradictory, but we cannot say that the court was not justified in its finding. Counsel for
plaintiff says, however, that the principal is greater than the agent, and can revoke a power of
attorney at any time, and that his demand for the stock on May 16 was, in effect, a revocation
of such power of attorney. We are in accord with the contention as to the power of revocation
with one qualification, which is that a power of attorney cannot be revoked so as to nullify the
acts of an attorney if done prior to the revocation, and in this instance, the attorney having
acted on May 6, the attempted revocation on May 16 did not affect what had been done prior
thereto.
4-6. Counsel for the plaintiff says that pursuant to section 1157, Rev. Laws, it was the duty
of the defendant to deliver the stock without a demand. Assuming, for the purpose of this
case, without so deciding, that such is the law, we think the case of McLean v. Charles
Wright Medicine Co.,
49 Nev. 80, 88 (1925) Brockbank v. Mining Company
Wright Medicine Co., 96 Mich. 479, 55 N.W. 68, cited by counsel for respondent, controls
this case. Counsel for plaintiff concedes that the case mentioned would be an authority
justifying an affirmance of the judgment, but for the fact that the complaint pleads special
damages. We cannot agree with the assertion that the complaint pleads special damages.
Damages which necessarily result from a wrongful act are general damages, and need not be
specially pleaded, while damages which are the natural, but not the necessary consequences
of a wrongful act, are special in their nature, and must specially pleaded. Buckley v. Buckley,
12 Nev. 423, 435. Assuming, then, that the defendant was guilty of a wrongful act in not
promptly delivering the certificates of stock to the plaintiff, and as a result he is entitled to
recover general damages in a nominal sum, what facts are alleged in the complaint charging
any damages which are the natural but not the necessary consequences of the nondelivery of
the stock certificates to the plaintiff? Surely the mere failure of the defendant to deliver the
stock certificates to the plaintiff did not naturally result in damaging the plaintiff, other than
nominal damages, even though the stock did depreciate in value during the period of
nondelivery. So far as appears from the pleadings, the evidence, or the findings, the plaintiff
did not desire or contemplate selling his stock. If he had no desire to sell the stock, but to hold
it in the belief that the property would make a mine, and that the stock would ultimately, as a
result, attain great value, surely the mere fact that he did not have possession of the stock
certificates (his ownership to the stock, and rights as a stockholder being in no way
questioned), no matter what reason therefor was given, would result in no natural damage to
the plaintiff. As we view the complaint, no special damage is pleaded. In this view of the
case, the plaintiff having received his stock certificates, he can recover only general damages
in a nominal sum which would not entitle him to costs under our statute.
Other questions are discussed, but, in the view we take of the case, it is not necessary to
consider them.
49 Nev. 80, 89 (1925) Brockbank v. Mining Company
Counsel for plaintiff, in his oral argument, dealt very harshly with the defendant company,
attributing ulterior motives to it, and contending for the existence of certain facts reflecting
upon the honesty of purpose of the defendant. We think these statements are answered by the
findings of the court, which are fully justified by the record. In fact, this suit by the plaintiff
seems to be the result of deferred consideration. He received his stock in June, and held it
until August, six or seven weeks. Reading the entire record, we are impressed with the idea
that the plaintiff did not desire to sell his stock, but contemplated holding it with the hope that
the property owned by the defendant company would make a mine.
No prejudicial error appearing, it is ordered that the judgment and order appealed from be
affirmed, respondent to recover its costs.
____________
49 Nev. 90, 90 (1925) McNee v. McNee
McNEE v. McNEE
No. 2689
July 6, 1925. 237 P. 534.
1. Appeal and ErrorFinal Determination of All Questions of Conflicting Evidence within
Trial Court's Province, and Supreme Court Limited to Ascertaining if There is Evidence
on which Conclusions Could Reasonably Be Formed.
In suit under Rev. Laws, sec. 2355, to annul a marriage for want of understanding due to intoxication,
it was within province of trial court to finally determine all questions of conflicting evidence, and duty of
supreme court is merely to ascertain if there is evidence upon which lower court could have reasonably
formed its conclusion.
2. Appeal and ErrorEvidenceTrial Court May Base Its Judgment on Testimony of One
Witness against that of Several, and Appellate Court without Power to Enforce
Contrary Opinion by Reversal.
A trial court may base its judgment on testimony of one witness against that of several, if it is of
sufficient weight to force conviction of truth to reasonable minds, and appellate court is without power to
enforce a contrary opinion by reversing judgment.
3. MarriageEvidence Held to Sustain Finding that Plaintiff, for Want of Understanding
Due to Intoxication, Was Incapable of Assenting to Marriage Contract.
In suit under Rev. Laws, sec. 2355, to annul marriage, evidence held to sustain finding that plaintiff,
for want of understanding due to intoxication, was incapable of assenting to marriage contract, warranting
annulment of marriage.
4. MarriageBurden on Plaintiff to Prove by Satisfactory Evidence that He Was So Far
Intoxicated as to Have Been Incapable of Giving Rational Assent.
In suit under Rev. Laws, sec. 2355, to annul marriage for want of understanding due to intoxication,
burden was on plaintiff to prove by clear and satisfactory evidence that he was so far intoxicated as to
have been incapable of giving rational assent to obligations imposed.
5. EvidencePlaintiff's Brothers and Business Associates Held Qualified to Express
Opinion as to Mental Capacity to Understand Seriousness of Marriage Contract.
In suit to annul marriage for want of understanding due to intoxication, plaintiff's brothers and
business associates, held qualified to give their opinions as to whether plaintiff had mental capacity to
understand seriousness of marriage contract.
See. (1, 2) 4 C.J. Sec. 2855, p. 883, n. 33; p. 885, n. 39; (3, 4) 38 C.J. sec. 131, p. 1354, n. 27; p. 1355, n. 29;
(5) 22 C.J. sec. 766, p. 678, n. 18.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
49 Nev. 90, 91 (1925) McNee v. McNee
Action by Frederick A. McNee against Sadie G. McNee to obtain annulment of marriage.
From a judgment annulling marriage and order denying new trial, defendant appeals.
Affirmed. (Sanders, J., dissenting.)
Cooke, French & Stoddard, for Appellant:
Unsoundness of mind which will invalidate contract must exist at very time contract is
made, regardless of condition before or after. Rev. Laws, 2355; Dunphy v. Dunphy, 119 P.
512.
Opinions of nonexperts as to drunkenness several hours after ceremony, without facts
stated upon which opinions are based is no proof at all. Baughman v. Baughman, 4 P. 1006.
Burden of proof is on plaintiff to prove extent of incapacity. 29 Cyc. 913. Presumption is
for legality of contract. Evidence to repel must be satisfactory. 18 R.C.L. 427, Waughop v.
Waughop, 143 P. 444. Presumption of legality of marriage is the strongest presumption in the
law. 18 R.C.L. 416.
Mere weakness of mind or partial intoxication is not enough to annul marriage. Party must
be incapable of assent. Rev. Laws, 2355; 19 C.J. 814; Party must be deprived of reason. 26
Cyc. 844; Prine v. Prine, 34 L.R.A. 91.
Hoyt, Norcross, Cheney & Hoyt, for Respondent:
We have no serious controversy with counsel in respect to law governing cases of this
kind, but no two cases are precisely alike and it is province of trial court to consider all facts
to determine whether party was in possession of sufficient mentality to enter into solemn and
binding obligation. Our statute specifies as degree of incapacity, want of understanding.
Rev. Laws, 2355.
Trial court may conclude from all facts that party was incapable, though his demeanor at
time of ceremony did not so indicate to witnesses. True test is whether party was capable of
understanding obligations assumed by marriage. Findings of trial court are overthrown on
appeal only when they totally lack support of substantial evidence.
49 Nev. 90, 92 (1925) McNee v. McNee
evidence. Conflicts of testimony are deemed to be resolved in court below. Dunphy v.
Dunphy, 119 P. 512.
OPINION
By the Court, Ducker, J.:
This is an appeal from an action instituted to obtain an annulment of marriage. The
complaint states two causes of action. In the first it is alleged: That the plaintiff and
defendant, on or about the 21st day of April, 1921, at the town of Ingersoll, Province of
Ontario, Dominion of Canada, entered into a form of marriage, and were by reason of said
form declared to be husband and wife; that at the time of entering into said form of marriage
the plaintiff, by reason of want of understanding, occasioned by intoxication, was incapable
of assenting thereto. In the second cause of action it is alleged: That at the time of entering
into said form of marriage and immediately prior thereto, the defendant, taking advantage of
the plaintiff's condition and want of understanding, did then and there fraudulently persuade
plaintiff to enter into said form of marriage for the purpose of obtaining from plaintiff or his
family a pecuniary advantage. It is alleged that there has been no subsequent cohabitation of
plaintiff and defendant since entering into said form of marriage.
The allegations set forth in the complaint as grounds for annulment, with the exception of
the fact of no cohabitation, are denied in the answer specifically and by the statement of facts,
which, in effect constitute denials.
The action was tried before the court without a jury. Plaintiff prevailed, and a judgment
was rendered on the 20th day of September, 1924, annulling the marriage, and declaring it to
be wholly void from the date of judgment. Defendant has appealed from the judgment and the
order denying the motion for a new trial.
The section of our statute which authorizes an action of this kind reads:
When either of the parties to a marriage, for want of age or understanding, shall be
incapable of assenting thereto, or when fraud shall have been proved, and there shall have
been no subsequent voluntary cohabitation of the parties, the marriage shall be void from
the time its nullity shall be declared by a court of competent authority."
49 Nev. 90, 93 (1925) McNee v. McNee
thereto, or when fraud shall have been proved, and there shall have been no subsequent
voluntary cohabitation of the parties, the marriage shall be void from the time its nullity shall
be declared by a court of competent authority. Section 2355, Rev. Laws, vol. 1.
No evidence was introduced in support of the cause of action based on fraudulent
persuasion, the plaintiff confining his proof to his alleged state of intoxication at the time of
the marriage. Upon this phase of the case the court found as follows:
That at the time of entering into said form of marriage plaintiff, by reason of want of
understanding occasioned by intoxication, was incapable of assenting thereto.
The court further found:
That since the entering into said form of marriage there has been no subsequent
cohabitation of plaintiff and defendant.
Upon the latter finding there is no conflict of evidence whatever. It was conclusively
proven that there was no cohabitation after the marriage. But as to the former finding the
evidence is conflicting. Counsel for appellant contend that there is no substantial evidence to
support the finding of the court. This is the only question presented for determination. We
need not undertake to define the degree of intoxication of a party to a marriage which will
authorize a judgment annulling it. The test appears in the statute, which declares:
When either of the parties to a marriage, for want of * * * understanding, shall be
incapable of assenting thereto. * * *
We assume that the trial judge applied this test to the evidence before him in reaching the
conclusion that the marriage was void by reason of the degree of plaintiff's intoxication at the
time the ceremony was performed.
1. We have carefully considered all of the evidence bearing upon the issue presented, and
are of the opinion that there is substantial evidence to justify the court in making the finding
and rendering the judgment annulling the marriage. There is evidence which would have
justified a contrary conclusion, but it was within the province of the lower court to finally
determine all questions of conflicting evidence.
49 Nev. 90, 94 (1925) McNee v. McNee
justified a contrary conclusion, but it was within the province of the lower court to finally
determine all questions of conflicting evidence. Our duty goes no further than to ascertain if
there is evidence upon which the lower court could have reasonably formed the conclusion
that the plaintiff, for want of understanding due to intoxication, was incapable of assenting to
the marriage contract. As stated in Dunphy v. Dunphy, 161 Cal. 380, 119 P. 512, 38 L.R.A.
(N.S.) 818, Ann. Cas. 1913b, 1230:
We are not empowered to determine, as an original question, whether the plaintiff was or
was not of unsound mind. Our duty begins and ends with the inquiry whether the trial court
had before it evidence upon which an unprejudiced mind might reasonably have reached the
conclusion which was reached. Conflicts of testimony are deemed to have been finally
resolved in the court below.
Our own decisions are in accord with that statement.
We deem it unnecessary to state more than a brief summary of the evidence, which we
regard as sufficient basis for the judgment of annulment. To state the testimony of defendant
would prolong this opinion and serve no useful purpose, for it is conceded that it supports her
defense that plaintiff was not intoxicated at the time of marriage. It is not, however, as we
have already indicated, of such strength to weaken plaintiff's evidence to the extent that the
trial court was not entitled to reasonably consider it worthy of belief, and to base its judgment
upon it.
The parties resided in London, Ontario, and had been keeping company for several months
prior to their marriage. On the night before their marriage they were together at the London
Hunt Club near London until about 1:30 a.m., April 22, 1921, when they returned to London,
and thence to the town of Ingersoll, where they were married at about noon of that day.
Ingersoll is about 18 miles from London. They went in an automobile from London to
Ingersoll and back to London after the marriage, the plaintiff driving the car going and
returning.
49 Nev. 90, 95 (1925) McNee v. McNee
and returning. On the same day, after a conference with his brothers and an attorney, plaintiff
left London for New York in company with one of his brothers. The plaintiff and defendant
did not meet again until in the courtroom at Reno at the time of the trial. Plaintiff had been
employed by his brothers as a bookkeeper for some time prior to the marriage. Plaintiff's
version of his recollection of the marriage, and the incidents prior thereto, is substantially as
follows: From the time he first met defendant until the day of his marriage, he was drinking
every night, except on three occasions. Practically every night he became completely
intoxicated in her company. On the evening of the 21st of April they went to the London
Hunt Club in an auto and sat in the driveway of the club and drank a bottle of Scotch whisky.
They both became intoxicated, and plaintiff remembered little more until after his marriage.
He had a very dim recollection of going through a marriage ceremony. He had no intention of
getting married, and had never asked defendant to marry him. On cross-examination he
testified that he had no recollection of incidents on the night before the marriage after about
half past 10 o'clock; that he had no recollection of how he happened to go to Ingersoll, or who
suggested it; and had no recollection of how he found the minister's house or when he left
there. He could not remember getting the marriage license.
According to the deposition of the steward of the London Hunt and Country Club, he saw
the plaintiff and defendant at the club on the night of the 21st of April, 1921, and drove them
to London. The steward testified:
He (plaintiff) was drunk. He acted foolish. He was asleep and woke up dazed and stupid.
The defendant asked me to drive them to town. She said if I didn't she wasn't going to ride
with him. I drove them into town, and left them at a corner of Adelaide and King streets about
1:30 a.m. the 22d of April, 1921. He was still under the influence. A day or so afterwards I
saw the paper, and the defendant called me up and asked me if I remembered the date, and
could I say the plaintiff was not drunk.
49 Nev. 90, 96 (1925) McNee v. McNee
if I remembered the date, and could I say the plaintiff was not drunk. I said I would say he
was tight.
In reply to cross-interrogatories, the steward said:
He was very drunk early when I got in at 12:30 a.m. He appeared stupid and dazed, and
he was still under the influence at 1:30 a.m. when I left him. He smelt strongly of liquor.
In addition to the deposition of the steward, plaintiff introduced in evidence the
depositions of his three brothers, James A. McNee, Ernest D. McNee, and Elmer W. McNee,
the deposition of John Wesley Cunningham, an accountant for the McNee brothers, and the
deposition of Newenham Parke Graydon, a solicitor. Each of the witnesses saw the plaintiff
on the day of the marriage shortly thereafter. In part, James McNee testified:
He (plaintiff) came into my office in London, 381 Clarence street, about 12:30 noon. His
appearance indicated he had been drinking heavily. He looked stupid, and smelt strongly of
liquor. At periods he drank heavily. Took it occasionally and at times to excess, and acted
very foolish when under its influence. I don't think he was in a condition to realize the
seriousness of the contract he entered into. He went home, 370 Queens Avenue, London, and
from there took train in a few hours for New York. My brother Elmer accompanied him. I
didn't think he was in a fit state to travel alone.
Asked on cross-examination to state the facts on which he based his opinion that plaintiff
was not in a mental condition to comprehend a matter of the seriousness of entering into a
marriage contract, the witness replied: Had silly expression, acted as if stupid, and reeked
with liquor. The witness gave his opinion that the plaintiff had been under the influence of
liquor for several hours.
Ernest D. McNee saw the plaintiff at about 12:30 p.m. on the day of the marriage. In
substance he testified:
He (plaintiff) was simply intoxicated to the extent of not knowing what he was doing. He
smelt strongly of liquor and was stupid. At periods he drank to excess for a long time back,
drank to excess at intervals.
49 Nev. 90, 97 (1925) McNee v. McNee
for a long time back, drank to excess at intervals. He was in a condition in which he could not
comprehend the seriousness of this contract or any other. Elmer McNee accompanied my
brother, the plaintiff, to New York, because he was in no condition to travel alone. The
plaintiff never indicated any intention of marrying to any one, and made absolutely no
preparations for same, nor did he have the necessary equipment by way of wearing apparel.
On cross-examination the witness was asked to state the facts upon which he based his
opinion that his brother was not in a mental condition to comprehend the seriousness of
entering into marriage, and replied:
I did not consider he was in a mental condition to understand or comprehend what he was
doing because he was stupid from drink.
The witness testified further:
I saw him the day before his marriage some time during the day. From his condition when
I saw him after his marriage he must have been intoxicated at the time of the marriage.
Elmer McNee saw the plaintiff on the day of the marriage at about 1:30 p.m. In substance,
he testified:
He was in a drunken condition for several hours, by his appearance. He drank to excess,
and became uncontrollable at intervals. He went to New York on the train leaving London at
5 p.m. I accompanied him, as he was unable to look after himself. He proceeded under legal
advise. From his condition at the time I saw him I would judge he had been in that state for
some time, including the marriage. He never intimated to me or any one that (he)
contemplated marriage, and made no preparations for same, nor did not have clothes or even
any bag suitable for that purpose.
He was asked if, in his opinion, the plaintiff was in such mental condition as to be unable
to comprehend the seriousness of entering into a marriage contract, and answered:
He would not know what he was doing or understand the seriousness of any contract.
During the cross-examination the witness said: "Periodically he drank to excess.
49 Nev. 90, 98 (1925) McNee v. McNee
Periodically he drank to excess. He was stupid and dopey, and reeked of liquor. He did
not seem to know what he was doing. I went with him to New York. I was not present at the
marriage ceremony. The plaintiff was apparently under the influence of liquor when he
separated personally from the defendant.
Newenham Parke Graydon had known the plaintiff for ten years. He saw him at 370
Queens Avenue, London, on the 22d day of April, 1921, at about 2 p.m., where he had been
called for an interview. Concerning plaintiff's condition, the witness testified:
He was considerably under the influence of liquorwas stupid and smelt strongly of
liquor, and had the appearance of having been on a spree and in that condition for some time
previously. In my opinion at that time he was not in a condition to comprehend the
seriousness of a marriage ceremony.
The witness also stated:
He went to New York about 5 p.m., accompanied by his brother Elmer.
In reply to the question whether, in his opinion, the plaintiff was in a condition to safely
travel alone, the witness said:
No; I advised him to go, and one of the family to go with him to look after him in his
condition.
On cross-examination, when asked to state the facts upon which he based his opinion that
the plaintiff was not in a condition to travel safely alone, the witness said:
He was under the influence of liquor thenwas stupidsmelt strongly of liquor, and did
not seem capable of looking after himself. He was steeped in liquor.
John Wesley Cunningham had known the plaintiff for 23 years. He saw him at about 12:30
p.m. on the 22d. The witness stated:
He was plainly intoxicatedstupid and silly; he appeared as if he had been in that
condition for some time. He said: Mr. Cunningham, I am married.' I replied: Fred you are
silly; you don't know what you are talking about.' Asked to state his opinion as to the
condition of plaintiff when he saw him the witness replied:
49 Nev. 90, 99 (1925) McNee v. McNee
Asked to state his opinion as to the condition of plaintiff when he saw him the witness
replied:
The usual condition of a man who had been drinking heavily for some time. He did not
seem to have full possession of his faculties; seemed to be confused in what he was saying
and doing.
On cross-examination the witness was asked to state the facts upon which he had based his
opinion, and replied:
From his stupid, befuddled appearance, and he reeked of liquor. Quite different from his
appearance and conduct on ordinary occasions; from his appearance; from the smell of liquor
on him, and from the stupid manner in which he acted.
2, 3. Such, in substance, constitutes plaintiff's evidence. According to his testimony he was
so far gone in drunkenness at the wedding as to have no rational conception of what he was
doing. He had, he said, a very dim recollection of going through a marriage ceremony. It was
just a haze. If his testimony was true, he did not have the understanding required by law to
enter into a valid marriage. Whether it was true or not was for the trial court to determine
after a fair and candid consideration of all the evidence bearing on the point. A trial court may
base its judgment upon the testimony of one witness against the testimony of a number of
witnesses, if it is of sufficient weight to force a conviction of truth to a reasonable mind, and
the appellate court is without power to enforce a contrary opinion by reversing the judgment.
Aside from plaintiff's testimony, which also disclosed an almost constant drinking to
excess during the time he was keeping company with the defendant, there is the evidence of
his witnesses, which the trial court could properly consider, that he was very drunk during the
night preceding the day of the marriage and very soon after it. The minister stated that the
marriage ceremony was performed about noon of the 22d. About an hour afterwards he was
seen by the brothers, the accountant, and, a little later, by the solicitor. If their testimony is
worthy of belief, he was then in a drunken, stupid condition, and smelt strongly of liquor.
49 Nev. 90, 100 (1925) McNee v. McNee
stupid condition, and smelt strongly of liquor. The steward of the London Hunt Club, who
may be regarded as a disinterested witness, testified that he was in the same condition when
he, at defendant's request, drove them from the club to London, and left them there at 1:30
a.m. He was stupid and dazed, the steward said, and was still under the influence at 1:30
a.m. when I left him. He smelt strongly of liquor. Defendant's counsel contend that this
evidence is too remote from the time of the marriage to be of any consequence. They argue
that he could have been very drunk on these occasions and perfectly sober at the marriage.
The inference is, of course, a legitimate one, but a contrary inference may also be indulged.
4, 5. It is true that such evidence standing alone would have been insufficient to sustain the
action of the trial court, the burden being on plaintiff to prove by clear and satisfactory
evidence that he was so far intoxicated when he went through the marriage ceremony as to
have been incapable of giving a rational assent to the obligations imposed. But it does not
follow that evidence of extreme drunkenness shortly before and shortly after the marriage was
not material to be considered by the trial court in connection with the evidence of intoxication
at the time. We have no means of knowing what, if any, weight the trial court gave to the
statements of plaintiff's witnesses to the effect that in their opinions he did not have the
mental capacity to understand the seriousness of the marriage contract. But we are not
prepared to say as a matter of law that they should have been rejected, especially the opinions
of the three brothers. Their close relation to him and business connection with him, their
knowledge of his periodical drinking excesses, their observation of his mental condition
shortly after the marriage, qualified them to give their opinions on the subject, which the trial
judge could accord such weight as he thought they deserved, having due regard, of course, for
the relationship existing between them and plaintiff, which might predispose them in his
favor.
49 Nev. 90, 101 (1925) McNee v. McNee
We do not consider it necessary to comment on the many unfavorable inferences argued by
counsel from plaintiff's evidence. These were conclusively resolved against defendant by the
judgment of the trial court, which we hold is supported by substantial evidence.
The judgment is affirmed.
Coleman, C. J.: I concur.
Sanders, J.: I dissent.
____________
49 Nev. 101, 101 (1925) Cornell v. Gobin
CORNELL v. GOBIN
No. 2675
August 5, 1925. 238 P. 344.
1. Appeal and ErrorStatute of Frauds Cannot Be Raised for First Time on Appeal.
Statute of frauds cannot be raised for first time on appeal.
2. EjectmentEvidence Held Not to Show that Party through Whom Plaintiffs Claimed Had
Surrendered Land to Defendant.
In action in ejectment to recover possession of unsurveyed government land, evidence held not to
show that company through whom plaintiffs claimed had surrendered land to defendant.
3. EvidenceWhere Trustee in Bankruptcy Had Sold Property Under Order of Court, there
Is a Presumption that Bankrupt Listed Property Among Its Assets.
Where trustee in bankruptcy has sold property under order of court, there is a presumption that
bankrupt listed property among its assets.
4. EjectmentEvidence Held Not to Show that Company through Whom Plaintiffs Claimed
Land Had Abandoned It.
In action in ejectment to recover possession of unsurveyed government lands, evidence held not to
show that company through whom plaintiffs claimed had abandoned land.
5. EjectmentPlaintiffs Held Entitled to Judgment for Possession of Land, where Party
through Whom They Claimed Had Been in Actual Possession of Property at Time of
Defendant's Entry.
Where, in action in ejectment to recover possession of unsurveyed government land, party through
whom plaintiff claimed had been in actual possession at time of defendant's entry, and there was no
showing that transfer of right to possession was made to defendant, held plaintiff was entitled to judgment
for possession of premises.
49 Nev. 101, 102 (1925) Cornell v. Gobin
6. EjectmentWhere No Legal Title Is Shown in Either Party, One Showing Prior
Possession in Himself Has Better Right.
Where no legal title is shown in either of adverse claimants to land, the one showing prior possession
in himself or those through whom he claims has the better right.
7. EjectmentPrima Facie Case Is Established in Action in Ejectment, when Plaintiff Proves
Prior Possession in Some One of His Grantors in His Chain of Title.
Prima facie case is established in action in ejectment, when plaintiff proves prior possession in some
one of his grantors in his chain of title.
8. Public LandsGovernment Only Can Raise Question whether Corporation Can Take and
Hold Possession of Land, Title to Which Is in United States.
In action in ejectment to recover possession of unsurveyed government land, whether corporation
could take or hold possession of land, title of which was in the United States government, held to be
question which government alone could raise.
See (1) 3 C.J. sec. 593, p. 701, n. 87; (2, 4, 5, 6, 7) 19 C.J. sec. 25, p. 1048, n. 92; sec. 33, p. 1056, n. 4; sec.
249, p. 1178, n. 30; sec. 251, p. 1180, n. 54; 1 C.J. sec. 8, p. 7, n. 36; (3) 22 C.J. sec. 68, p. 128, n. 83;
sec. 82, p. 146, n. 51; (8) 32 Cyc. p. 821, n. 76; p. 823, n. 82.
Appeal from Third Judicial District Court, Lander County; W.R. Reynolds, Judge.
Action by E.B. Cornell and another against Percy B. Gobin. From a judgment for
defendant, and an order denying plaintiff's motion for a new trial, the latter appeal. Judgment
reversed, and cause remanded.
A.L. Haight, for Appellants:
Defendant is not entitled to affirmative relief where no such relief is asked for by way of
cross-complaint or counterclaim. Powers v. Van Dyke, 117 P. 797.
Where no legal title is shown in either party, one showing prior possession in himself or
grantors has better right. Plaintiff in ejectment may recover against defendant having no better
right and who relies solely on later possession or entry. 15 Cyc. 30; Staininger v. Andrews, 4
Nev. 59.
Possession of grantors inures to successor. Southerland, Pl. & Pr. 6301.
49 Nev. 101, 103 (1925) Cornell v. Gobin
Right to government land cannot be initiated by trespass. Short v. Read, 30 Nev. 373;
Nash v. McNamara, 30 Nev. 114.
What is necessary to constitute actual possession varied with localities and circumstances.
Courtney v. Turner, 12 Nev. 345.
Surrender must be in writing. Rev. Laws, 1069.
Actual residence is not necessary on possessory claim; use and dominion are notice to
world. Tidwell v. Cattle Co., 53 P. 192.
Jumper cannot oust squatter. Nickals v. Winn, 30 P. 435.
Morley Griswold, for Respondent:
Counsel for appellants correctly state law, but our contention is that Porter, Ryan, et al., up
to and including Frank Company, were in actual possession; that it surrendered its possession
to defendant; that he has been in possession ever since; that his possession is therefore lawful;
that defendant did not eject or oust plaintiffs, and trial court so found, and finding is
supported by uncontradicted evidence. Fallon Company, through which plaintiffs claim,
never claimed or had possession, but recognized possession of defendant. Sankey v. Noyes, 1
Nev. 58.
Party may surrender right to property when it is dependant upon possession only. 1 C.J. 10;
Gluckeuf v. Reed, 22 Cal. 369.
Supreme court will not disturb finding if supported by substantial evidence. Turley v.
Thomas, 31 Nev. 181.
OPINION
By the Court, Ducker, J.:
This is an action in ejectment to recover possession of 80 acres of unsurveyed government
land situated in the county of Lander, and damages for withholding possession. The trial was
had before the court without a jury. Judgment was rendered in favor of defendant. Plaintiffs
appeal from the judgment and order denying their motion for a new trial.
49 Nev. 101, 104 (1925) Cornell v. Gobin
their motion for a new trial. Plaintiffs never had possession of the land, but base their right of
possession and to recover upon the following facts established by the evidence: The land was
occupied from 1871 to 1876 by a man named Porter. In the fall of the latter year he sold it to
one Dinsmore, who shortly afterwards transferred it to James Ryan. From 1876 to 1917 it was
occupied every summer by Ryan and his family, and was known as the Ryan possessory
claim. In 1917 the Ryans conveyed it by deed to the Frank Ranch and Cattle Company. On
the 19th of December, 1921, the Frank Ranch and Cattle Company was duly adjudged a
bankrupt. After due proceedings in the bankruptcy court, the land and improvements thereon
were, by deed dated May 2, 1922, conveyed by the trustee in bankruptcy to the Fallon Land
and Stock Company, a corporation. By deed dated July 11, 1923, the Fallon Land and Stock
Company conveyed the property to plaintiffs herein. On or about August 2, 1923, E.B.
Cornell, one of the plaintiffs, made demand of defendants for the possession of the premises,
which was refused. The various acts of dominion over the land showed actual possession of it
by Porter, Ryan, and Frank Ranch and Cattle Company.
1. Counsel for defendant concedes that they were respectively in actual possession of the
land, but contends that, prior to the Frank Ranch and Cattle Company's being adjudged a
bankrupt, it surrendered possession to defendant, and that he ever since has been in the lawful
possession as found by the court. It is claimed that the uncontradicted evidence supports this
contention. The evidence relied on is furnished by the testimony of the defendant, his wife,
and his brother, H.D. Gobin. It is not contended that the Frank Ranch and Cattle Company
made the surrender in writing. The defendant testified that he received no deed for the
property from the Frank Ranch and Cattle Company. In this connection counsel for plaintiffs
seeks to raise the question of the statute of frauds, and insists that we should on this ground
reverse the case and direct the lower court to enter a judgment for plaintiffs.
49 Nev. 101, 105 (1925) Cornell v. Gobin
should on this ground reverse the case and direct the lower court to enter a judgment for
plaintiffs. But, so far as the record discloses, the plaintiffs made no objection on this ground
to the evidence of the defendant touching the manner in which he claims to have acquired the
property from the Frank Ranch and Cattle Company. The statute of frauds cannot be raised
for the first time on appeal. The objection must first be taken in some appropriate way in the
court below; otherwise it will be deemed to have been waived. 25 R.C.L. p. 743, and cases
cited in note 17; Bommer v. American S.B.H. Mfg. Co., 81 N.Y. 468. We are of the opinion,
however, that the evidence does not establish a parol surrender of the property by the Frank
Ranch and Cattle Company to the defendant, or any abandonment, as is also claimed.
Substantially stated, the evidence of the defendant in the regard is as follows: H.D. Gobin
was foreman of the Frank Ranch and Cattle Company, and as such had supervision of its
several ranches, including the land in question, from December, 1917, to November, 1920.
Defendant, who entered the employ of the company as a ranch hand in February, 1919,
succeeded his brother as foreman when the latter resigned in December, 1920. He continued
to act as such foreman for the company and for the trustee in bankruptcy until the 15th or
16th of January, 1922. He moved onto the land in February, 1922. In his testimony he says
that some time in the summer of 1920 he went to the office of Louis Cohn in Reno and filed
on the land; that one Sam Frank went with him and was present when he filed on the land;
that the latter advised him to file on it. A short time afterwards, when the defendant went to
the Fallon ranch belonging to the company, Frank had a surveyor there for him, and his
brother took defendant and the surveyor to the place and waited while it was surveyed. This
was done with the consent and approval of Frank. Later, when the defendant was going to
Fallon for a bunch of cattle, he met Frank on the road. Frank had defendant's filing paper
and leave of absence for him to sign.
49 Nev. 101, 106 (1925) Cornell v. Gobin
defendant's filing paper and leave of absence for him to sign. Defendant signed them, and
Frank took them to a place called Ione and mailed them. Defendant's brother, H.D. Gobin,
testified that he had had a talk with Frank concerning the place, and that Frank wanted him to
file on the land and take it up. He said he did not want it. He had talked with Frank about his
brother taking the place, and knew of his own knowledge that he was there with Frank's
consent. He heard the latter say that he had turned all of the company's interest to the
defendant. He testified that his brother started in to reside on the place in February, 1922. The
defendant's wife testified that they established their residence on the place in February, 1922.
He had a chance to make a home there, she said, and get a homestead, and Sam Frank said
he could have it, and why not take it? She testified that she heard a conversation over the
telephone between her husband and Frank, in which the former said he could not stay very
much longer because his leave of absence was up, and if Frank wanted him to run his cattle
for him he would have to put a man over there for him in his place. Frank agreed to put a man
there and pay his wages. In this connection, the defendant testified that the company put a
man on the place by the name of Snell, and paid his wages, with the understanding that the
company was to get the hay and use of the pasture for the pay of the man. Defendant paid
Snell his wages by check, which he wrote for the company. It appears from the testimony of
Snell, who was a witness for the plaintiff, that defendant, as foreman, employed him to work
for the company. Percy [defendant] employed me and paid me with a Frank Ranch and
Cattle Company check; this is as far as I know, he said. Snell went to work on the land in
question on the 6th day of February, 1921, and remained there until October or November of
the same year. His work consisted of fixing fences, irrigating, and putting up hay. According
to defendant's version, while Snell was paid by him with company checks, he was working
for him on the place, under the arrangements previously stated.
49 Nev. 101, 107 (1925) Cornell v. Gobin
2. It is apparent that the defendant's claim of a surrender by the Frank Ranch and Cattle
Company is based entirely on transactions with Sam Frank, to the effect that defendant filed
on it and assumed possession of it in his own right, with the consent and approval of Frank.
On cross-examination, he stated: Mr. Frank told me that he couldn't hold it any longer, and
to file on it, and he would give me his interest; that is, the company's interest. The evidence
does not show any surrender by the company. The most it shows is an attempt on the part of
Frank to surrender the company's possession and right of possession to the defendant. But
there is no evidence to show that Frank had any authority to bind the company in a
transaction which would divest it of its possessory right to the land in question, and vest it in
another. It is not disclosed what connection Frank had with the company. Nor is there any
evidence to show that the company, with knowledge of the facts, ratified the transaction.
In this regard the defendant testified that Mr. Turritin, who, it is stated, was manager or
president of the company, wrote him a letter in July, 1921, to the following effect: He said
that he had come over to see how me and my homestead was getting along. There is nothing
in the contents of the letter to indicate that Turritin sanctioned Frank's acts or recognized
defendant's claim to the land. That he had come over to see about it is about all that can be
extracted from the statement attributed to him.
3. The Frank Ranch and Cattle Company having become a voluntary bankrupt, and the
trustee in bankruptcy having sold the property to the Fallon Land and Stock Company under
an order of court, we must presume that the Frank Ranch and Cattle Company listed the
property among its assets. This presumption bears strongly against the claim that Sam Frank
was authorized by the Frank Ranch and Cattle Company to surrender the property to
defendant.
The defendant also claims that the land was abandoned by the company. What we have
said as to the failure of proof as to a surrender by the company to the defendant applies
equally to the claim of abandonment.
49 Nev. 101, 108 (1925) Cornell v. Gobin
defendant applies equally to the claim of abandonment. As stated in Mallet v. Uncle Sam
Mining Co., 1 Nev. 188, 90 Am. Dec. 484:
In determining whether one has abandoned his property or rights, the intention is the first
and paramount object of the inquiry; for there can be no strict abandonment of property
without the intention to do so.
See, also, Goldfield Con. v. O.S.A. Co., 38 Nev. 426, 150 P. 313.
4. There is no evidence in this case tending to show that the company intended to abandon
the land.
It appears from the testimony that one Dodge, foreman for the Fallon Land and Stock
Company, loaned defendant a team and wagon to move his belongings to the land and also
offered to purchase the land from him, and it is urged that recognition of defendant's claim of
ownership is thus shown. We do not see how the acts of the foreman could amount to a
recognition by the company of the lawfulness of defendant's possession, or affect in any way
the Fallon Company's right of possession. The loaning of the team and wagon is of no
consequence, and the offer to buy does not appear to have proceeded from any authority given
to the foreman by the corporation.
5-7. The evidence shows that the Frank Ranch and Cattle Company was in the actual
possession of the property at the time of defendant's entry, and it does not appear that any
transfer of the right of possession was made to him by the company. Defendant's possession
was therefore, so far as the record shows, unlawful against the company and its successor in
interest, including the plaintiffs. The plaintiffs, having proved their right of possession
through the chain of title stated, were, under the facts, entitled to a judgment for the
possession of the premises. Where no legal title is shown in either party, the party showing
prior possession in himself or those through whom he claims will be held to have the better
right. 15 Cyc. 30; 9 R.C.L. 850. The fact that the plaintiff's immediate grantor, the Fallon
Land and Stock Company, was never in the actual possession of the land, does not affect their
right to recover in this action.
49 Nev. 101, 109 (1925) Cornell v. Gobin
recover in this action. In an action in ejectment, a prima facie case is established by plaintiff
when he proves prior possession in some one of his grantors in his chain of title. 19 C.J. pp.
1055, 1056; Florida Southern R. Co. v. Loring, 51 F. 932, 2 C.C.A. 546. The plaintiffs
proved prior possession in the Frank Ranch and Cattle Company and its successor in interest,
the trustee in bankruptcy, from whom they deraign title through the Fallon Land and Stock
Company.
8. Counsel for defendant contends also that the Fallon Land and Stock Company, being a
corporation, could not take or hold possession of land, the title of which was in the United
States government, and therefore could convey no right of possession to plaintiffs. This is a
question which the defendant could not raise. It is open only to the government. Tidwell v.
Chiricahua Cattle Co., 5 Ariz. 352, 53 P. 192, and cases cited.
The judgment is reversed, and the case remanded.
Coleman, C. J.: I concur.
Sanders, J. (concurring):
This court, the court below, and counsel on both sides characterize this controversy as
being an action in ejectment. The action is a possessory one to recover the possession of 80
acres of public land, but it is not and cannot be an action in ejectment under our practice.
While it is usual to speak of the action to recover the possession of real property as an action
of ejectment, yet technically and substantially there is no action of ejectment in Nevada. In
Alford v. Dewin, 1 Nev. 207, decided in 1865, it is said, We have in our practice no action
of ejectment, and in the course of the opinion the court stated:
Our action is one which may be brought merely to establish the right of possession as
against defendant, or it may be one in which the ultimate right to the property is to be
determined, therefore all the old common law rules are inapplicable.
Since we have in our practice no action of ejectment, I cannot say that plaintiffs were not
prejudiced by the court's applying to their cause of action rules applicable in an action of
ejectment.
49 Nev. 101, 110 (1925) Cornell v. Gobin
in an action of ejectment. As for example, the court was of opinion that the plaintiffs had not
established their cause of action, because they were not in the actual possession of the
property, and ignored their proof tending to show right to possession which was the vital
point to be determined. Whatever be the nature of the action, the plaintiffs' deed and title
papers in evidence showed from whence they derived their right of possession and their
ownership of the improvements and water right appurtenant to the land. Brown v. Killabrew,
21 Nev. 437, 33 P. 865.
I shall not comment upon the defendant's evidence, but I apprehend that the defendant
under the circumstances will have difficulty in curing the defect in his evidence pointed out in
the opinion of Justice Ducker for which a new trial is granted.
____________
49 Nev. 110, 110 (1925) Ex Parte Taylor
EX PARTE TAYLOR
No. 2703
September 12, 1925. 238 P. 998.
1. LarcenyInformation Held Insufficient to Charge Grand Larceny.
An information, charging the larceny of two checks in the sum of $100 and $30 in cash, does not
properly state the offense of grand larceny, as defined by Rev. Laws, sec. 6638, notwithstanding the
provisions of section 6645, not being a sufficient allegation of value.
2. Habeas CorpusPetitioner Will Be Discharged on Habeas Corpus, where Petition Shows
Lack of Jurisdiction of Court.
The law is more liberal in sustaining pleadings after judgment, than when they are attacked by
demurrer before judgment, but where petition shows lack of jurisdiction in the trial court to render
judgment, the petition will be discharged on habeas corpus.
See (1) 36 C.J. sec. 301, p. 826, n. 80 (new); sec. 304, p. 827, n. 12; 31 C.J. sec. 238, p. 693, n. 16; (2) 29 C.J.
sec. 34, p. 41, n. 29; p. 43, n. 38.
Application of Ryland G. Taylor for a writ of habeas corpus for Torevio Matillas Arbaya,
alias Torevio Matillas, to be directed to Denver S.
49 Nev. 110, 111 (1925) Ex Parte Taylor
Matillas, to be directed to Denver S. Dickerson, Warden of the State Penitentiary. Petitioner
discharged.
Ryland G. Taylor, for Petitioner:
Information fails to allege value of property was over fifty dollars; fails to allege
ownership, or that property was not that of defendant, all necessary allegations to charge
grand larceny. 17 R.C.L. 59; 22 Cyc. 353.
Indictment must allege necessary facts affirmatively, not by implication. State v. Dooley,
64 Mo. 146.
Kind, quality, number, or value of property must be alleged when they enter into nature of
offense. People v. Highbee, 66 Bard. 131.
Indictment must identify offense so as to inform defendant and support plea of jeopardy.
Merwin v. People, 12 Am. Rep. 314.
Bank bills or notes should be described as money. Jackson v. State, 29 S.W. 265.
M.A. Diskin, Attorney-General, and Thos. E. Powell, Deputy Attorney-General, for
Respondent:
It is not necessary in charging larceny of checks to allege actual value, but it is necessary
only to allege amount that might be collected thereon. Rev. Laws, 6645.
In indictment for larceny of valuable paper it is sufficient to allege larceny of bank notes,
valuable securities, etc., without specifying the coin, number, denomination or kind thereof.
Rev. Laws, 7068; State v. Bogris, 144 p. 791.
Many technicalities of criminal pleading which exist in other states are abolished by Rev.
Laws 7050 and 7059, providing if offense is set out with sufficient clearness to enable person
of common understanding to know what is intended, it is sufficient. Defendant understood
and entered plea of guilty. He could have withdrawn plea any time before judgment and
demurred to complaint. After judgment, law is much more liberal in sustaining pleadings.
Judgment is presumed to be correct until reversed and cannot be attacked collaterally. Ex
Parte Winston, 9 Nev. 71; Ex Parte Edington, 10 Nev. 217; Knewel v. Egan, U.S. (May 25,
1925).
49 Nev. 110, 112 (1925) Ex Parte Taylor
OPINION
By the Court, Ducker, J.:
This is an application for a writ of habeas corpus. It is claimed that petitioner is unlawfully
imprisoned, detained, confined, and restrained of his liberty by Denver S. Dickerson, the
warden of the Nevada state penitentiary. He shows in his petition that on the 5th day of
March the district attorney of Nye County, State of Nevada, filed an information against him
in the district court of Nye County; that thereafter and before judgment was pronounced
against him he moved the court to arrest judgment in the said cause; but on the 19th day of
March, 1925, the said motion was denied, and the petitioner was sentenced to a term of from
2 to 14 years in the state penitentiary.
It is alleged that the judgment and sentence are null and void and beyond the jurisdiction
of the court for the reason that the information does not state facts sufficient to support the
judgment pronounced, or any judgment at all. A copy of the information is annexed to the
petition, the charging part of which is as follows:
That he, the said Torevio Arbaya, alias Torevio Matillas, on or about the 28th day of
February, 1925, and before the filing of this information, did then and there in the town of
Tonopah, Nye County, State of Nevada, unlawfully, willfully, knowingly, and feloniously
steal, take, and carry away two checks in the sum of one hundred ($100) dollars, and thirty
($30) dollars in cash from one Simon Valenzuelo, in whose possession the said checks and
money had been placed and who had the lawful possession and custody of the said money on
the said 28th day of February, 1925; that he, the said Torevio Arbaya, alias Torevio Matillas,
did take, steal, and carry away the same with the intent then and there to deprive the lawful
owner of the possession and use of said checks and money, and to appropriate the same to his
own use and benefit.
1. The reasons stated in the opinion why the information does not support the judgment,
are: First, that it does not state facts sufficient to constitute the offense of grand larceny,
in that the value of the property is not alleged to be over $50; and, second, that it does
not allege the ownership of the property, or that the property did not belong to the
petitioner.
49 Nev. 110, 113 (1925) Ex Parte Taylor
it does not state facts sufficient to constitute the offense of grand larceny, in that the value of
the property is not alleged to be over $50; and, second, that it does not allege the ownership
of the property, or that the property did not belong to the petitioner. We think the information
fails to state the offense of grand larceny as claimed by the petitioner. Section 6638 of the
Revised Laws provides in part as follows:
Every person who shall feloniously steal, take, and carry away, lead or drive away, the
personal goods or property of another, of the value of $50 or more, shall be deemed guilty of
grand larceny. * * *
By the force of this statute the value of the property as being $50 or more constitutes an
essential element of grand larceny. An information which omits an essential element of the
offense sought to be charged is fatally defective. It is not alleged in the information shown
above that the checks mentioned are of any value, nor is there any language therein from
which their value appears as a necessary implication. The information simply states that the
defendant did steal, take, and carry away two checks in the sum of one hundred ($100)
dollars. The state's attorneys refer us to section 6645 of the Revised Laws and contend that
by force of that statute it is not necessary in charging the larceny of checks to allege the actual
value of the checks, but it is only necessary to allege the amount of the checks, the money due
thereon, or which in any event or contingency might be collected thereon. Omitting most of
the instruments named, the statute reads:
* * * Checks, * * * shall be considered personal goods, of which larceny may be
committed, and the money due thereon, or secured thereby and remaining unsatisfied, or
which, in any event or contingency, might be collected thereon, or the value of the property
transferred or affected thereby as the case may be, shall be deemed the value of the article
stolen. Section 6645, Rev. Laws.
This statute, which is common to a number of states, simply designates certain instruments
as the subjects of larceny and establishes a rule of evidence, whereby the value of the
check or other instrument stolen may be determined on the trial of the case.
49 Nev. 110, 114 (1925) Ex Parte Taylor
of larceny and establishes a rule of evidence, whereby the value of the check or other
instrument stolen may be determined on the trial of the case. It constitutes no part of the
description of the offense of larceny, and does not dispense with the necessity of alleging the
value of the property stolen.
It has been held under a similar statute that where an indictment charges the larceny of
bank notes in a certain sum secured and payable by and upon the said bank notes, being then
and there due and unsatisfied, that such an allegation constitutes its value, and a separate
averment of value need not be made. Adams v. Commonwealth, 23 Grat. (64 Va.) 949.
In the information before us, none of the means of proof of value prescribed by the statute
are alleged. Merely the amount of the checks is stated. A description of the checks, as being
of a certain amount, is not tantamount to an averment of value. Wilson v. State, 1 Port. (Ala.)
118. So far as appears from the information the checks may have been spurious, paid, or had
never acquired validity.
2. It is urged that the law is more liberal in sustaining pleadings in criminal cases after
judgment than if the pleading has been attacked by demurrer before judgment. This is true,
but where, as in this case, the petition shows a want of jurisdiction in the court to render the
judgment, the petitioner will be discharged on habeas corpus.
It is so ordered.
____________
49 Nev. 115, 115 (1925) Northern Nevada Loan Ass'n v. Cazier
NORTHERN NEVADA LOAN ASSOCIATION v.
CAZIER
No. 2708
October 5, 1925. 239 P. 395.
On Motion To Dismiss Appeal
1. Appeal and ErrorCourt's Order, Directing payment of Sums Out of Estate in Receiver's
Hands, Held Appealable.
A court order, directing payment by receiver of funds out of estate in his hands, held not subject to
further action of court, either by decree or subsequent order, and therefore appealable under Rev. Laws,
secs. 5327, and 5329 as amended by Stats. 1913, c. 91.
2. Appeal and ErrorReceiver Entitled to Appeal from Order of Court, where Proceeding
Adversary, in which Receiver Was Representative of Creditors and All Persons Having
Interest in Property.
Where persons intervened in case to obtain relief against receiver not obtainable in any other form,
and issues raised by pleadings made proceeding an adversary one, in which receiver was representative of
creditor and all persons having interest in property, receiver was entitled to appeal from order of court
made in such proceeding.
3. Appeal and ErrorReceiver May Appeal from Any Order Affecting Proper Duties or
Personal Rights, or where Estate as Whole Is Interested.
Receiver may appeal from any order affecting proper duties or personal rights, or where estate as
whole is interested.
See 3 C.J. sec. 413, p. 579, n. 76; sec. 522, p. 654, n. 10 (new), 13, 23 (new).
Appeal from Fourth Judicial District Court, Elko County; J.M. McNamara, Judge.
Action by the War Finance Corporation and others against the John H. Cazier & Sons
Company and another, wherein the Northern Nevada Loan Association was substituted as
party plaintiff for the Finance Corporation. From orders directing H.J. Lorentzen, as receiver,
to pay each of defendants out of funds in his hands sums specified, and order denying
plaintiffs' motion for new trial, plaintiffs appeal. On motion to dismiss appeal. Motion
denied. Appeal dismissed by stipulation.
Badt & Dysart, for Respondents, movants herein:
If order directing receiver to pay bills is not appealable order, it cannot be made such by
moving for new trial, to end that appeal may be taken from order denying such motion.
49 Nev. 115, 116 (1925) Northern Nevada Loan Ass'n v. Cazier
trial, to end that appeal may be taken from order denying such motion. If order is appealable,
appeal must be taken from it and not from subsequent order refusing to vacate that order.
Harper v. Hildreth, 33 P. 1103.
Orders made in district court are not appealable unless expressly made so by statute. Peters
v. Jones, 66 P. (Nev.) 745; Rev. Laws, 5329, as amended, 3 Rev. Laws, 3340.
We frankly submit our motion to dismiss appeal under authority of Title Ins. & Tr. Co. v.
California Development Co., 114 P. 838, holding that question involved was one partly of
convenience and policy; that receivership property is best protected by permitting trial court,
pending final hearing, to direct receiver in disposition of funds, without being hampered by
successive appeals from separate orders; that interlocutory orders in equity are subject to
direct appeal only when such appeal is authorized by statute; and, where original judgment or
order is not reviewable on appeal it cannot be made reviewable by device of moving to set it
aside and appealing from order denying motion.
Thatcher & Woodburn and Thos. H. Brandon, for Appellant:
Title Ins. & Tr. Co. case is not controlling as decision clearly points out. In that case motion
was made to vacate order appointing receiver, which was denied, and appeal was taken.
Original order was purely interlocutory and not in any sense final. In this case respondents
appeal from decision refusing petition in foreclosure proceeding for order requiring payment
of bills which receiver had refused to pay, which petition respondents filed instead of
commencing suit against receiver. In case cited court said that where order required payment
of money by party complaining, or doing of act by or against him, order is final as against him
and is appealable, but if order be such as to be subject before enforcement to further action of
court, either by decree or subsequent order, it is not final. State v. District Court, 72 P. 612;
Martin v. Kirby, 34 Nev. 205. Proceeding here was collateral ancillary matter.
49 Nev. 115, 117 (1925) Northern Nevada Loan Ass'n v. Cazier
Proceeding here was collateral ancillary matter. Order is not unappealable because of
pendency of undetermined matters, whether ancillary or collateral. Mica Co. v. Mining Co.,
157 Fed. 92.
Orders allowing compensation and expenses of receiver, if interlocutory, are not
appealable, but where final and direct payment of funds in hands of receiver, they are
appealable. 3 C.J. 580.
OPINION
By the Court, Sanders, J.:
This is a motion to dismiss the appeals taken from two orders of the court below. The two
appeals are embraced in the one notice. One is from an order directing H. J. Lorentzen as
receiver to pay to each respondent out of any funds in his hands the sums specified therein,
which aggregate $7,202.49; the other is from an order denying appellants' motion for new
trial.
The motion came on for hearing on September 8, 1925, and on that date was orally argued
and submitted for decision upon briefs. In the notice of motion it is stated that the motion will
be made and based on the various papers, files, documents, and pleadings appearing in the
bill of exceptions or record on appeal, and upon the ground that the order directing the
receiver to pay the sums specified is not an appealable order, nor is the order denying a new
trial appealable.
1. It is argued on behalf of respondents that, if the court's order directing the receiver to
pay the sums specified out of any funds in his hands is not an appealable order, it cannot be
made so by an attempt to appeal from a subsequent order denying the motion for new trial.
This contention narrows the question for determination to whether an order made in a
proceeding against a receiver is appealable under Revised Laws, section 5327, and section
5329 as amended by statute 1913, chapter 91. Section 5327 provides that any party aggrieved
may appeal in the cases prescribed in the title. Section 5329 provides, in part, that an appeal
may be taken from a final judgment in an action or special proceeding commenced in the
court in which the judgment is rendered, within six months after the rendition of the
judgment.
49 Nev. 115, 118 (1925) Northern Nevada Loan Ass'n v. Cazier
be taken from a final judgment in an action or special proceeding commenced in the court in
which the judgment is rendered, within six months after the rendition of the judgment.
We are relieved of the necessity of construing the provisions contained in these sections,
because of the fact that counsel for respondents frankly state that their motion to dismiss rests
entirely upon the authority of the case of Title Insurance and Trust Co. v. California
Development Co., 159 Cal. 484, 114 P. 838. If that decision is to be considered controlling
upon this court, then we are of the opinion that the order here complained of is a final order.
In the syllabus of the case, it is stated:
If an order complained of either directs the immediate payment of money by the
complaining party or orders acts to be done directly by or against him, it is appealable; but if
the order be such in its nature as to be subject to the further action of the court either by
decree or subsequent order, the order complained of is not final, and review must be sought
by appeal from such decree or order subsequently entered.
It is manifest from the order here under review that it directs the immediate payment of
money out of funds of the estate in the hands of the receiver, and it is not subject to the
further action of the court either by decree or subsequent order, and under the very authority
upon which counsel base their motion to dismiss it is a final order and, therefore, appealable
under the statute.
2. While it is true that the receiver is an arm of the court in the administration of the
property, yet, where persons intervene, as did the respondents in this case, to obtain relief
against him, not obtainable in any other forum, the issues raised by the joint answer of
appellants to the respondents' petition made the proceeding an adversary one, in which the
receiver was the representative of creditors and all persons having an interest in the property.
If, as such representative, he felt aggrieved by the order made in an adversary proceeding of
this character, it is difficult to see why he should not be permitted to have the order
reviewed by this tribunal to which respondents may have resorted in the event the order
had been adverse to them.
49 Nev. 115, 119 (1925) Northern Nevada Loan Ass'n v. Cazier
not be permitted to have the order reviewed by this tribunal to which respondents may have
resorted in the event the order had been adverse to them. Felton v. Ackerman, 61 F. 226, 9
C.C.A. 457. We take it that the very purpose of the prayer of respondents' petition for an
order of the court that the receiver show cause why the prayer of the petition should not be
granted was to bring the receiver before the court as a party defendant that he might urge any
defensive matter to the petition which the creditors or other persons interested could urge, if
themselves made parties defendant. Kahn v. Hollis, 124 Ga. 537, 53 S.E. 95.
3. If the receiver had an appealable interest in the subject of the order, a question not
involved on this motion, it was his duty to appeal from the adverse judgment rendered in a
judicial proceeding tried as an ordinary adverse civil action. A receiver may appeal from any
order affecting his proper duties or personal rights, or where the estate as a whole is
interested. Esmeralda County v. Wildes, 36 Nev. 526, 137 P. 400.
It is suggested in argument that a receiver cannot appeal from purely administrative orders
which the court, in the exercise of its discretion, may make in the cause for the proper care
and preservation of the property in its custody. Ordinarily this is true, but the order here
complained of is not made to rest on the court's discretion and, therefore, is not within the
rule invoked.
Without reviewing the facts or discussing the merits of the appeals, or intimating any
opinion thereon, we conclude that the orders entered in the court below are appealable and the
motion to dismiss the appeals therefrom is, therefore, denied.
January 4, 1926.
Appeal dismissed by stipulation.
____________
49 Nev. 120, 120 (1925) Siebert v. Smith
SIEBERT v. SMITH
No. 2671
October 5, 1925. 239 P. 396.
1. CourtsRecovery on Quantum Meruit Not Precluded by Sustaining Demurrer to Cause of
Action for Breach of Contract.
That sustaining of demurrer to cause of action for breach of employment contract established as law
of case that contract was too indefinite and uncertain to be enforced did not preclude recovery on second
cause of action for services rendered thereunder on quantum meruit, and court erred in excluding
evidence of value of such services.
See 15 C.J. sec. 359, p. 962, n. 39; 40 Cyc. p. 2825, n. 14.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by Fred J. Siebert against E.C. Smith. Judgment for defendant and plaintiff appeals.
Reversed. Rehearing denied.
John D. Hoyt, for Appellant:
Though contract be unenforceable for indefiniteness, either party furnishing goods or
money, or performing services under such contract, may recover reasonable value thereof.
Promise to pay reasonable value is implied. 1 Page on Contracts, 155; Washington Co. v.
Moss, 96 Atl. 273; 6 R.C.L. 590.
Wm. M. Kearney, for Respondent:
Plaintiff cannot hope to win on quantum meruit when he already agreed upon value of his
alleged services. Failure to obtain what he claims he agreed to take was due entirely to his
lack of diligence. Having failed to obtain stock on demand prior to three years from date of
alleged contract he now seeks to have court make new contract for him and fasten new
liability on defendant. One cannot recover on quantum meruit when he declares on express
contract. Rubino v. Scott, 22 N.E. 1103; Swarthout v. Lucas, 60 N.W. 306.
It is error to admit evidence of value of services shown to have been furnished under
contract. Flading v. Dawson, 43 P. 1107.
49 Nev. 120, 121 (1925) Siebert v. Smith
If proof shows special contract for stipulated price, action on implied contract to recover
reasonable value shows fatal variance. Bradley v. Harter, 60 N.E. 139.
If agreement is to be carried out by defendant in some other way than by payment of
money, general rule is that it must be declared on specially. Nubent v. Teachout, 35 N.W.
254.
OPINION
By the Court, Coleman, C. J.:
This is an action to recover judgment in the sum of $650. The complaint contains two
causes of action. The first cause of action is upon an alleged breach of contract. The second
cause of action is on quantum meruit for services rendered. The defendant demurred to the
two causes of action separately and to the complaint as a whole, urging as to the first cause of
action that the contract alleged was too indefinite and uncertain to be enforceable, and hence
it failed to state facts sufficient to constitute a cause of action.
The court sustained the demurrer to the first cause of action, but overruled it as to the
second cause of action and to the complaint as a whole.
The case was tried to the court upon the second cause of action. Upon the trial the plaintiff
gave testimony establishing the agreement pleaded in the first cause of action, supplementing
such testimony with testimony showing that he had rendered the services alleged to have been
agreed upon to be performed by him. Plaintiff then offered testimony to establish the value of
the services claimed to have been rendered. This line of testimony was objected to by counsel
for the defendant upon the ground that the plaintiff had by his evidence established a contract
and that he could not recover upon the quantum meruit. The court sustained the objection,
whereupon the plaintiff rested his case. The defendant moved for a nonsuit, which was
granted, and judgment was entered thereupon in favor of defendant. Plaintiff has appealed.
49 Nev. 120, 122 (1925) Siebert v. Smith
It being the law of the case, pursuant to the ruling on the demurrer, that the contract was
too indefinite and uncertain to be enforceable, we think the court erred in sustaining the
objection to the tendered testimony offered to prove the value of the services. Under the
evidence given the defendant had received the benefit of the services of the plaintiff as a
mining engineer. The mere fact that the contract is too indefinite and uncertain to be enforced
should not preclude a recovery upon quantum meruit. Upon what theory of law, ethics,
morality, or good conscience should the defendant be permitted to receive the services of the
plaintiff under an enforceable contract, and then say that merely because the contract is too
indefinite to be enforced that he can reap the benefit of plaintiff's labor without paying for it?
We cannot give our approval to such a contention.
In the case of Washington, B. & A.R. Co. v. Moss, 127 Md. 12, 96 A. 273, where this
question was before the court, it was said:
Although we have found it necessary to declare the contract sued upon invalid for the
purpose of sustaining an action, yet, nevertheless, we are strongly of the opinion that, if the
facts are as testified to by the appellee and his witnesses, the appellee is not without a remedy.
If he were, it would be a sad reproach upon the law. Still, of course, assuming the truth of the
facts as established by the appellee, we have on one hand a man giving his efforts and time in
securing a thing of value for another in addition to giving up that which may have had value
to him, with the expectation of full compensation for his efforts and sacrifices, and, on the
other hand, a party, freely accepting and enjoying these, but unwilling to pay therefor.
The rule is stated in 6 R.C.L. 590, as follows:
The mere fact that the parties have attempted to make an express contract but have not
succeeded in making it enforceable with respect to some of its terms does not prevent the
implication of a promise to pay for benefits conferred thereunder. The generally recognized
doctrine is that it does not follow from the fact that a contract is invalid because the
minds of the parties did not meet as to some of the essential terms thereof, either
because of a mutual mistake or uncertainty therein, that a party thereto who furnishes
material or renders services to the other party, relying upon the terms as he understood
them, is without a remedy.
49 Nev. 120, 123 (1925) Siebert v. Smith
doctrine is that it does not follow from the fact that a contract is invalid because the minds of
the parties did not meet as to some of the essential terms thereof, either because of a mutual
mistake or uncertainty therein, that a party thereto who furnishes material or renders services
to the other party, relying upon the terms as he understood them, is without a remedy. In such
case a promise to pay the reasonable value of the materials or services is implied.
In Lapham v. Osborne, 20 Nev. 168, 18 P. 881, it is said:
It is well settled that for labor and services performed under a contract declared void by
the statute of frauds recovery on quantum meruit may be had.
See, also, Harwood v. Carter, 47 Nev. 334, 222 P. 280.
The rule stated is approved by an overwhelming weight of authority. Clark on Contracts
(3d ed.), p. 650; 1 Page on Contracts, sec. 107; Vickery v. Ritchie, 202 Mass. 247, 88 N.E.
835, 26 L.R.A. (N.S.) 810, and extensive notes.
For the error pointed out, it is ordered that the judgment be reversed.
____________
49 Nev. 124, 124 (1925) Su Lee v. Peck
SU LEE v. PECK
No. 2686
November 5, 1925. 240 P. 435.
1. WitnessTestimony of Members of Chinese Society as to Statements of Deceased Donor
of Property in Question Held Admissible.
In action to quiet title, brought on behalf of a Chinese religious society, where members of society
testified as to statements made by deceased donor of property to society, held that witnesses' interest was
not of a nature rendering them incompetent at common law, and hence were not within purview of
exception in Rev. Laws, sec. 5419, that no persons shall be allowed to testify when other party to
transaction is dead.
2. WitnessesParties Suing on Behalf of Society to which They Belonged Not Liable for
Costs, and Not Incompetent Under Statute to Testify as to Deceased's Statements.
In an action to quiet title, brought by plaintiffs on behalf of Chinese religious society, under Rev.
Laws, sec. 5001, held that Chinese society was real party in interest, and plaintiffs were nominal parties
only, were not liable for costs in view of section 5385, and hence having no interest in action were not
incompetent under section 5419 to testify as to alleged statements made by deceased donor as to property
in question.
3. GiftsEvidence of Witnesses Sufficient to Prove Gift of Property to Chinese Religious
Society.
In an action to quiet title, where plaintiffs bringing action on behalf of Chinese religious society
claimed property by reason of gift from former owner, held evidence of Chinese witnesses was sufficient
to prove such gift of property to the society.
4. GiftsPayment of Taxes by Record Owner Did Not Conclusively Refute Plaintiffs' Claim
of Gift to Property, or Overthrow Clear and Satisfactory Proof Thereof.
In an action to quiet title, brought on behalf of Chinese religious society, where plaintiffs claimed
property in question had been given to them by former owner, held payment of taxes by record owner did
not conclusively refute plaintiffs' claim of gift or overthrow clear and satisfactory proof of such gift.
5. GiftsChinese Religious Society Not Required to Pay Taxes on Property Used for
Religious Worship, and Nonpayment Thereof Did Not Militate against Their Claim of
Gift.
In an action to quiet title brought on behalf of Chinese religious society, the fact that such society did
not pay taxes did not militate against their claim that property had been given to them by gift, inasmuch
as under Rev. Laws, sec. 3621, the property was exempt from taxation.
6. GiftsGift Cannot Be Proved by Evidence of Equivocal Nature, but Such Evidence Must
Be Clear and Convincing.
The gift of property cannot be proved by evidence of an equivocal nature, but such evidence must be
clear and convincing.
49 Nev. 124, 125 (1925) Su Lee v. Peck
7. GiftsEvidence Held Insufficient to Show Gift to Donee by Cotenant of Donor.
In an action to quiet title, brought on behalf of Chinese society, where plaintiff claimed property by
reason of gift from one M., held that evidence, though sufficient to show gift of entire premises from M.,
was insufficient to show gift from M.'s cotenant to plaintiff.
8. Adverse PossessionTenancy in CommonDonee of Land, Entering Into Possession under Gift from One
Cotenant Claiming Entire Property, Held to Have Acquired Title by Adverse Possession.
Where Chinese society entered into possession of property under gift of entire plot from one cotenant
and claimed property as its own, openly and notoriously, this amounted to a disseizin of the other
cotenant, and constituted an adverse holding, ripening into title by adverse possession on expiration of
statutory period.
9. Adverse PossessionCotenant Out of Possession, Aware of Possession by Stranger Making Improvements
Thereon, Charged with Notice of Hostile Intent of Such Possession.
Where cotenant out of possession was aware that stranger was in actual and exclusive possession of
entire premises, making valuable improvement thereon, held that was sufficient notice to put him on
inquiry, and he was charged with notice of hostile intent of such possessor, inasmuch as he would have
discovered such possession was one under claim of right under gift from other cotenant if he had
inquired.
10. Adverse PossessionPayment of Taxes by Adverse Claimant Not Essential Element of
Adverse Possession where Claimant a Religious Corporation, and Payment of Taxes
Had Not Become a Statutory Requirement.
Payment of taxes by an adverse claimant held not an essential element of adverse possession where
property was used for religious purposes, and, at the time the disseizin took place, the statutory
requirement of payment of taxes had not become an element of adverse possession.
See (1, 2) 40 Cyc. p. 2245, n. 96; p. 2249, n. 18; p. 2277, n. 39, 41; p. 2281, n. 70; p. 2282, n. 77; p. 2291, n. 32;
(3, 4, 5, 6, 7) 28 C.J. sec. 19, p. 627, n. 34; p. 628, n. 35; sec. 82, p. 676, n. 33; sec. 84, p. 680, n. 70, 82;
(8) 38 Cyc. p. 34, n. 16; p. 35, n. 17; p. 77, n. 71; 37 Cyc. p. 940, n. 85; p. 942, n. 94; 2 C.J. sec. 59, p.
77, n. 71; sec. 355, p. 185, n. 50; sec. 417, p. 205, n. 23 (new).
Appeal from Second Judicial District Court, Washoe County; Geo A. Barlett, Judge.
Action to quiet title by Su Lee and Charlie Bi Yen, suing for themselves and others, as
members and on behalf of the Lin Hing Gungsha, or Joss House Society, of Reno, Nevada,
against F. J. Peck and others.
49 Nev. 124, 126 (1925) Su Lee v. Peck
of Reno, Nevada, against F. J. Peck and others. From a judgment for plaintiffs, defendants
appeal. Affirmed. Rehearing denied.
Cooke, French & Stoddard, for Appellants:
Evidence of unmistakable intention of donor to make gift is essential requisite of gift inter
vivos. 28 C.J. 625, 627, 628, 676, 678.
Ordinarily neither tenant in common can bind other unless his act is previously authorized
or subsequently ratified. 38 Cyc. 101; 7 R.C.L. 879.
Individual Chinese being liable for costs, were personally interested with other members
of Joss House Society in result of this action. Counsel's contention in trial court that at
common law they are not incompetent as witnesses is exactly contrary to authorities. 40 Cyc.
2244; 12 Enc. Ev. 779.
Actions should be prosecuted in name of real party in interest, except as otherwise
provided. Rev. Laws, 4986.
No party shall be allowed to testify where other party to transaction is dead. Rev. Laws,
5419.
Agent who arranges contract for his principal is party to transaction. Bright v. Water Co.
(D.C. Nev.), 254 Fed. 175.
If interest disqualifies, members or stockholders of corporation are disqualified. 12 Enc.
Ev. 787; Ashbury v. Hicklin, 81 S.W. 390.
Objection is timely, if made as soon as ground therefor is apparent, though made after
testimony is given. Sharon v. Minnock, 6 Nev. 377.
Possession under permission of owner, in absence of act of disseizin, does not ripen into title,
however long continued. To be adverse, possession must be such as to give notice to owner
that it is held under claim of right. McDonald v. Fox, 20 Nev. 364; 2 C.J. 264.
Case having been remanded for new trial, we are entitled to bring in new evidence and
urge legal questions not before presented. On retrial after reversal, former record is no part
of later record, unless offered.
49 Nev. 124, 127 (1925) Su Lee v. Peck
former record is no part of later record, unless offered. Rev. Laws 5319; 4 C.J. 1240; Landis
v. Ry. Co., 154 N.W. 607.
Deposition of witness as to what owner told him about transaction years after it happened,
did not open door to evidence as to what owner told party at transaction, especially when
neither was present at conversation of owner with other. Rev. Laws, 5419; 40 Cyc. 2339.
Harwood & Tippett, for Respondents:
Plaintiff is religious society, and individual Chinese, though members of it, are not
interested parties within meaning of statute, Rev. Laws, 5419. There is some conflict as to
agent or stockholder of commercial concern, but authorities are practically without dissent
that interest of member of religious or charitable society is too uncertain and remote to
disqualify him. Crosby v. Presbyterian Church, 99 S.W. 584; Shortz v. Unagast (Pa.), 3 Watts
& S. 45; Sorg v. Congregation, 63 Pa. St. 156.
If, with full knowledge of incompetency of witness, counsel allows him to testify, he takes
risk of adverse evidence and waives right to have it excluded. Sharon v. Minnock, 6 Nev.
377; King v. Haney, 46 Cal. 560.
Objection to competency of witnesses was waived not only by cross examination, but also
by calling witness to rebut. Wigmore on Evidence, par. 19.
Objections not urged on first trial cannot be put forward on subsequent trial. Points
necessarily involved cannot be used to string out litigation indefinitely. Wigmore, 318.
Haskell, coowner with Manning, was present at transaction, assisted in staking out lot, was
fully informed, and was bound just as Manning was. 7 R.C.L. 882; 38 Cyc. 111.
Individual Chinese sued in representative capacity. Property was given to Chinese boys
for Joss House. It is only when suit is vexatiously brought that such representative is liable
for costs. 2S R.C.L. 474; Jones on Evidence {3d ed.), par.
49 Nev. 124, 128 (1925) Su Lee v. Peck
representative is liable for costs. 28 R.C.L. 474; Jones on Evidence (3d ed.), par. 775.
Payment of taxes has no significance, as religious society's property is exempt.
Society claimed under color of title, followed by improvements and possession since 1878.
Title by such possession and limitation was clearly established, and is as effectual as if by
deed. 3 Abbott's Trial Evi. 1878; Ricard v. Williams, 7 Wheat. (U.S.) 49, 105; 13 Enc. Ev.
536, 606, 617, 618.
OPINION
By the Court, Ducker, J.:
This is an action to quiet title to two lots and the Chinese Joss House thereon, situated in
Chinatown in the city of Reno. Judgment was rendered in favor of plaintiffs. The plaintiffs as
indicated above are suing for themselves and others on behalf of the Lin Hing Gungsha
Society, or Joss House Society, of Reno.
The plaintiffs claim title by gift to the society in 1878 from A.H. Manning and D.H.
Haskell. The defendants claim title through mesne conveyances from the same source.
Plaintiffs also claim title by adverse possession. Plaintiffs' case rests principally upon the
testimony of Chinese witnesses. Their testimony as to title relates to statements made to them
by Manning, which plaintiffs claim evidence a gift of the lots to the society. One of the
witnesses also testifies to certain acts of Manning and his coowner, Haskell, which are also
claimed to be evidence of such gift. After the first Chinese witness, one Hi Wah, had testified
to a statement of Manning's in this regard, and had been examined on direct cross, redirect
and recross, and another witness having been called and sworn, counsel for defendants,
having first obtained an admission from counsel for plaintiffs that Manning was dead and had
been for some years, moved to strike out all of Hi Wah's testimony relating to statements
claimed to have been made by Manning to him as to the gift of the property on the ground
that the witness was incompetent to testify by reason of section 5419 of Rev. Laws.
49 Nev. 124, 129 (1925) Su Lee v. Peck
witness was incompetent to testify by reason of section 5419 of Rev. Laws. The motion was
denied by the court, and its action is assigned as error. Thereafter seasonable objections were
made to the testimony of the other Chinese, Su Lee and Charlie Bi Yen, concerning
Manning's statements, on the same ground, which were overruled by the court. These rulings
are also assigned as error. Section 5419 of the Revised Laws, invoked by defendant, reads as
follows:
All persons, without exception, otherwise than as specified in this chapter, who, having
organs of sense, can perceive, and perceiving can make known their perceptions to others,
may be witnesses in any action or proceeding in any court of the state. Facts which, by the
common law, would cause the exclusion of witnesses, may still be shown for the purpose of
affecting their credibility. No person shall be allowed to testify:
1. When the other party to the transaction is dead.
2. When the opposite party to the action, or the person for whose immediate benefit the
action or proceeding is prosecuted or defended, is the representative of the deceased person,
when the facts to be proven transpired before the death of such deceased person; provided,
that when such deceased person was represented in the transaction in question by an agent
who is living, and who testifies as a witness in favor of the representative of such deceased
person, or, when persons other than the parties to the transaction, claiming to have been
present when the transaction took place, testify as witnesses in favor of the representative of
such deceased person, in such case the other party may also testify in relation to such
transaction. * * *
Do the facts in this case show that the witnesses are persons disqualified to testify by
reason of the first prohibition of the statute: Admittedly Manning was dead when they gave
their testimony, and the transaction involved was his alleged gift to the plaintiffs. It appears
that Chinatown in Reno was destroyed by fire in 1878. After the fire, according to the
testimony of Hi Wah and Su Lee, Manning wanted the Chinamen to move where Chinatown
is now located, and in substance told the witnesses that he would give them a piece of
ground to build their Joss House on if they would move.
49 Nev. 124, 130 (1925) Su Lee v. Peck
move where Chinatown is now located, and in substance told the witnesses that he would
give them a piece of ground to build their Joss House on if they would move. In addition, Su
Lee testified that he and Manning and Haskell went to the ground and staked off the present
site of the Joss House. Charlie Bi Yen testified that about 30 years ago Manning told him that
he gave the property to the China boys for a Joss House. It appears that Hi Wah and Charlie
Bi Yen are members of the Joss House Society.
It is obvious that the objections to the testimony of the witnesses, if good, are so by reason
of the first exception in the statute, for the second class of exceptions made have no
application to the facts. The defendants are not the representatives of the deceased Manning.
The witnesses, as members of the society in whose behalf the action is prosecuted are all
interested in the result of the action. While the exception does not expressly state that no
interested party shall be allowed to testify when the other party to the transaction is dead, yet
such, we think, was the clear intention of the legislature. This is apparent from the purpose of
the statute, which was to remove the common law rule disqualifying parties and interested
persons as witnesses, with the exceptions mentioned. To construe the exception literally,
without reference to the general object sought to be attained by the statute, would create a
condition which, as stated in Bright v. Virginia and Gold Hill Water Co. (D.C.) 254 F. 175,
would practically make it impossible to prove a claim against a dead man. In Burgess v.
Helm, 24 Nev. 242, 51 P. 1025, this provision of the statute was construed to mean that no
person who had a direct interest in the result of the action shall testify when the other party to
the transaction is dead. The language of the provision is broad enough to include all persons
interested in the result of the action whether they are parties to it or not. But the evidence
discloses that the Joss House Society is an unincorporated religious society, and it was so
held to be in a former decision of this court. Su Lee v. Peck, 40 Nev. 20, 160 P. 1S. Counsel
for plaintiffs therefore contend that, as members of a religious society, the witnesses had
no such interest in the result of the action as brought them within the class of persons
intended to be excluded by the provision of the statute.
49 Nev. 124, 131 (1925) Su Lee v. Peck
Nev. 20, 160 P. 18. Counsel for plaintiffs therefore contend that, as members of a religious
society, the witnesses had no such interest in the result of the action as brought them within
the class of persons intended to be excluded by the provision of the statute. This was the
ground on which the trial court based its action permitting the testimony, and in accepting it
as ample proof of the gift. This seems to have been the common law rule as to members of
such associations. On this phase of the common law, Mr. Jones, in his work on Evidence,
says:
Members of charitable, educational and religious corporations had not such pecuniary
interest as to be disqualified as witnesses. Hence, the members and officers of churches,
school districts, private educational institutions and the like were competent to testify at
common law. Jones on Evidence (2d ed.), sec. 732.
In this regard Prof. Greenleaf says:
Yet the members of charitable and religious societies, having no personal and private
interest in the property holden by the corporation, are competent witnesses in any suit in
which the corporation is a party. 1 Greenleaf on Evidence (16th ed.), p. 864.
See Hershy v. Clarksville Institute, 15 Ark. 128; Davies v. Morris, 17 Pa. 205; Matter of
Kip, 1 Paige (N.Y.), 601; Hill v. School Dist. No. 2 in Millburn, 17 Me. 316; Cooper v.
Sisters of Providence, 16 Ind. 164; Sorg v. German Congregation, 63 Pa. 156.
1. We are of the opinion that the legislature, in removing the common law disability of
witnesses as to parties and interested persons, and in excluding certain persons from the
operation of the act, intended to exclude such only as would have been excluded by common
law rules. In other words, where the other party to the transaction is dead, the person whose
testimony is offered stands exactly as he would have stood if section 5419 had never been
enacted. Applying these principles, Hi Wah, Su Lee, and Charlie Bi Yen were not
disqualified as witnesses. Their interest as members of the religious society in whose behalf
the action is prosecuted is not of the direct legal nature as would have rendered them
incompetent at common law, and is not therefore within the purview of the exception to
the statute.
49 Nev. 124, 132 (1925) Su Lee v. Peck
prosecuted is not of the direct legal nature as would have rendered them incompetent at
common law, and is not therefore within the purview of the exception to the statute.
2. Counsel for appellants contend that whatever may be the rule as to Hi Wah in this
particular, it cannot apply to Su Lee and Charlie Bi Yen, who are parties to the action. It is
insisted that, as parties to an action were incompetent witnesses at common law, Su Lee and
Charlie Bi Yen are rendered incompetent by the exception to the statute. The general rule at
common law as to parties is as above stated, and there is some authority holding that all
parties to the record, nominal or otherwise, regardless of interest, were incompetent to testify
at common law; but by the greater weight of authority, as we deem it, an exception existed as
to nominal parties with no real interest in the action. 40 Cyc. 2245, and cases cited in note 96.
Taking this view, the court in Barker v. Ayers, 5 Md. 202, 209, 210, said:
There can be no doubt that the authorities establish it as a general proposition that a party
to the suit is not a competent witness; but it is equally true, they declare the reason of the rule
to be, that he has an interest either in the object of the suit or in the costs. As, therefore, the
law is said to be founded in reason, and what is not reason is not law, it would seem to
follow, necessarily, that when the reason of a legal rule ceases to exist the rule does not apply.
That the mere fact of being a party does not render him incompetent to testify, is most
unequivocally announced in Lizardi et al. v. Cohen et al., 3 Gill [Md.] 430, and the reason for
excluding him is, as explicitly stated to be, his interest in the result, either in regard to the
claim or the costs. On page 435, the opinion of Judge Washington, in Willings and Francis v.
Consequa, Pet. C.C. 307 [Fed. Cas. No. 17, 767] is referred to, in which he speaks of a party
being excluded as a witness, and states that the interest he has in the event of the suit, as to
costs and the subject in dispute, lies at the foundation of the rule, and when that interest is
removed the objection ceases to exist.' The court also refer to the decision pronounced by
Chief Justice Tindal, in Worrall v. Jones, 7 Bing.
49 Nev. 124, 133 (1925) Su Lee v. Peck
by Chief Justice Tindal, in Worrall v. Jones, 7 Bing. 395, as maintaining the true and sound
doctrine on this subject. The opinions of several other distinguished jurists are noticed, and
the court says: When it appears that the party proposed to be examined is not responsible for
the costs of the suit, and has no interest in the subject in dispute, and is willing to be sworn,
he is not within the operation of the general rule.'
In Paine v. Tilden, 20 Vt. 554, the court said:
The mere objection, that the witness is a party to the record, when he has no interest in
the event of the suit, or is called to testify against his interest, has been too often decided by
this court to be of no force to be again brought in question. The very point now in judgment
was expressly decided in Caledonia County in the case of Pierce et al. v. Lyman et al., and
virtually in Sargeant v. Sargeant et al., 18 Vt. 371. The language of Chief Justice Tindal, in
Worrall v. Jones, 20 E.C.L. 180, expresses the true state of the English law upon the subject.
He says: No case has been cited, nor can any be found, in which a witness has been refused,
upon the objection in the abstract, that he was a party to the record; on the contrary many
have been brought forward, in which parties to the suit, who have suffered judgment by
default, have been admitted as witnesses, against their own interest; and the only inquiry
seems to have been, in a majority of cases, whether the party called was interested in the
event of the suit, or not; and the admission or rejection of the witness has depended upon the
result of this inquiry.' After such a declaration from so distinguished a judge in Westminster
Hall, it would seem captious, not to say frivolous, to doubt the state of the English law upon
this subject.
It is true that, in the leading English case quoted from in the foregoing opinion, the court
decided the case upon the principle that a party to a suit, who has suffered judgment by
default, and consents to be examined, and who is called against his own interest, is
competent, but the court unequivocally states that a party to the suit, not interested in the
event of the suit, was not incompetent.
49 Nev. 124, 134 (1925) Su Lee v. Peck
Any interest in the result of a trial, if it was only a liability for costs, would render a party
an incompetent witness at common law. As stated by Prof. Greenleaf:
The rule, excluding parties from being witnesses, applies to all cases where the party has
any interest at stake in the suit, although it be only a liability to costs. 1 Greenleaf on
Evidence (16th ed.), p. 865.
In this regard counsel for appellants contends that Su Lee and Charlie Bi Yen, being
parties to the suit, are liable for the costs, and are therefore within the exception of the statute.
We take a different view. While they are parties plaintiff to the suit, it is plain that they are
such only in a representative character. The society is the real party in interest. Their authority
to sue is given by section 5001 of the Revised Laws, which, in the stated cases, gives one or
more persons authority to sue or defend for all. The section reads;
Of the parties to the action, those who are united in interest shall be joined as plaintiffs or
defendants; but if the consent of any one, who should have been joined as plaintiff, cannot be
obtained, he may be made a defendant, the reason thereof being stated in the complaint; and
when the question is one of a common or general interest of many persons, or when the
parties are numerous, and it is impraticable to bring them all before the court, one or more
may sue or defend for the benefit of all. Tenants in common, joint tenants, or coparceners, or
any number less than all, may jointly or severally bring or defend or continue the prosecution
or defense of any action for the enforcement of the rights of such person or persons.
In Branson v. Industrial Workers of the World, 30 Nev. 270, 95 P. 354, it was held that in
the above section the legislature intended to make the equity rule as to joinder of parties,
where the parties are numerous and it is impracticable to bring them all before the court, of
permitting one or more to sue or defend for the benefit of all, available in an action at law;
and that in such an action against voluntary, unincorporated associations, it is proper to sue
the associations as such and join a few natural persons, members of the association, to
represent all the members.
49 Nev. 124, 135 (1925) Su Lee v. Peck
a few natural persons, members of the association, to represent all the members.
The action in the present case was obviously brought under this statute. It is alleged as a
reason for not joining other Chinese persons residing in Reno, Nevada, also members of the
said society, that said other Chinese persons are too numerous to be joined as plaintiffs.
Consequently Su Lee and Charlie Bi Yen are not liable for the cost, unless they were guilty of
mismanagement or bad faith, which does not appear. They are persons expressly authorized
to sue by section 5385 of the Revised Laws, and by the terms of the statute relieved from
liability for costs. The section reads:
In an action prosecuted or defended by an executor, administrator, trustee of express trust,
or a person expressly authorized by statute, costs may be recovered as in an action by and
against a person prosecuting and defending in his own right; but such costs shall, by the
judgment, be made chargeable only upon the estate, fund, or party represented, unless the
court shall direct the same to be paid by the plaintiff or defendant, personally, for
mismanagement or bad faith in the action or defense.
The party represented, which in this case is a voluntary, unincorporated association, the
Joss House Society, is expressly made liable for the costs. Having held that the witnesses
were competent, it becomes unnecessary to determine plaintiffs' contention that the objection
to Hi Wah's testimony came too late.
3-5. The testimony of the Chinese witnesses, a summary of which has been stated, is
sufficient to prove a gift of the property in question from Manning to the Joss House Society.
In fact, on appeal from a former trial of this case, their evidence, which was practically the
same as in this case, was held sufficient to show a gift. Su Lee v. Peck, supra. We deem it
unnecessary to again analyze and state their testimony in detail. On the trial of the case it was
proved by defendants that the assessment roll of Washoe County disclosed that from 1879 to
1914, inclusive, all taxes on the lots in question had been paid by the owners of the record
title.
49 Nev. 124, 136 (1925) Su Lee v. Peck
question had been paid by the owners of the record title. While the payment of taxes on the
lot was a circumstance tending to refute the claim of a gift, yet it was not conclusive.
Carleton-Ferguson Dry Goods Co. v. McFarland (Tex. Civ. App.), 230 S.W. 208, 214. It is
certainly not of sufficient weight to overthrow the clear and satisfactory proof of a gift inter
vivos. The circumstance is, in fact, of little evidential value when considered in connection
with the circumstances that from 1879 to 1907, on which last date the defendants Peck &
Quinn obtained their deed, the lots were, for the purposes of assessment, valued together with
31 other contiguous lots at a low valuation. The amount of taxes paid during that period
ranged from about $1 to $3 on each lot. The fact that the society paid no taxes on the property
does not militate against the evidence showing a gift, for the Joss House, being used for
religious worship, was exempt from taxation. Its furniture and equipment and the lot of
ground on which it stood were also exempt. Section 3621, Rev. Laws.
6, 7. It is insisted that there is no evidence to show a gift from Haskell to the society.
Haskell, according to the testimony of Su Lee, went with the witness and Manning and
participated with the latter in staking off the lots by setting a post on each corner. When the
witness was being examined, the court and counsel and court officials went with the witness
to the premises, at which place the following testimony was given, to wit:
The Court: Q. Where did Mr. Manning put stakes? A. Manning and Doc Haskell he put
stakes down here.
Mr. Harwood: Q. Go with your cane and show him where he put stake. A. (Witness
indicated.)
Q. They put one stake here? A. Yes, 25 feet away.
The Court: Q. Now show us where he put another stake. A. Twenty-five feet wide
(indicating).
Q. Do you remember about where it was? A. He says about 25 feet wide from that point
to that point (indicating).
Q. But where the other stake there? A. Put a stake over there and one here.
49 Nev. 124, 137 (1925) Su Lee v. Peck
Q. Where did he put the other stakes? A. Way down the river.
On resuming the examination in court the following took place:
Q. And who did you say went with you when you put down stakes? A. Manning and Doc.
Q. Doc Haskell? A. Yes.
Mr. Harwood: Q. What did Mr. Manning say when you went down there and put stakes
on lot? A. Manning say, You like this lot?' I say, Yes, I like this lot.' All right; I come put a
stake on each corner of house.'
Q. Anything else? Anything more? A. He put stake every corner, You have this lot for
Joss House,' you know.
This evidence is not sufficient to show a gift from Haskell of his interest in the premises.
The evidence clearly shows that Manning gave the entire premises, but it does not appear that
any of his statements in this regard were made in the presence of Haskell, and no statement of
Haskell's concerning the transaction appears in the record. A gift cannot be proved by
evidence of an equivocal character. To sustain a gift the evidence must be clear, convincing
the unequivocal:
A clear and unmistakable intention on the part of the donor to make a gift of his property
is an essential requisite of a gift inter vivos. And this intention must be inconsistent with any
other theory. 28 C.J. 627, 628.
8. While the evidence does not sustain a gift from Haskell, it does show that the society
acquired title to his interest by adverse possession. Haskell's cotenant, Manning, did not give
his undivided one-half interest in the property, but, on the contrary, gave the entire premises.
The society entered into the possession of the whole, building its Joss House thereon,
claiming the entire property as its own, peaceably, openly and notoriously. This, under the
principle which we think must prevail, amounted to a disseizin of the cotenant, Haskell, and
constituted an adverse holding, which, on the expiration of the time prescribed by statute,
ripened into title by adverse possession.
49 Nev. 124, 138 (1925) Su Lee v. Peck
This is certainly the law where the tenant in common conveys the entire title by deed to a
stranger, and it is not apparent why a different principle should prevail in case of a gift. In 7
R.C.L. sec. 49, p. 854, the principle is thus stated:
A conveyance to a stranger to the title, by one cotenant, by an instrument purporting to
pass the entire title in severalty, and not merely such cotenant's individual interest, followed
by an entry into actual, open and exclusive possession by such stranger under claim of
ownership in severalty, amounts to a disseizin of the other cotenants, which if continued for
the statutory period will ripen into good title by adverse possession.
In 1 Am. & Eng. Ency. of Law (2d ed.), p. 806, the law is stated as follows:
A conveyance by one cotenant of the entire estate gives color of title, and if possession is
taken under it, the grantee claiming title to the whole, it amounts to an ouster of the cotenants,
and the possession of the grantee is adverse as to them.
The principle stated in the foregoing text is sustained by the great weight of authority. See
cases cited in note 2 Am. & Eng. Ency. of Law, supra. Abernathie v. Con. Virginia Min. Co.,
16 Nev. 260; Bogardus v. Trinity Church, 4 Paige (N.Y.), 178; Jackson v. Cole, 146 Ark.
565, 226, S.W. 513, 1064.
9. Haskell was aware that a stranger was in the actual and exclusive possession of the
entire premises and had made valuable improvements thereon. This of itself was notice
sufficient to put him on inquiry. If he had inquired he would have discovered that the society
was in possession under a claim of right to the entire premises by gift from Manning. As said
in Winterburn v. Chambers, 91 Cal. 170, 27 P. 658:
A cotenant out of possession, in order to avail himself of the presumption attending the
acts of a stranger in possession, must show that such stranger is his cotenant. There is no
presumption of such contenancy, and in the absence of such showing, he is chargeable with
notice of the real character of his claim.
49 Nev. 124, 139 (1925) Su Lee v. Peck
10. The payment of taxes by the adverse claimant is not an essential element of adverse
possession in this case. As previously stated, the Joss House was a building used for religious
worship, and, as such, was exempt from taxation. On the other hand, the disseizin took place
in 1878, and the period of five years required by statute had elapsed before the payment of
taxes was made a statutory element of adverse possession.
The judgment is affirmed.
March 8, 1926.
Per Curiam:
Rehearing denied.
____________
49 Nev. 139, 139 (1925) Coleman v. Moore & McIntosh
COLEMAN v. MOORE & McINTOSH
No. 2723
December 3, 1925. 241 P. 217.
1. Appeal and ErrorAnnouncement of Court on Certain Date of Its Decision, Entered in
Minutes of Court, Constituted Rendition of Judgment.
The announcement by the court on a certain date of its decision, entered in the minutes of the court,
constituted the rendition of a judgment, within Rev. Laws, sec. 5329, notwithstanding there was no
judgment signed at that time, and, upon the death of the judge entering the decision, the succeeding judge
later signed the judgment pursuant to amendment to practice act, sec. 547, found in Stats. 1925, c. 77.
2. Appeal and ErrorAmendment to Statute Applicable to Judgment Held Not to Apply to
Judgment Rendered Before Enactment of Amendment.
Amendment to practice act, sec. 547, found in Stats. 1925, c. 77, which is applicable to judgments,
held not to apply to a judgment rendered before the enactment of such amendment.
See 3 C.J. sec. 1034, p. 1042, n. 19; sec. 1054, p. 1055, n. 34; p. 1057, n. 37; sec. 1074, p. 1067, n. 28.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Action by Catherine Coleman individually and as executrix of the estate of Denis Hegarty,
deceased, against Moore & McIntosh and two others. Judgment for defendants, and, from an
order sustaining defendants, motion to strike notice of intention to move for a new trial,
and the undertaking thereon, plaintiff appeals.
49 Nev. 139, 140 (1925) Coleman v. Moore & McIntosh
motion to strike notice of intention to move for a new trial, and the undertaking thereon,
plaintiff appeals. Appeal dismissed.
M.B. Moore and Wm. McKnight, for Movant:
Judgment became effective from time it was rendered and time for all later proceedings began
to run from that date, February 6, 1925. On September 14, 1925, another judge signed and
had filed written judgment, dating it February 6, 1925. We contend time began to run from
earlier date. If correct, motion should be granted. Tel. Co. v. Patterson, 1 Nev. 150; Nelson v.
Smith, 42 Nev. 302; Clark v. Turner, 42 Nev. 450.
A. Grant Miller, for Appellant:
There was no authority in law of this state for another judge to sign findings, decision or
judgment rendered by deceased judge until March 16, 1925, when Stats. 1925, 115, was
approved. Plaintiffs took premature appeal, which was dismissed. No findings have ever been
signed, but Judge Bartlett signed paper now entitled judgment on September 14, 1925,
dating it February 6, 1925. On September 24 appellants duly signed, within time, notice of
intention to move for new trial. Respondents filed motion to strike, which was granted. From
that action this appeal is taken.
Appellants have been denied constitutional rights and deprived of due process of law and
of their day in court.
OPINION
By the Court, Ducker, J.:
This is a motion to dismiss an appeal. A statement of the facts upon which the motion is
based follows: On the 5th day of February, 1925, this action came on regularly for trial in the
district court of Washoe County, Judge J.A. Callahan presiding. Counsel for respondents,
who were defendants there, objected to any testimony being taken on the part of plaintiffs.
The objection was sustained, except as to parts of certain paragraphs of the complaint.
49 Nev. 139, 141 (1925) Coleman v. Moore & McIntosh
paragraphs of the complaint. Evidence was stipulated in support of said paragraphs, and the
case submitted. On the 6th day of February, 1925, the court rendered its decision, which was
entered in the minutes of the court, that plaintiff take nothing by her complaint, and that
defendants have judgment for costs. Plaintiffs moved for a new trial, which was denied on
March 16, 1925. On the 26th day of March, 1925, plaintiffs filed a notice of appeal from the
judgment entered on the 6th day of February. No appeal was taken from the order denying the
motion for a new trial.
Plaintiffs applied to the lower court on the 1st day of May, 1925, for an order directing
defendants to prepare and present to the judge thereof findings of fact and conclusions of law
and judgment in the action, or at the pleasure of the court, for an order directing the clerk of
said court to prepare such judgment, and also applying to the court to have the judge thereof
sign such judgment. The application was based upon the fact that Judge Callahan died before
any judgment was presented to him for his signature. It was alleged in the notice of the
application that no judgment had been signed, made, or entered in said action; that the
legislature, since the death of Judge Callahan, had passed an act authorizing succeeding
judges to sign judgments where the acting judge is dead, and that plaintiffs desired to appeal
from said judgment and could not do so until it was entered. On the 14th day of September,
1925, Judge George A. Bartlett, one of the judges of the lower court, signed the following
judgment:
This cause coming on for trial on the 5th day of February before the court, without a jury,
and the court having heard said matter, and the argument of counsel therein arising upon the
objections of the defendants to the taking of any testimony under the complaint, and the
matter having been submitted for decision, the court being fully advised in the premises, it is
ordered and adjudged that the defendants' objection to the taking of any testimony in said
cause be sustained, and that plaintiffs take nothing by their complaint and action, and the
defendants have judgment for their costs.
49 Nev. 139, 142 (1925) Coleman v. Moore & McIntosh
defendants have judgment for their costs. Execution stayed for a period of ten days upon
stipulation of counsel.
Dated this 6th day of February, 1925.
Thereafter, on the 23d of September, 1925, on motion to dismiss the appeal and upon
filing in the supreme court a certificate of the clerk of the lower court showing that
defendants failed to file, within 30 days after their appeal had been perfected, a transcript of
the record or bill of exceptions, said appeal was dismissed. On the 24th day of September
plaintiffs filed a notice of intention to move for a new trial in the court below, and on the 25th
day of September defendants filed notice of motion to strike said notice of intention to move
for a new trial and the undertaking thereon. After a hearing on the motion to strike, the court
on the 29th day of September, 1925, sustained it. From the order sustaining this motion, the
plaintiffs appealed on the following day. It is this appeal that defendants now seek to have
dismissed.
1. As we have stated, the appeal in this case is from the judgment only. An appeal may be
taken from a final judgment within six months after the rendition of judgment. Section 5329,
Rev. Laws. If judgment was rendered on the 6th day of February, 1925, the appeal must be
dismissed, for it was not taken until nearly eight months thereafter, on the 30th day of
September, 1925.
Plaintiffs assert that the former appeal was premature and taken merely as a precautionary
measure, and contend that their time within which to take an appeal did not begin to run until
the formal judgment was signed and entered on the 14th day of September, 1925. The
contention cannot be sustained. The announcement of the court on the 6th day of February,
1925, of its decision, which was entered in the minutes of the court, was the rendition of final
judgment.
The same contention was made in Central T. Co. v. Holmes M. Co., 30 Nev. 437, 97 P.
390, in respect to which the court said: "It is contended by counsel for appellants that the
statutes of limitations in respect to the filing of an appeal do not begin to run until the
entry of the judgment.
49 Nev. 139, 143 (1925) Coleman v. Moore & McIntosh
It is contended by counsel for appellants that the statutes of limitations in respect to the
filing of an appeal do not begin to run until the entry of the judgment. In this contention we
disagree with counsel. In some jurisdictions, notably in California, pursuant to the provisions
of statute, the time for taking an appeal does not begin to run until the entry of the judgment,
and if an appeal be taken before such entry it will be dismissed as being premature. An
examination of the decisions in such jurisdictions will readily show that the statutes
regulating appeals have always been rigidly followed; and upon a parity of reasoning this
court in a repeated line of decisions has followed the sections of the Compiled Laws defining
the procedure to be taken on appeal. Where the statute refers to the rendition of judgment, it
means the formal announcement by the court, and does not mean the entry of the same by the
clerk.
It is true that in the foregoing case a written decision was filed at the time judgment was
ordered, but in the course of its opinion the court said:
It is evident therefore, that when the district court on the 7th day of June, 1906, made its
oral decision and ordered that judgment be entered accordingly, that act constituted the
rendition of judgment referred to in the statutes, regulating the time from which appellants'
right to appeal began to run; and, as it appears that appellants did not avail themselves of their
right of appeal within the time allowed by law, this court has no jurisdiction to proceed to
determine the merits of this appeal.
Decisions of this court to the same effect are cited and reviewed in the opinion.
In Cal. State Tel. Co. v. Patterson, 1 Nev. 155, the court said:
The judgment is a judicial act of the court, the entry is the ministerial act of the clerk. The
judgment is as final when pronounced by the court as when it is entered and recorded by the
clerk, as required by statute.
49 Nev. 139, 144 (1925) Coleman v. Moore & McIntosh
An again:
The right of appeal under our practice does not depend upon the entry or perfection of the
judgment of the lower court, but upon the rendition of it. Id.
An appeal taken more than six months after the rendition of judgment will be dismissed.
Nelson v. Smith, 42 Nev. 302, 176 P. 261, 178 P. 625; Clark v. Turner, 42 Nev. 450, 180 P.
908.
It is contended that the time in which plaintiffs had to appeal from the judgment is
governed by the amendment to section 547 of the practice act found in Stats. 1925 at pages
114, 115, and that by virtue thereof the time did not begin to run until the judgment was
signed and entered on the 14th day of September. The amendment reads as follows:
In case of the death of a district judge after he has rendered and filed a decision or
opinion or caused the same to be entered in the minutes of the court and before the filing of
findings, or the entry of judgment, the succeeding judge of the court in which such cause was
tried shall make an examination of the decision or opinion, the minutes of such cause, the
pleadings, the record and reporter's notes taken therein, if any, and shall sign and settle the
findings, and cause judgment to be entered in the same manner as if such succeeding judge
had presided at the trial of the cause.
Sec. 2. This act shall become effective immediately after its passage. * * *
2. The contention is not tenable. The amendment simply provides how a succeeding judge
may perfect a judgment rendered by a predecessor, since deceased, and cause it to be entered.
It in no manner affects the time in which an appeal may be taken after the rendition of
judgment. Moreover, final judgment was entered in this case on February 6, 1925, and the
amendment was not approved until March 16, 1925. For this reason also the amendment has
no application in this case.
The appeal is dismissed. It is so ordered.
____________
49 Nev. 145, 145 (1925) Ex Rel. Nenzel v. District Court
EX REL NENZEL v. DISTRICT COURT
No. 2720
December 4, 1925. 241 P. 317.
1. ReceiversCourt Cannot Direct Receiver to Take, from Possession of Sheriff, Property
Attached by Creditor.
The superior court has no authority to order a receiver appointed under Rev. Laws, sec. 5193, as
amended by Stats. 1923, c. 22, sec. 1, and not under Rev. Laws, sec. 1195, or Stats. 1925, c. 177, sec. 47,
to take from the possession of a sheriff property of a corporation levied upon by him under attachment by
a creditor.
2. ReceiversSheriff May Refuse to Deliver Property Lawfully Attached to One Claiming
as Receiver under Void Appointment.
A sheriff, having come into possession of property by a lawful attachment and being in peaceable
possession thereof, may refuse to deliver it to a receiver even if attachment has been discharged, where
appointment of receiver was null and void.
3. EstoppelReceiver Estopped from Questioning Attachment by Sheriff.
Where court appointed a receiver to whom sheriff refused to deliver property of corporation which he
had attached in behalf of creditor, receiver held estopped, by his allegation in a contempt affidavit filed
against the sheriff alleging that latter held the property under attachment, from subsequently questioning
the attachment.
4. AttachmentFailure to File Attachment Bond on Date Required, Cured.
Where attaching creditor was required by court to file an additional bond and such bond was not
approved until several days after date set for its filing, attachment lien held not discharged, but defect was
cured under district court rule 20, allowing amendments.
5. ReceiversAppointment of Receiver Held Unauthorized in Absence of Action Pending.
An appointment of a receiver under Rev. Laws, sec. 5193, is unauthorized in the absence of an action
pending in which the application was made.
6. ReceiversAppointment of Receiver in a Separate Proceeding, after Judgment in Action
to Recover on a Money Demand, Not Authorized under Statute.
The appointment of a receiver in a separate proceeding for that purpose, after a judgment in an action
at law to recover on a money demand, is not authorized under Rev. Laws, sec. 5193, subds. 3 and 4.
7. CorporationsAppointment of Receiver Not Authorized because of Mere Insolvency.
Appointment of receiver of a corporation, merely because the corporation is insolvent, is not
authorized by Rev. Laws, sec. 5193, subd. 5.
49 Nev. 145, 146 (1925) Ex Rel. Nenzel v. District Court
8. ReceiversCourt Held Not Entitled to Appoint Receiver under Equity Powers Conferred
by Statute.
The court had no jurisdiction to appoint a receiver to take over and manage and operate corporate
property under its general equity powers as conferred by Rev. Laws, sec. 5193, subd. 6, where plaintiff, a
creditor, had an adequate remedy at law and no irreparable damage would be sustained.
See (1, 2, 4, 5, 6, 8) 34 Cyc. p. 23, n. 50; p. 29, n. 77; p. 65, n. 28; p. 229, n. 43; 6 C.J. sec. 312, p. 173, n. 73
(new); (3) 21 C.J. sec. 23, p. 1066, n. 75; (7) 14a C.J. sec. 3161, p. 947, n. 10; sec. 3178, p. 958, n. 13.
Prohibition by the State of Nevada, on the relation of Joseph Nenzel and others, against
the Second Judicial District Court of the State of Nevada in and for Washoe County, and
George A. Bartlett, as Judge of said court. Writ made permanent. Rehearing denied.
Thos. E. Powell, M. B. Moore, George F. Snyder and Wm. McKnight, for Petitioners:
Receiver cannot be appointed or take over all assets except in dissolution action brought
according to law. Havemeyer v. Court, 24 P. 121; French Bank Case, 53 Cal. 495; Rev. Laws,
1195; Stats. 1923, 20.
Prohibition is proper remedy to prevent punishment as for contempt for alleged violation
of void order. Main v. Luce, 215 P. 399. Also to prevent court from taking possession by
receiver when order of appointment is void. Murray v. Court, 62 P. 191.
Supreme court is not precluded from determining jurisdiction where its want is apparent
from pleadings, because no plea to jurisdiction was entered in lower court. High on
Extraordinary Legal Remedies, sec. 744; State v. Court, 200 P. 92.
Court has no authority to direct receiver to take possession of property previously attached.
High, sec. 440; State ex rel. v. Court, 34 P. 430.
Not having objected to bond or attachment, respondents cannot urge objection here. 6 C.J.
175; Moresi v. Swift, 15 Nev. 215.
Complaint fails to show corporation is insolvent; that there was no complete remedy at law,
but it does show there was remedy by execution on property not covered by attachment; it
was filed in one county and property is situated in another; it contains only legal
conclusions, and shows collusion.
49 Nev. 145, 147 (1925) Ex Rel. Nenzel v. District Court
show there was remedy by execution on property not covered by attachment; it was filed in
one county and property is situated in another; it contains only legal conclusions, and shows
collusion. State ex rel. Krich v. Court, 78 P. 461; Heavilon v. Bank, 81 Ind. 249; 34 Cyc. 107,
111; Smith on Receivers (2d ed.), 692.
Prince A. Hawkins, Price & Hawkins, and Cooke & Stoddard, for Respondent:
In Von Roun v. Court, 58 Cal. 358, under nearly similar circumstances court held question
one of jurisdiction solely.
Every material question in this petition has been held without merit upon prohibition.
Irving National Bank v. Court, 47 Nev. 86; State ex rel. Cameron v. Court, 48 Nev. 198.
Reinhart Co. v. Mng. Co., 48 Nev. 32.
Prohibition will never issue except in cases of usurpation or abuse of power, and then only
when other remedies are inadequate. Walcott v. Wells, 21 Nev. 47; Agissiz v. Court, 27 P.
49.
Petitioners could have appeared, and it was their duty to appear in receivership court by
intervention, with rights of appeal secured. Irving Bank Case, supra.
Appeal is proper and adequate remedy to prevent appointment of receiver and sale by him
of property; prohibition will not issue though order is in excess of jurisdiction. White v.
Court, 42 P. 472.
Insolvency for receivership purposes and insolvency for bankrupt purposes are
distinguished. Insolvency imports present inability to pay; future contingencies do not affect
matter. In Re Wells, 29 Fed. 637; 7 R.C.L. 745.
Receivers are quite universally appointed where corporations, though not insolvent, are
temporarily embarrassed financially if receivership facts are set forth in petition, where such
course will protect creditors and stockholders and preserve assets. 1 Tardy's Smith on
Receivers (2d ed.), 691; Ry. Co. v. Steel Co., 75 Fed. 54; Booth v. Mng. Co., 104 P. 207; 8
Fletcher Cyc. Corp., sec. 5215, criticizing doctrine in French Bank Case.
49 Nev. 145, 148 (1925) Ex Rel. Nenzel v. District Court
Attachment was discharged as to property affected when additional bond required was not
filed.
Is not most important question whether going concern, operating at full capacity, may be
closed down and virtually destroyed by one attaching creditor, to irreparable injury of other
creditors and of company itself?
OPINION
By the Court, Coleman, C. J.:
This is an original proceeding in prohibition. The petition alleges that Hon. George A.
Bartlett at all times therein mentioned was and now is one of the judges of the Second judicial
district court of the State of Nevada, in and for the county of Washoe, presiding in department
2 thereof; that the petitioner Jurgensen at all times mentioned was and now is the duly
elected, qualified, and acting sheriff of Pershing County, Nevada; and that petitioner Thomas
E. Powell is and at all times mentioned in the petition was the duly appointed, qualified, and
acting district attorney of said Pershing County; that on the 31st day of July, 1925, there was
commenced in the Sixth judicial district court of Nevada, in and for Pershing County, a
certain action by A.R. McRae, as trustee in bankruptcy, and Joseph F. Nenzel, against the
Rochester Silver Corporation, a corporation, to recover judgment in the sum of $1,025,000;
that thereafter a writ of attachment was issued in said suit pursuant to which said Jurgensen,
as sheriff, attached certain real and personal property belonging to said company, which has
ever since remained in the possession of said sheriff pursuant to said writ of attachment; that
thereafter the said Sixth judicial district court made an order requiring the plaintiffs in said
suit to file an additional bond on attachment in the sum of $17,500, on or before September
18, 1925; and that said order was complied with.
It is further alleged in said petition that on the 19th day of September, 1925, the Nevada
Valleys Power Company, a corporation, as plaintiff, commenced a certain proceeding
against the Rochester Silver Corporation, as defendant {hereinafter referred to as "Co."),
a copy of the complaint in which proceeding is annexed to and made a part of the petition
herein; that thereupon the said Nevada Valleys Power Company caused to be filed in said
last-mentioned proceeding a notice of motion for the appointment of a receiver and for an
injunction, a copy of which is annexed to and made a part of the petition herein; that
thereafter, and on the same day, the court, in said proceeding, appointed C.T. Stevenson
as receiver of the Rochester Silver Corporation and also issued an injunction therein, a
copy of which is annexed to and made a part of the petition herein; and that on said
last-mentioned day the said Stevenson duly qualified as such receiver.
49 Nev. 145, 149 (1925) Ex Rel. Nenzel v. District Court
proceeding against the Rochester Silver Corporation, as defendant (hereinafter referred to as
Co.), a copy of the complaint in which proceeding is annexed to and made a part of the
petition herein; that thereupon the said Nevada Valleys Power Company caused to be filed in
said last-mentioned proceeding a notice of motion for the appointment of a receiver and for
an injunction, a copy of which is annexed to and made a part of the petition herein; that
thereafter, and on the same day, the court, in said proceeding, appointed C.T. Stevenson as
receiver of the Rochester Silver Corporation and also issued an injunction therein, a copy of
which is annexed to and made a part of the petition herein; and that on said last-mentioned
day the said Stevenson duly qualified as such receiver.
It is further averred: That on September 21, 1925, said Stevenson, as such receiver,
demanded that the petitioner Jurgensen, as sheriff as aforesaid, deliver to said Stevenson, as
such receiver, all of the property which had come into his hands as such sheriff pursuant to
the attachment proceedings aforesaid, but that said sheriff refused and still refuses to deliver
over the same, and that the petitioner Powell, as district attorney, advised him to so refuse.
That thereafter and on the 8th day of October, 1925, the said receiver filed in the office of the
clerk of the said Second judicial district court an affidavit of facts on application for citation
for contempt, a copy of which is annexed to the petition and made a part thereof. That
thereupon the respondent issued, made, and entered an order in criminal contempt directed to
the petitioners Jurgensen and Powell, citing them to appear before the respondent court and
show cause why they should not be adjudged guilty of contempt for violating said order
appointing said receiver and issuing said injunction, a copy of which is annexed to and made
a part of the petition. It is further averred that the respondent threatened to, and unless
restrained will, adjudged petitioners Jurgensen and Powell guilty of contempt of court, and
will imprison the said Jurgensen until he shall deliver the property mentioned to said receiver.
49 Nev. 145, 150 (1925) Ex Rel. Nenzel v. District Court
Upon the filing and presentation of the petition herein, it was ordered that an alternative
writ of prohibition issue.
Respondent filed a demurrer to the petition and also an answer and return to the writ. In
the answer and return the respondent denies that the additional bond in the sum of $17,500
was filed in conformity with the order of the court, and avers that in addition to requiring said
additional bond, the order provided that the property attached be, and the same hereby are,
released from said writ of attachmentunless such additional bond or undertaking on
attachment, so conditioned, and in the sum of $17,500, be furnished and filed in the
above-entitled action and court on or before September 18, 1925. It is further averred that
said bond was not approved until the 22d day of September, 1925.
The complaint in the proceeding for the appointment of a receiver alleges:
That plaintiff had theretofore obtained a judgment against the Co. in the sum of
$1,939.56, and that in addition to said judgment debt various other persons are making
claims against said defendant for money claimed to be due from said defendant, and several
suits have been commenced, and are now pending in different courts of the State of Nevada,
and in some of said actions, writs of attachment have been issued and portions of the assets
and property of said defendant have been attached, including the mill and machinery therein,
and the attaching officer has closed down said mill; that, according to information and belief,
none of the claims involved in said actions have been adjudicated or determined, but are
being contested by said defendant.
That, while the aggregate of the property and assets of defendant company at a fair
valuation is more than sufficient in amount to pay the debts of said defendant company,
unless a receiver is appointed and injunction granted as prayed herein, other suits will be
commenced against said defendant company, and the property and assets of said defendant
company will be seized by writs of attachment or execution or other process, and thereby
dissipated, lost, removed, or materially injured, and the business and enterprise of
defendant company will be disrupted, broken, dissipated, and destroyed, and the value of
the property and assets of said defendant company greatly diminished, to the great and
irreparable injury of plaintiff and of other creditors of defendant company and of the
defendant company.
49 Nev. 145, 151 (1925) Ex Rel. Nenzel v. District Court
dissipated, lost, removed, or materially injured, and the business and enterprise of defendant
company will be disrupted, broken, dissipated, and destroyed, and the value of the property
and assets of said defendant company greatly diminished, to the great and irreparable injury
of plaintiff and of other creditors of defendant company and of the defendant company. That
the appointment of a receiver as prayed for is necessary in order to prevent serious loss and
irreparable injury to the plaintiff, as a judgment creditor of the defendant, and other parties
interested, as herein set forth. That said judgment debtor refuses to apply any of its property
in satisfaction of plaintiff's said judgment. That, according to information and belief, the
amounts claimed to be due from defendant to the parties instituting suits, and in which writs
of attachment have been issued as herein set forth, are unreasonable and fictitious, and are not
bona fide claims of indebtedness of defendant company herein.
That, according to information and belief, the principal property and assets of said
defendant company are: Certain lode mining claims, some 40 or 50 claims, situated in
Rochester mining district, Pershing County, Nevada, all of which constitute a group of
mining claims; a 10-stamp (1,550 pounds each) cyanide mill, and reduction works, including
all machinery and apparatus used in the operation of said 10-stamp cyanide mill, said mill
having a daily capacity of approximately 160 tons, boarding house, storerooms, mining cars,
drills, picks, shovels, pipes, blacksmith's shop and equipment, assay office and supplies,
powder cyanide, and much other personal property and machinery used by said defendant
company in the working of said mining claims and operating said mill.
It is further alleged in the complaint in said receivership suit that through some
arrangement E.R. Bennett and W.G. Emminger had been working certain of the mining
claims owned by the Co. and operating its said mill until August 31, 1925, when the mill was
shut down by virtue of the writ of attachment mentioned, and that the Co. was unable to
execute a sufficient bond to procure its release. It is further alleged in said complaint, on
information and belief, that unless the property and assets of the Co. are taken under
possession and control of the court, other persons claiming to be creditors of the Co. will
commence suits and seize by writs of attachment and execution the property and assets,
or portions thereof, of the Co., and thereby prevent, hinder, and delay the operation of the
mine and mill of the Co., and that there is great danger that its property and assets will
will be lost, removed, and materially injured, and the business and enterprise of the Co.
49 Nev. 145, 152 (1925) Ex Rel. Nenzel v. District Court
the Co. was unable to execute a sufficient bond to procure its release. It is further alleged in
said complaint, on information and belief, that unless the property and assets of the Co. are
taken under possession and control of the court, other persons claiming to be creditors of the
Co. will commence suits and seize by writs of attachment and execution the property and
assets, or portions thereof, of the Co., and thereby prevent, hinder, and delay the operation of
the mine and mill of the Co., and that there is great danger that its property and assets will
will be lost, removed, and materially injured, and the business and enterprise of the Co. will
be disrupted, broken, and destroyed, and the value of such property greatly diminished. It is
also alleged that the appointment of a receiver to take possession of the assets of the Co. and
to continue the operation of its business and its mines and mill was necessary.
The complaint concludes with the prayer, among other things, that the court appoint a
receiver to take possession of all of the assets of the Co. and that he be authorized and
directed to carry on and conduct the mining and milling operations and business of said Co.
On the day on which said complaint was filed, notice of motion for the appointment of a
receiver for the Co. was accepted by one designating himself as its assistant secretary, who
stipulated that the hearing might be had at the time stated in the notice, though no notice of
such application was given to the attaching creditors of the petitioner sheriff.
Upon the presentation of said matter to the respondent court, it appointed C. T. Stevenson
receiver of the Co. with authority to carry on, manage, conduct, and operate the mines and
mill and the business of said defendant Co., according to the usual course of business of like
character. Several reasons are urged why the alternative writ should be made permanent.
1. At the threshold of this matter, we may say that there are three statutes in this state
authorizing the appointment of receivers of corporations, each intended to apply to a
particular situation, namely: Section 5193, Revised Laws; section 1195, Revised Laws, as
amended in 1923 {Stats.
49 Nev. 145, 153 (1925) Ex Rel. Nenzel v. District Court
in 1923 (Stats. 1923, p. 20, c. 22); and Stats. 1925, p. 307, sec. 47 (c. 177).
In behalf of counsel for respondent, it is contended that the court in appointing the receiver
for the Co. proceeded under provision of the first-mentioned section. Such is clearly the fact.
It is said that even if the court had jurisdiction to appoint a receiver of the Co., the writ
must be made permanent because of the fact that the property was in possession of the
petitioner sheriff, pursuant to a levy under a writ of attachment. In opposition to this
contention, and to nearly every other point made in behalf of the petitioner, the Irving
National Bank Case, 47 Nev. 86, 217 P. 962, is very strenuously urged upon us. Just how that
case can be an authority in the instant matter is more than we can understand. In the first
place, the appointment of the receiver in the matter there under consideration was pursuant to
the act of 1923, supra, and the jurisdiction of the court to make the appointment was not
questioned. But the fact which distinguishes that matter from this, as appears from the
statement of the facts of the case, is that the receiver of the Como Consolidated Mines
Company had taken the property from the possession of the sheriff; while in the instant
matter the receiver is endeavoring to have the sheriff punished for refusing to surrender the
possession of the property to the receiver.
The Irving Bank Case will exemplify the force of the rule recognized in Jensen v. Pradere,
39 Nev. 466, 159 P. 54, to the effect that every opinion must be read as applicable to only the
particular facts of the case in which the opinion is rendered. The rule which we think controls
in this case is stated in State ex rel. J.M. Arthur Mach. Co. v. Superior Court, 7 Wash. 77, 34
P. 430. That was a proceeding in prohibition, as here. The Arthur Co. had caused certain
property of one of its debtors to be attached, as here. Thereafter the court appointed a receiver
of the debtor, whereupon the receiver sought to take the attached property from the sheriff. In
disposing of the prohibition proceeding, the court said: "When a creditor lawfully obtains an
attachment against property by levy of the writ by the sheriff, the law gives him not only
the right to have his debt paid out of the proceeds of that property, but it also gives him
the absolute right to have that property retained intact in the hands of the sheriff until
such time as he may obtain judgment and issue execution.
49 Nev. 145, 154 (1925) Ex Rel. Nenzel v. District Court
When a creditor lawfully obtains an attachment against property by levy of the writ by the
sheriff, the law gives him not only the right to have his debt paid out of the proceeds of that
property, but it also gives him the absolute right to have that property retained intact in the
hands of the sheriff until such time as he may obtain judgment and issue execution. * * *
And, although the superior court has general jurisdiction to appoint all receivers which the
statute or the common law authorizes, it has no jurisdiction to direct a receiver, appointed in
the manner in which this particular receiver was appointed, to take from the possession of the
sheriff the property levied upon by him under the attachment of relator. Therefore, to the
extent of prohibiting the respondents from interfering with the property in the hands of the
sheriff, the writ will be issued.
This is a clear exposition of the law sustained by all of the authorities. The only case cited
sustaining a contrary rule is Irving National Bank Case, supra, where, as pointed out, the
sheriff had lost possession of the property when the writ was applied for.
While in the case of State ex rel. Hunt et al. v. Superior Court, 8 Wash. 210, 35 P. 1087,
25 L.R.A. 354, it is said, There are many cases which hold that a receiver once in possession
[as in Irving National Bank Case] of property cannot be disturbed in such possession, even by
one who has a superior lien thereon, it is in accord with the rule enunciated in the
Washington case previously quoted from. In Pease, Sheriff, v. Smith, 63 Ill. App. 411, it is
said:
The levies not only gave the plaintiff in the executions, and the plaintiffs in the
attachments, if they maintained them, a prior right to the proceeds of the property, but they
gave to the sheriff the prior right to the possession of the personal property levied upon.
Enough cases are cited in High on Receivers, sec. 440, to establish that proposition.
In People v. Finch, 19 Colo. App. 512, 76 P. 1123, the court points out, as in the Illinois
case, that the maintenance of the attachment lien by holding the possession of the property
by the sheriff gives him a superior right to that of the receiver.
49 Nev. 145, 155 (1925) Ex Rel. Nenzel v. District Court
of the property by the sheriff gives him a superior right to that of the receiver. Other
authorities sustaining the rule are Sanders v. Main, 9 Wash. 46, 36 P. 1049; Cherry et al. v.
Western Wash, etc., 11 Wash. 586, 40 P. 136; Ward v. Healy, 114 Cal. 191, 45 P. 1065;
Reynaud v. Walton, 136 La. 88, 66 So. 549; Elwell v. Goodnow, 71 Minn. 390, 73 N.W.
1095; Prentiss Co. v. Whitman & Barnes, 88 Md. 240, 41 A. 49; First Natl. Bank v. Cook, 12
Wyo. 492, 76 P. 674, 78 P. 1083, 2 L.R.A. (N.S.) 1012; Wiswall v. Sampson, 14 How. 52, 14
L. Ed. 322; Walling v. Miller, 108 N.Y. 173, 15 N.E. 65, 2 Am. St. Rep. 400.
2, 3. But it is said on behalf of respondent that the petitioner Nenzel failed to give the
additional bond within the time ordered by the court, and therefore the attachment was
discharged; hence petitioner cannot resist the efforts of the receiver to get possession of the
property. The sheriff having come into possession of the property lawfully and being in the
peaceable possession of it at the time the receiver made the demand for its delivery to him, he
had a right to refuse it to the receiver, even if the attachment had been discharged, since the
appointment of the receiver was null and void, as hereinafter shown. Furthermore, it having
been alleged in the affidavit of contempt filed against Jurgensen and Powell in the district
court that Jurgensen held the property under attachment, we are of the opinion that the
respondent should be estopped from now questioning that allegation.
4. We are not prepared to say, however, that the attachment lien had been discharged. Our
district court rule No. 20 allows amendments, and the defect complained of was cured. See,
also, 6 C.J. 173.
5. Was the respondent without jurisdiction to make the order of appointment which it did?
In this state the appointment of receivers is controlled by statute. As we have pointed out,
there are three statutes authorizing the appointment of receivers. The one under which it is
contended Mr. Stevenson was appointed is section 5193, Revised Laws, which reads: "A
receiver may be appointed by the court in which an action is pending, or by the judge
thereof:
49 Nev. 145, 156 (1925) Ex Rel. Nenzel v. District Court
A receiver may be appointed by the court in which an action is pending, or by the judge
thereof:
1. In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to
subject any property or fund to his claim, or between partners or others jointly owning or
interested in any property or fund, on application of the plaintiff, or of any party whose right
to or interest in the property or fund, or the proceeds thereof, is probable, and where it is
shown that the property or fund is in danger of being lost, removed, or materially injured.
2. In an action by a mortgagee for the foreclosure of his mortgage and sale of the
mortgaged property, where it appears that mortgaged property is in danger of being lost,
removed, or materially injured, or that the condition of the mortgage has not been performed,
and that the property is probably insufficient to discharge the mortgage debt.
3. After judgment, to carry the judgment into effect.
4. After judgment, to dispose of the property according to the judgment, or to preserve it
during the pendency of an appeal, or in proceedings in aid of execution, when an execution
has been returned unsatisfied, or when the judgment debtor refuses to apply his property in
satisfaction of the judgment.
5. In the cases when a corporation has been dissolved, or is insolvent, or in imminent
danger of insolvency, or has forfeited its corporate rights.
6. In all other cases where receivers have heretofore been appointed by the usages of the
courts of equity.
The statute just mentioned is taken from the California statute (Kerr's Cyclopedic Code
Civ. Proc. [1907 ed.] c. 5, sec. 564), and has been often construed by the court of that state,
and naturally such interpretations are of great weight with us. That court has repeatedly held
that at least two things are essential to the appointment of a receiver under the statute
mentioned: First, there must be an action pending in which the application is made; and,
secondly, the petition must state sufficient facts under one of the subdivisions of the
statute mentioned to justify such action.
49 Nev. 145, 157 (1925) Ex Rel. Nenzel v. District Court
is made; and, secondly, the petition must state sufficient facts under one of the subdivisions
of the statute mentioned to justify such action. If there is no action pending in which the
application for the appointment of a receiver is made, the court should not inquire further.
In the French Bank Case, 53 Cal. 495, 553, speaking of the statute in question, it is said:
There is, of course, no such thing as an action brought distinctively for the mere
appointment of a receiver. Such an appointment, when made, is ancillary to or in aid of the
action brought. Its purpose is to preserve the property pending the litigation so that the relief
awarded by the judgment, if any, may be effective. The authority conferred upon the court to
make the appointment necessarily presupposes that an action is pending before it, instituted
by some one authorized by law to commence it.
The views thus expressed have been repeatedly approved by the Supreme Court of
California (Murray v. Superior Court, 129 Cal. 628, 62 P. 191), and such is the settled law of
that state. Such is not only the rule in California, but in every court where a statute such as
ours exists.
In Nebraska, where the statute provides that a receiver may be appointed in a suit actually
commenced and pending, the supreme court, in the case of Vila v. Grand Island, etc., Co., 68
Neb. 222, 94 N.W. 136, 97 N.W. 613, 63 L.R.A. 791, 110 Am. St. Rep. 400, 4 Ann. Cas. 59,
after reviewing many authorities, held in a proceeding merely for the appointment of a
receiver, as in the instant matter, that the court had no jurisdiction to make the appointment.
It would serve no useful purpose to prolong this opinion by reviewing the cases sustaining
the view taken. A long list of authorities sustaining the rule may be found in a note to the
last-mentioned case in 4 Ann. Cas. p. 67.
But it is said that the case of State ex rel. Cameron v. District Court, 48 Nev. 198, 228 P.
617, and Reinhart Co. v. Oklahoma Gold M. Co., 48 Nev. 32, 233 P. 842, are opposed to
such conclusion. In the first case the court simply held that since the court had jurisdiction
of the receivership matter, any error appearing must be corrected on appeal.
49 Nev. 145, 158 (1925) Ex Rel. Nenzel v. District Court
court simply held that since the court had jurisdiction of the receivership matter, any error
appearing must be corrected on appeal. In the instant matter, we hold the court was without
jurisdiction. Nor is there anything in the other case mentioned in conflict with what has been
said in this matter. In that case the appointment of the receiver was not questioned, nor were
the other points disposed of in the instant matter urged.
It is self-evident from the facts stated that no ground for the appointment of a receiver
existed under paragraphs 1 and 2 of the statute quoted. Indeed, one of the counsel for
respondent relies solely upon paragraph 6 of the statute as authority to sustain such
appointment, while the other counsel relies upon the paragraphs 3, 4, and 5.
6. It is said in behalf of respondent that paragraphs 3 and 4 contemplate just such a
proceeding as was pursued in the receivership matter in question; that is, a separate
proceeding after judgment in an action at law to recover on a money demand merely to obtain
the appointment of a receiver. Such is clearly not the case as is pointed out by the Supreme
Court of California in at least two opinions. That court, in Kreling v. Kreling, 118 Cal. 421,
50 P. 549, said:
A receiver is an officer or representative of the court, appointed to take the charge and
management of property which is the subject of litigation before it, for the purpose of its
preservation and ultimate disposition according to the final judgment therein. * * * If he had
not been appointed until after judgment has been rendered, as in the present case, his
functions are limited to the property described in the judgment, either for the purpose of
carrying the judgment into effect, or for its preservation until the judgment shall be
executed.
The said court, in White v. White, 130 Cal. 597, 62 P. 1062, 80 Am. St. Rep. 150, said:
The power, under subdivision 3 (a new provision of the code), to appoint a receiver after
judgment to carry the judgment into effect,' applies only to cases where the judgment affects
specific property. * * * The provision has no application to a simply money judgment.
49 Nev. 145, 159 (1925) Ex Rel. Nenzel v. District Court
provision has no application to a simply money judgment. In such case the writ of execution
furnishes an ample sufficient remedy, and is the only means provided.
See, also, Davis v. Flagstaff, etc., 2 Utah, 74, 93.
7. It is contended that the court had authority pursuant to paragraph 5 of the section
quoted. The supreme court of California had this paragraph under consideration in the French
Bank Case, supra, where it was held that mere insolvency did not give the court jurisdiction
to appoint a receiver over the property of a corporation; the court saying:
But there is no statute in this state, none to which we have been pointed, which
undertakes to confer upon a private person, either as stockholder or creditor, the right to
maintain an action to dissolve a corporation upon the ground that it is insolvent, or to obtain
relief by seizing its property out of the hands of its constituted management, and placing it in
the hands of a receiver.
Such has been the uniform holding, for many years, as pointed out in the case of Murray v.
Superior Court, supra, and since the paragraph in question was incorporated in our act by the
revision of 1911, and taken from California (as appears from note to section 5193, Revised
Laws), long after the decision in the French Case and the Murray Case, and many others,
construing the section as stated, we feel bound by them.
8. As to the contention that pursuant to paragraph 6 the court was authorized to make the
appointment under its general equity jurisdiction, we need only say that where it does not
appear, as in this case, that the plaintiff has no adequate remedy at law, a court of equity
acquires no jurisdiction. The general rule on this point is stated in Tardy's Smith on Receivers
(2d ed.), in section 9, as follows:
Following the principles appertaining to equity jurisdiction, it is a fundamental rule that a
receiver will not be appointed if the plaintiff has a full and adequate remedy at law in respect
to his alleged rights.
See, also, 14a C.J. 947; 8 Fletcher's Cyc. Corp. par. 5262; High on Receivers (4th ed.), sec.
399.
49 Nev. 145, 160 (1925) Ex Rel. Nenzel v. District Court
Even the case of Merrifield v. Burrows, 153 Ill. App. 523, so much relied on by the
respondent, recognizes this rule. The case just mentioned is dissimilar in its facts from the
instant case and throws no light upon the situation before us. There is no allegation in the
complaint in the receivership matter of fraud, collusion, mismanagement, or any other
allegation going to show that the board of directors of the company are incapable, unwilling,
or neglectful in the performance of their duties, or that the Co. has suffered, or is about to
suffer, through any neglect or oversight on their part.
We think it affirmatively appears from the complaint in the receivership matter that the
plaintiff has an adequate remedy at law. There is no allegation of facts charging the
insolvency of the Co., and if there were, mere insolvency is no ground for the appointment of
a receiver under the statute in question. On the other hand, it is alleged in the complaint that
the claims upon which the attachments were issued are fictitious, and in addition to this, it is
alleged that the property and assets of the Co. are such that enough money can be realized
from them, without the necessity of sale, if properly managed, to discharge all of the
liabilities of the Co. The complaint itself shows that the Co. has a valuable property, against
which no valid lien is asserted, yet the plaintiff has made no effort to levy upon the property,
or any part of it under an execution. How, in the face of this, can it be said that a court of
equity ever acquired jurisdiction to appoint a receiver?
It seems that the real purpose of the receivership is to take over and manage and operate
the property. How can a court, under its general equity jurisdiction, take over the property of a
corporation, manage and operate it when there is no intimation of the incapacity, neglect,
unwillingness, or other fact charging that the business of the company would suffer in the
hands of its officers? The theory is, of course, that the Co. cannot operate the mill while it is
in the custody of the sheriff. But neither can the receiver. It appears from the complaint that
the officers of the Co. are defending the attachment suit, and if it is fictitious, as charged,
the attachment will be discharged in due time.
49 Nev. 145, 161 (1925) Ex Rel. Nenzel v. District Court
and if it is fictitious, as charged, the attachment will be discharged in due time. A receiver
could do no more, except incur large expense. Nor is there any foundation for the allegation
that there will be great loss to the Co. The mineral in the ground will not dissolve or
evaporate, and it is not claimed that any of the personal property is perishable, and the sheriff
is liable on his bond for its safe-keeping. From no standpoint can we see that the court was
justified in appointing a receiver.
The court was without jurisdiction to appoint a receiver, and all proceedings therein are
null and void, including the order requiring the petitioners, Powell and Jurgensen, to show
cause why they should not be punished for contempt; hence the alternative writ is made
permanent.
April 8, 1926.
Per Curiam:
Rehearing denied.
____________
49 Nev. 161, 161 (1925) Martin v. Dixon
MARTIN v. DIXON
No. 2685
December 5, 1925. 241 P. 213.
1. ActionSuit Held One in Equity to Compel Transfer of Stock or in Alternative for
Damages.
Complaint, alleging that defendant, who had been plaintiff's attorney, obtain certain corporation stock,
and concealed such fact from plaintiff, and placed shares of such stock to his own credit, and asking for
judgment for return of stock, or, in lieu thereof, for its value, and for damages, and for general equitable
relief, held one in equity to compel transfer of stock or in the alternative for damages for conversion and
detention thereof.
2. CorporationsThat Person Suing to Compel Transfer of Stock Failed to Establish
Damages Held Not to Preclude Court from Compelling Transfer of Stock.
That plaintiff suing to compel transfer of stock to him did not establish damages did not preclude
court from compelling transfer of stock if facts warranted, and decree therefor was not in excess of court's
jurisdiction.
3. EvidenceAdmission of Documents in Another Case as Admission against Interest Held
Proper.
In suit against plaintiff's former attorney to compel transfer of corporation's stock, where complaint
showed contractual relation between plaintiff and defendant, and that such stock was
affected with trust in favor of plaintiff, admitting documents in another case in
which present defendant was codefendant with plaintiff as admission against
interest of present defendant held proper.
49 Nev. 161, 162 (1925) Martin v. Dixon
relation between plaintiff and defendant, and that such stock was affected with trust in favor of plaintiff,
admitting documents in another case in which present defendant was codefendant with plaintiff as
admission against interest of present defendant held proper.
4. Attorney and ClientAttorney Buying Stock to which Client Had Right Not Entitled to
Claim that Client Should Reimburse Him for Money Paid for It.
In suit by client against his former attorney to compel transfer of stock which was affected with trust
in plaintiff's favor, defendant was not entitled to claim that plaintiff should reimburse him for money
which he paid out to acquire stock, and hold it adversely to plaintiff.
5. Attorney and ClientAttorney Cannot Allow Personal Interest To Be Antagonistic to
Client.
Attorney cannot allow personal interest to be antagonistic to interests of client.
6. Attorney and ClientAttorney Purchasing or Acquiring Interest in Property Subject to
Litigation Holds as Trustee for Client.
Whether during time attorney is acting as such or after such relations have ceased, and whether with
client's money or his own money he purchases or acquires subject of litigation, equity will decree that he
holds such interest as trustee for client.
7. Attorney and ClientBurden of Showing Nonexistence of Fiduciary Relation Held to
Rest on Attorney who Purchased Stock in which Client Had Interest.
Where attorney purchased stock, subject of litigation, in suit by client to compel transfer of stock to
him, burden of severing his fiduciary relation from transaction in which he had personal interest was on
attorney.
8. Attorney and ClientProof of Purchase of Stock, Subject of Litigation, by Attorney Held
to Entitle Client to Transfer Thereof without Proof of Actual Fraud.
On evidence showing that attorney purchased stock, subject of litigation, for his own advantage, client
was entitled to return thereof without proof of actual fraud.
9. Attorney and ClientJudgment Requiring Attorney to Return Stock, Subject of
Litigation, Purchased by Him, to Client Held Proper.
In suit by client to compel return of stock, subject of litigation, purchased by attorney, where attorney
failed to sustain burden of showing that purchase by him was fair and honest, and that client was fully
apprised of his rights, and effect and consequence of his acts, judgment requiring transfer of stock to
client was proper.
See (1) 1 C.J. sec. 174, p. 1044, n. 44; (2) 21 C.J. sec. 138, p. 157, n. 52 (new); (3) 22 C.J. sec. 370, p. 329, n.
55; (4, 5, 6, 7, 8, 9) 6 C.J. sec. 208, p. 682, n. 88 (new), 90, 91; sec. 213, p. 689, n. 40; sec. 214, p. 689,
n. 44; sec. 259, p. 710, n. 17 (new).
49 Nev. 161, 163 (1925) Martin v. Dixon
Appeal from Second Judicial District Court, Washoe County; James A. Callahan, Judge.
Suit by Joseph Martin against J.B. Dixon. Judgment for plaintiff, and defendant appeals.
Affirmed.
Sardis Summerfield, for Appellant:
Allegations of complaint are all characteristic of trover for conversion. Rule stated in
Dixon v. S.P. Co., 42 Nev. 81, and earlier cases, is carefully set out, but later paragraphs
make claim for special damages as stated in Ward v. Carson etc. Co., 13 Nev. 62. Plaintiff did
not avail himself of special provisions of Rev. Laws, 5124 to 5135, for obtaining converted
property. He cannot now claim delivery and rely on measure of damages for conversion.
There being no evidence on which damages could be calculated, judgment ought to have been
for defendant, or merely nominal damages for plaintiff. Dixon v. S.P. Co., supra.
By many decisions proper remedy for conversion lies in trover.
Allowance of damages is only remedy our courts have power or jurisdiction to grant.
Judgment is in excess of jurisdiction. Cases supra; 26 R.C.L. 1105.
Courts should authorize amendments to make case as intended originally, but not to insert
new or distinct cause of action or defense. Nevada Mng. Co. v. Rae, 47 Nev. 173.
Fraud must be proved as alleged; court cannot permit substantial variance. Fraud is never
presumed. Gruber v. Baker, 20 Nev. 476.
Client's right to attorney's purchase must be exercised within reasonable time or is waived,
particularly where there is no moral turpitude on attorney's part, because delay may affect
parties to transaction or value of property. By dealing with attorney as owner, client may
ratify act and estop himself. 6 C.J. 682, 685.
John S. Sinai, for Respondent:
Relation of attorney and client is one of highest trust and confidence.
49 Nev. 161, 164 (1925) Martin v. Dixon
and confidence. If good faith of attorney is attacked by client, burden shifts and it is
incumbent on attorney to prove perfect good faith. Attorney must give client all information
and advise which it would be his duty to give if uninterested. Client has right to treat all acts
of attorney concerning interests entrusted to him as being for client's benefit. Attorney must
not receive any benefit from subject matter at expense of client even if there is no actual
fraud. Attorney cannot use for his own benefit, as against client, information acquired in
professional capacity. He cannot represent conflicting interests. His business transactions
with client are scrutinized with jealous care. Exception to general rule that knowledge of
attorney is knowledge of client exists where attorney is acting in his own interest as opposed
to client's. Purchase by attorney without consent of client, of interest in thing in controversy,
is usually forbidden. 6 C.J. 682, 686; 2 R.C.L. 966; 1 Page on Contracts, 685; Gibson v.
Gayes, 6 Ves. 278; Baker v. Humphreys (U.S.), 25 L. Ed. 1067; 4 A.L.R. 1618.
Where bill if filed to set aside contract or deed between parties standing in confidential
relation, defense of laches is not regarded with favor. 2 R.C.L. 970.
Where it is plain from answer that if demand had been made it would have been refused, it
does not lie in mouth of defendant to object that no demand was made. Cox. v. Dalmas, 33
Pac. 836.
Stock sued for is not in certificate form but is intermingled with other shares and cannot be
described as required by Rev. Laws, 5124-5135. Action in conversion and in claim and
delivery can be filed in one suit, particularly under direct allegation of fraud in conversion,
but action in claim and delivery is not proper to recover intermingled property. Ashton v.
Haydenfeldt, 56 P. 624.
OPINION
By the Court, Sanders, J.:
This is a controversy between Joseph Martin, respondent, plaintiff below, and J.B. Dixon,
appellant, defendant below, over certain shares of the capital stock of the Wedekind Mines
Company, a corporation, which shares of stock are referred to in the case as the
"Englander stock."
49 Nev. 161, 165 (1925) Martin v. Dixon
below, over certain shares of the capital stock of the Wedekind Mines Company, a
corporation, which shares of stock are referred to in the case as the Englander stock. The
case was tried without a jury. The court found in favor of the plaintiff and against the
defendant, and ordered the defendant to transfer to the plaintiff 142,166 2/3 shares of the
capital stock of said corporation standing in his name upon its books, and ordered the
defendant to pay to the plaintiff the sum of $1 nominal damages. The case is here upon the
defendant's appeal from said judgment or order, and also from an order denying the
defendant's motion for new trial.
The principal assignments of errors make it necessary to review the complaint and the
court's findings of facts at length.
1. We do not take seriously the contention that the court erred in permitting the plaintiff
upon the close of his case to amend his complaint to conform to the evidence. The complaint,
as amended, shows that in May, 1909, the plaintiff employed the defendant, an attorney at
law, to bring actions and collect wages from Sparks Mining Company and Desert King
Mining Company on contingent fees of 50 per cent on the recoveries, plaintiff to pay all
disbursements under written contract, which contract is made a part of the complaint; that in
May, 1910, the defendant obtained judgments in plaintiff's favor in the federal court of this
district against said debtor companies, aggregating in amounts the sum of $5,395; executions
issued on these judgments, and on July 2, 1910, the plaintiff acquired full title to all the
properties by a Marshal's deed. The complaint shows that, prior to the acquirement of title,
upon the advise of the defendant, it was deemed for the best interests of the parties to
organize a corporation to take over the properties of the debtor companies in contemplation
of their becoming purchasers thereof at said execution sales. On June 29, 1910, the Wedekind
Mines Company was organized under the laws of this state, with a capital stock of 1,000,000
shares, of the par value of $1 each. On July 2, 1910, all the properties so purchased were
conveyed to the corporation in consideration of the issuance to Martin and Dixon of its
entire capital stock.
49 Nev. 161, 166 (1925) Martin v. Dixon
were conveyed to the corporation in consideration of the issuance to Martin and Dixon of its
entire capital stock. On July 2, 1910, by a verbal agreement and understanding between the
parties, 149,000 shares of the capital stock of the corporation were placed to the credit of its
treasury, and the remaining 851,000 shares were distributed as follows: 566,666 2/3 shares
were issued to one H. M. Englander under a written agreement between Englander and the
parties, and 283,333 1/3 shares were issued to Martin and Dixon jointly. The said Englander
agreement is referred to in the complaint as an option, for which Englander paid the parties a
cash consideration of $2,000. One of the considerations for said option was that within 12
months from its date Englander should sell the holdings of the corporation for $250,000,
which sum, in the event of sale, was to be divided between the parties in proportion to their
stock holdings. The option further provided that, if the property of the corporation was not
unwatered or sold within 12 months from the date of the contract, Martin had the right to
repurchase the Englander stock upon payment of the costs and expenses incurred by
Englander in connection with the corporation. Upon information and belief the complaint
alleges that the Englander contract at the time of suit was in the possession of the defendant.
It further alleges that the option was not exercised by Englander, and that the property was
not sold, and that by reason of the failure of Englander to exercise the option and to comply
with its terms and conditions the stock issued to Englander reverted to the parties in
accordance with the terms and conditions of the option. It alleges that the defendant obtained
the Englander stock, concealed the fact from the plaintiff and placed the full number of shares
of said stock to his own credit, under his own name and to his own use, benefit, and
advantage, and against the use, benefit, and advantage of the plaintiff; that by reason of the
conversion of said stock and the withholding thereof from the plaintiff the defendant had
unlawfully and fraudulently assumed control of the affairs of the corporation against the
interests of the plaintiff, elected himself president and general-manager of the
corporation, and conducted its business, and held meetings of its directors without notice
to the plaintiff.
49 Nev. 161, 167 (1925) Martin v. Dixon
trol of the affairs of the corporation against the interests of the plaintiff, elected himself
president and general-manager of the corporation, and conducted its business, and held
meetings of its directors without notice to the plaintiff. The complaint shows that in April,
1917, the defendant gave plaintiff a certificate for 283,333 1/3 shares of the capital stock of
the corporation, which shares of stock were less than one-third of the outstanding stock of the
corporation, and refused upon demand to give to plaintiff any part or portion of the Englander
stock. It alleges that plaintiff at the time of the conversion of said stock was and is now the
owner thereof and entitled to its rightful possession and use, and that the reasonable value of
said 142,166 2/3 shares was $40,000. The complaint charges that by reason of the defendant's
wrongful use of said stock the Wedekind Mines Company brought an action against the
plaintiff and ousted him from the possession and occupancy of the premises of the
corporation, to his damage in the sum of $7,000, and that by reason of the wrongful, illegal,
and fraudulent conversion and detention of said stock the plaintiff was damaged in the sum of
$20,000. The complaint asks judgment of the court for the return of the stock in controversy
or, in lieu thereof, its alleged value, and demands judgment for the damages alleged in the
complaint, and for general equitable relief.
The question for determination is, what is the nature of the action? The defendant contends
that in form the cause of action stated in the complaint is in trover, and, there being no proof
of damages, the court below exceeded its jurisdiction in compelling the defendant to return to
the plaintiff the shares of stock in controversy. It is true the complaint contains allegations
that may make it good as an action in trover, but, if we treat the case as in trover, then the
very foundation of the complaint, in so far as it asks for the return of the stock, is, destroyed.
If the action is to be treated as one in trover, all the allegations of the complaint setting forth
the contractual relation of the parties to each other and their relation to the subject matter of
the suit must be regarded as surplusage.
49 Nev. 161, 168 (1925) Martin v. Dixon
their relation to the subject matter of the suit must be regarded as surplusage.
2. We are convinced that the proceeding was one in equity to compel the transfer of certain
shares of stock to the plaintiff; and, if said stock could not be transferred, then asking a decree
for compensation and damages for the wrongful use made by the defendant of the stock, and
for its conversion and detention. The fact that the plaintiff failed to establish damages did not
preclude the court from exercising its equitable power and jurisdiction to compel the return of
the stock to plaintiff, if the facts warranted. The court's verdict was that the plaintiff was the
owner, and rightfully entitled to the possession and use of the stock in controversy, but was
not entitled to damages. Since the proof shows the defendant to be in position to make return
of the stock, whatever the action may be called, the court did not exceed its jurisdiction in
rendering the decree it did.
We shall now advert to the court's finding. The arguments advanced in opposition to them
are that they are based largely upon evidence foreign to the cause of action stated in the
complaint, and upon evidence that changed completely the nature of the cause of action, and
that the evidence does not support the findings. We deem it unnecessary to review the
evidence. It is sufficient to say that, if it were such as to be admissible under the averments of
the complaint, it supports the findings.
3. The argument is advanced that the court below erred in admitting in evidence the
pleadings, files, and exhibits in a former action referred to herein as the Englander case,
wherein the Wedekind Mines Company, H.M. Englander, and C.S. Denson were plaintiffs,
and J.B. Dixon and Joseph Martin were defendants. It is contended that the purpose and the
legal effect of this documentary evidence was to change, and did change, the nature of the
cause of action.
This contention can be attributed only to the view urged by counsel that the complaint in
form is solely in trover, which view we have declined to accept. The record discloses that the
admission of the documents complained of came about in this way: The complainant had
alleged that the Englander contract at the time of suit was in the defendant's possession;
that the defendant obtained the Englander stock covered by the Englander option
contract, and concealed the fact from the plaintiff.
49 Nev. 161, 169 (1925) Martin v. Dixon
complained of came about in this way: The complainant had alleged that the Englander
contract at the time of suit was in the defendant's possession; that the defendant obtained the
Englander stock covered by the Englander option contract, and concealed the fact from the
plaintiff. It developed on the trial that the Englander stock was made the subject matter of the
Englander case; that in that case Dixon acted as attorney for himself and his codefendant
Martin, and filed on behalf of Martin his answer and counterclaim, in which he set up the
Englander contract, and alleged its breach, and demanded the return to Dixon and Martin of
all the Englander stock upon Martin's offer to do equity in accordance with its terms and
conditions. In the Englander case Dixon, in addition to his separate answer, filed therein his
own affidavit, in which he deposed that all the averments contained in Martin's answer and
counterclaim were true of his own knowledge. It developed on the trial of this case that, while
the Englander case was at issue, Dixon entered into negotiations with Englander's attorney for
the purchase of the Englander stock, and in January, 1914, purchased said stock by paying
therefor $4,400 of his own money, and that upon its purchase Englander and his coplaintiff
filed a retraxit, and Martin and Dixon, filed a release to Englander and his coplaintiff, and the
Englander case was dismissed. The record discloses that the documents were admitted in
evidence, for the reason that, when Dixon obtained the Englander stock, the relation of
attorney and client subsisted between Dixon and Martin, and that the documents contained
admissions against Dixon's interests in this action. While the complaint does not aver that
Dixon obtained the Englander stock in violation of the relationship of attorney and client, it
does sufficiently appear that the contractual relation between the parties and their relation to
the Englander stock was impressed with a trust, and we are of opinion that the documents,
instead of changing the nature of the action, furnished a further and higher ground for the
court to compel Dixon to return to Martin his part or portion of the Englander stock.
49 Nev. 161, 170 (1925) Martin v. Dixon
Martin his part or portion of the Englander stock. The documents were properly admitted in
evidence.
4, 5. It is argued on the part of defendant that in any view of the evidence the plaintiff
should have been required to reimburse the defendant for one-half the cost of the Englander
stock. An attorney cannot allow his personal interests to be antagonistic to those of his client.
Counsel for the defendant stresses the fact that Martin testified that Dixon told him he held
the Englander stock and intended to do as he pleased with it. We do not see that this
statement affected in the least Martin's right to the stock. The statement of Dixon evinced his
intention to hold Martin's interest within his grasp and make use of his power to his own
advantage and to Martin's detriment. If the purchase of the Englander stock was not under the
circumstances intended as fraud, it had that effect on Martin. Dixon paid $4,400 for the
Englander stock, not for Martin, but to acquire absolute title for himself, and to hold it
adversely to Martin. Convicted of these acts by the court's verdict, he is in no position to say
the court erred in not compelling Martin to reimburse him for money which he used in an
effort to overreach and defraud his client. Courts of conscience will do no such thing. Henyan
v. Trevino (Tex. Civ. App.), 137 S.W. 458.
6-9. It is contended, however, that the relation of attorney and client had ceased, and that
the court found that Dixon's contract of employment as attorney was completed, and therefore
the court erred in basing its findings largely upon the ethical phases of the case made by the
proof and not shown by the complaint. The authorities are uniform in holding that, whether
during the time an attorney is acting as such or after such relations have ceased, and whether
with his client's money or with his own money he purchases or acquires an interest in the
property, in any way the subject of litigation, a court of equity will decree that he holds such
interest as trustee for the client. Stanwood v. Wishard (C.C.), 128 F. 502; Thornton on
Attorneys at Law, sec. 169. It is true the complainant did not ask that the Englander stock be
impressed with a trust in his favor, but the rule which requires the utmost fairness and
good faith in dealings between attorney and client must be applied as long as the
influence arising from the relationship exists, although this may extend beyond the
continuance of the relationship itself.
49 Nev. 161, 171 (1925) Martin v. Dixon
that the Englander stock be impressed with a trust in his favor, but the rule which requires the
utmost fairness and good faith in dealings between attorney and client must be applied as
long as the influence arising from the relationship exists, although this may extend beyond
the continuance of the relationship itself. 6 Corpus Juris, p. 689. The burden of severing his
fiduciary relationship from the Englander transaction in which he had a personal interest was
cast upon Dixon. Youngquist v. Hunter, 227 Ill. App. 152. The evidence in this case shows
that Dixon purchased the stock for his own advantage and to the disadvantage of Martin,
which entitled Martin to the return of the stock, without proof of actual fraud. Thornton on
Attorneys at Law, sec. 156. Dixon having failed, in the judgment of the trial court, to sustain
the burden cast upon him to show that the transaction was fair and honest, and that Martin
was fully apprised of his rights, and the effect and consequences of his acts, we conclude
upon the whole case that the trial court discharged its full duty in requiring Dixon to transfer
to the plaintiff the shares of stock in controversy, and we shall best discharge our duty by
affirming its judgment.
It is so ordered.
____________
49 Nev. 172, 172 (1926) Water Co. v. Belmont Dev. Co.
WATER CO. v. BELMONT DEV. CO.
No. 2714
January 5, 1926. 241 P. 1079.
On Motion to Strike
1. Exceptions, Bill ofSettlement of Proposed Amendment to Bill of Exceptions Not
Authorized after Time Has Expired, Nor Can It Be Allowed as Amendment to Transcript, where It
Corrects No Error in Transcript.
A proposed amendment to bill of exceptions, containing principally proceedings on motion for new
trial, cannot be settled and allowed as a bill of exceptions under Stats. 1923, c. 97, secs. 1, 5, after time
for such settlement has expired, nor can it be allowed as an amendment to the transcript of testimony filed
in lieu of bill of exceptions, where matter contained therein would not correct any error in transcript.
2. Appeal and ErrorProceedings Regarding Motions for New Trial Have No Place in
Transcript.
Proceedings regarding motions is for new trial held long after trial, and after transcript had been made
and certified by reporter, are not part of transcript, and hence cannot be held to have been erroneously
omitted therefrom; court reporters, under Stats. 19201921, c. 57, being under no duty to transcribe
instructions given and refused and proceedings on motions for new trial in a civil action.
3. Exceptions, Bill ofOrder Granting Leave to Amend Bill of Exceptions Held Not to
Extend Time for Filing Amendment or Addition to Bill.
Order of court granting leave to amend bill of exceptions does not operate as an extension of time in
which to serve and file an amendment or addition to the bill of exceptions, where order was made after
time for filing bill of exceptions had expired, under Stats. 1923, c. 97, sec. 1.
4. Exceptions, Bill ofNo extension of Time Necessary for Correction of Error in
Transcript.
Under Stats. 1923, c. 97, sec. 1, no extension of time is necessary for correction of an error in
transcript, which may be ordered at any time by trial court on motion duly noticed, while matter is under
its control.
5. Appeal and ErrorCertification of Amendment to Bill of Exceptions, Not Filed in Time,
and Containing Matter Not Properly Part of Transcript, Will Not Be Ordered.
Under Stats. 1923, c. 97, secs. 1, 5, supreme court is not authorized to order trial court to certify
proposed amendment to bill of exceptions which was filed after time for filing bill of exceptions had
expired, and which contained proceedings on motion for new trial not properly part of transcript.
6. Appeal and ErrorAmendment to Bill of Exceptions Not Considered Part of Record
without Certification.
Proposed amendment to bill of exceptions cannot be considered as part of record on appeal without a
certificate by trial court, required by Stats. 1923, c. 97, sec. 5.
49 Nev. 172, 173 (1926) Water Co. v. Belmont Dev. Co.
7. Appeal and ErrorAmendment to Bill of Exceptions Containing Proceedings on Motion for New Trial
Cannot Be Considered as Correction of Record on Appeal.
Where record on appeal is complete, proposed amendment to bill of exceptions containing
proceedings on motion for new trial cannot be considered as a correction of record on appeal, since
supreme court is not empowered under Stats. 1923, c. 97, sec. 5, to add or detract from record; purpose
of sec. 5 being mandatory.
8. Exceptions, Bill ofAdmission of Service on Amendment to Bill of Exceptions Held Not to Operate as a
Waiver of Delay in Filing It.
Where proposed amendment to bill of exceptions constituting in reality an addition to bill was served
after time for filing bill of exceptions had expired, so that trial court was without jurisdiction to allow it,
admission of service thereon without reserving objections did not operate as a waiver of delay in serving
and filing it.
9. Appeal and ErrorAct Completely Revising Previous Enactment Held to Repeal It.
Stats. 1915, c. 142, secs. 11, 12, prescribing contents of record on appeal, constituting a complete
revision of civil practice act, sec. 414, in some respects conflicting therewith, in effect repeals sec. 414,
though such section is not one of the sections expressly repealed by Stats. 1915, sec. 15.
10. Appeal and ErrorOrder Denying Motion for New Trial Not Stricken, though Contained
in Improper Amendment to Bill of Exceptions.
Though proposed amendment to bill of exceptions cannot be considered on appeal, a copy of an order
denying motion for new trial contained therein should not be stricken, since such order is properly a part
of record on appeal by virtue of Stats. 1915, c. 142, sec. 11.
See 4 C.J. sec. 1698, p. 95, n. 71; sec. 1880, p. 269, n. 13; sec. 1882, p. 271, n. 32; sec. 1892, p. 282, n. 16; sec.
2130, p. 426, n. 89; sec. 2239, p. 492, n. 68; sec. 2241, p. 494, n. 79; 36 Cyc. p. 1079, n. 46.
Appeal from Fifth Judicial District Court, Nye County; Frank T. Dunn, Judge.
Action by the Water Company of Tonopah against the Tonopah Belmont Development
Company. Judgment for plaintiff, and defendant appeals. On respondent's motion to strike a
purported amendment to appellant's bill of exceptions. Motion denied in part, and granted
in part.
Forman & Forman, for Movant:
Rev. Laws 5366 was repealed in toto by Stats. 1915, c.
49 Nev. 172, 174 (1926) Water Co. v. Belmont Dev. Co.
c. 142, which was amended by Stats. 1923, c. 97. By latter act legislature intended to
simplify practice and make bill of exceptions only method, as held by unbroken line of
decisions to effect that when appeal is from order overruling motion for new trial and there is
no bill of exceptions or statement on appeal there is nothing to review. Some kind of
settlement of disputed questions must be presented, and opposing party must have chance to
amend. Ward v. Silver Peak, 39 Nev. 90; State v. Eberhart Co., 6 Nev. 186.
Practice act of 1911, as amended by Stats. 1915 and 1923, did away with statements on
appeal. Ward v. Silver Peak, supra. This left only two methods, and 5356 was not alternative
method from order overruling motion for new trial. This court held in Mexican etc. Co. v.
Schultz, 45 Nev. 260, that prior to supplementary act of 1915 and subsequent to act of 1911 it
is held adversely to contention that no statement or bill was required for lower court to decide
motion for new trial, and if appellant had furnished certified copies of papers used, appeal
from order must be considered on merits.
Even if court holds 5356 is not repealed, motion should be granted as papers sought to be
stricken have no place in record because only motion for new trial and memorandum of errors
were presented to court.
Act of 1915 repealed all provisions of law in conflict therewith.
Brown & Rowson, for Appellants (Respondents herein):
Practice act of 1911 covered whole field of civil practice except proceedings in probate,
etc. Act of 1915 amended act of 1911 in certain limited particularsonly nine of the
thirty-nine sections relating to appeals were repealed. If it intended to repeal Rev. Laws 5356
it would have said so. Sole object of section 11 of act of 1915 was to repeal section 396 of act
of 1911, which calls for bill of exceptions and order, while former calls for statement, or bill
of exceptions, order, affidavit, pleadings used, all other papers on motion, written opinion on
motion and notice of appeal, and provides if they are not furnished appeal must be
dismissed.
49 Nev. 172, 175 (1926) Water Co. v. Belmont Dev. Co.
opinion on motion and notice of appeal, and provides if they are not furnished appeal must be
dismissed. There must be positive repugnancy to effect repeal by implication. 52 R.C.L. 921.
Rev. Laws, 5356, is not repealed by Stats. 1923, c. 97, but is in full force. Raine v. Ennor,
39 Nev. 72. It provides alternative method with latter statute.
Judge's certificate to his own order giving leave to amend is mere surplusage. Clerk
certifies documents. Statute does not say amendment must be certified.
Right to object is waived by admitting service. Delay may be waived. Jurisdiction does not
depend on prompt service of bill of exceptions. Mellan v. Messenger, 48 Nev. 235.
OPINION
By the Court, Ducker, J.:
This is a motion on the part of respondent to strike what purports to be an amendment to
the bill of exceptions. The document attacked was filed together with a transcript of
testimony and proceedings and the judgment roll on August 4, 1925, and contains the
following papers: Charge to jury; refused instructions; notice of intention to move for new
trial; affidavit in support of motion for a new trial; memorandum of errors in motion for a
new trial; ruling on motion for a new trial; order denying motion for a new trial and refusing
to grant new trial; motion to amend transcript proceedings; certificate of clerk; stipulation of
counsel; certificate of clerk as to no objection; admission by counsel of service. The motion is
made upon the following grounds: (1) That the amendment to bill of exceptions is not
certified in any manner as required by law; (2) that is was not served or filed within the time
within which a bill of exceptions may by law be served and filed; (3) that it is not an
amendment of the original bill of exceptions filed in said cause, and the certificate to original
bill of exceptions does not purport to cover the matter contained in said amendment; (4) that
the filing of said amendment did not correct any error in the original bill of exceptions, but
relates only to matters not included therein and matters subsequent to the certification of
the said original bill of exceptions.
49 Nev. 172, 176 (1926) Water Co. v. Belmont Dev. Co.
the original bill of exceptions, but relates only to matters not included therein and matters
subsequent to the certification of the said original bill of exceptions.
In opposition to the motion to strike, counsel for appellant filed his affidavit, showing,
among other matters, that a motion for a new trial was made and the motion denied May 8,
1925; that on May 25, 1925, appellant served and filed in the trial court the bill of exceptions
comprising a transcript of the testimony and proceedings given and had at the trial of the case,
duly certified by the court reporter; that on June 15, 1925, appellant served and filed in the
trial court a motion and notice of motion to amend said bill of exceptions in certain
particulars therein specified; that on July 1, 1925, the trial court made and filed an order
granting leave to amend; that on July 2, 1925, the appellant served and filed in the trial court
the proposed amendment to the bill of exceptions duly certified by the clerk of the court, and
on July 7, 1925, appellant served and filed in the trial court its notice of appeal and
undertaking on appeal, and for stay of proceedings. The affidavit further shows that on July 9,
1925, counsel for appellant presented to the trial judge a certificate to be attached to said
amendment to bill of exceptions in the form prescribed by the statute for certifying to bills of
exceptions, and requested the said judge to sign said certificate, which the judge refused to
sign; that thereafter, on July 20, 1925, counsel for appellant requested said judge to sign a
certificate, which was in the following form, to wit:
Judge's Certificate to Amendments to Bill of Exceptions.
I, Frank T. Dunn, judge of the district court of the Fifth judicial district of the State of
Nevada, in and for the county of Nye, do hereby certify that the above and foregoing
amendments to the bill of exceptions or transcript of proceedings herein, consisting of the
various documents mentioned in the index preceding page 1 hereof, be and the same are
hereby settled and allowed as amendments to said bill of exceptions or transcripts of
proceedings, and I further certify that said amendments are correct, and, conjunctively
with said transcript of proceedings filed herein on the 25th day of May, 1925, contain the
substance of the proceedings relating to the point or points involved, and fully and
accurately state the proceedings under consideration.
49 Nev. 172, 177 (1926) Water Co. v. Belmont Dev. Co.
allowed as amendments to said bill of exceptions or transcripts of proceedings, and I further
certify that said amendments are correct, and, conjunctively with said transcript of
proceedings filed herein on the 25th day of May, 1925, contain the substance of the
proceedings relating to the point or points involved, and fully and accurately state the
proceedings under consideration. Done this 20th day of July, 1925, nunc pro tunc as of July 9,
1925.
and that the said judge declined to sign the same, stating that he had no power to extend
time for that purpose; that thereafter, on diverse dates to and including July 29, 1925, counsel
for appellant requested said judge to sign said certificate and also a certificate to the record on
appeal, which the trial judge declined to do.
The transcript of the testimony and proceedings certified by the court reporter, the
judgment roll certified by the clerk, and the proposed amendment to the bill of exceptions,
also certified by the clerk, are marked, respectively, volumes 1, 2, and 3.
Counsel for appellant contends that it was the duty of the judge of the lower court to
certify as requested, and that this court is authorized to compel him to do so, or may consider
volume 2 a proper amendment without such certification. These contentions are based on
sections 1 and 5 of an act regulating proceedings on motions for new trials and on appeals in
civil actions, found on pages 163 and 164 of the Statutes of 1923, and which read:
Section 1. At anytime after the filing of the complaint and not later than twenty (20) days
after the final judgment, or if a motion be made for a new trial, then within twenty (20) days
after the decision upon such motion, any party to an action or special proceeding may serve
and file a bill of exceptions to such judgment or any ruling, decision, order, or action of the
court, which bill of exceptions shall be settled and allowed by the judge or court, or by
stipulation of the parties, by attaching thereto or inserting therein a certificate or stipulation
to the effect that such bill of exceptions is correct, contains the substance of the
proceedings relating to the point or points involved and has been settled and allowed, and
when such bill of exceptions has been so settled and allowed it shall become a part of the
record in such action or special proceeding.
49 Nev. 172, 178 (1926) Water Co. v. Belmont Dev. Co.
certificate or stipulation to the effect that such bill of exceptions is correct, contains the
substance of the proceedings relating to the point or points involved and has been settled and
allowed, and when such bill of exceptions has been so settled and allowed it shall become a
part of the record in such action or special proceeding. A transcript of the proceedings
certified by the court reporter to be full, true, and correct transcript thereof may be filed in
lieu of such bill of exceptions and when so filed shall be and constitute the bill of exceptions
without further stipulation or settlement by the court; provided, however, that on motion duly
noticed, the court may at any time correct any error in such transcript by appropriate
amendment thereto.
Sec. 5. If at any time before final judgment of the supreme court it shall be made to
appear to the court that the record on appeal does not accurately or fully state the proceedings
under consideration before the court, the court may take such steps and issue such orders,
including orders to the lower court or the clerk thereof, for the certification to the supreme
court of additional records or proceedings as shall be necessary or proper to correct or
complete the record on appeal.
1, 2. As to the contention that it was the duty of the trial judge to certify to volume 2, the
appellant is clearly in error. The trial judge had no power to settle and allow it as a bill of
exceptions, for the time for such settlement had expired. He could not settle and allow it as an
amendment to the transcript of the testimony and proceedings filed in lieu of the bill of
exceptions, and which under the statute constitutes the bill of exceptions in this case, for the
reason that the matter contained in it would not correct any error in the transcript. The
correction by appropriate amendment of error in a transcript which has become the bill of
exceptions is the sole office of the proviso. Under its terms such an amendment may be made
at any time. The proceedings in regard to the motion for a new trial had properly no place in
the transcript, and cannot therefore be held to have been erroneously omitted.
49 Nev. 172, 179 (1926) Water Co. v. Belmont Dev. Co.
These proceedings were had long after the trial and after the transcript had been made and
certified by the reporter. By the terms of section 1 of an act providing for the appointment of
court reporters in district courts, found in the statutes of 19201921, at page 96, the duties of
such a reporter are defined:
* * * Such reporter, or any of one of them, where there are two or more, must, at the
request of either party, or of the court in a civil action or proceeding, and on the order of the
court, the district attorney or the attorney for the defendant in a criminal action or proceeding,
take down in shorthand all the testimony, the objections made, the rulings of the court, the
exceptions taken, all arraignments, pleas and sentences of defendants in criminal cases, and
all statements and remarks made by the district attorney or judge, and all oral instructions
given by the judge; and if directed by the court, or requested by either party, must, within
such reasonable time after the trial of such case as may be designated by law, or, in the
absence of any law relating thereto, by the court, write out the same, or such specific portions
thereof as may be requested, in plain and legible longhand, or by typewriter or other printing
machine, and certify to the same as being correctly reported, and transcribed, and, when
directed by the law or court, file the same with the clerk of the court.
It is thus seen that it is no part of the duty of the court reporter to take down in shorthand
or otherwise report and transcribe and certify the instructions given and refused and the
proceedings on motions for a new trial in a civil action.
3, 4. Appellant contends that the order of the court grating leave to amend, made on July 1,
1925, operated as an extension of time in which to serve and file an amendment to the bill of
exceptions. As previously pointed out, no extension of time is necessary for the correction of
an error in a transcript. It may be ordered at anytime by the trial court on motion duly noticed
while the matter is under its control. If it be meant that volume 2 should be considered as a
bill of exceptions separate from the transcript of the testimony and proceedings, and that
the order for the amendment operated as an extension of time in which to serve and file
such additional bill of exceptions, then we say that the order could not possibly have such
effect, for the reason alone that it was made after the time had expired for serving and
filing such bill of exceptions.
49 Nev. 172, 180 (1926) Water Co. v. Belmont Dev. Co.
volume 2 should be considered as a bill of exceptions separate from the transcript of the
testimony and proceedings, and that the order for the amendment operated as an extension of
time in which to serve and file such additional bill of exceptions, then we say that the order
could not possibly have such effect, for the reason alone that it was made after the time had
expired for serving and filing such bill of exceptions. Under the provisions of the statute
heretofore quoted, this must be done not later than 20 days after final judgment, or within 20
days after a motion for a new trial has been decided. The motion for a new trial was denied in
this case on May 8, 1925, and the order for leave to amend was not made until June 15, 1925,
which was 38 days after the new trial had been denied.
5-7. For the reasons already given, the court is not authorized to order the lower court to
sign a certificate, nor can it consider volume 2 as a part of the record on appeal without such
certificate under the provisions of section 5 of the statute, as claimed by appellant. The
argument in this respect is that, as this section empowers this court, when the record on
appeal does not accurately or fully state the proceedings under consideration, to order the
lower court or clerk to certify to this court such additional records or proceedings as shall be
necessary or proper to correct or complete the record on appeal, and that, as volume 2 is
already certified by the clerk, this court may dispense with an order for that purpose, and
should consider volume 2 as a correction or completion of the record on appeal. Without
deciding whether in a proper case this could be done, it is sufficient to say that volume 2 can
in no sense be considered as a correction of the record on appeal. The record on appeal in this
case, as made in the lower court, is complete. It fully and accurately states the proceedings
under consideration before this court. This court is not empowered under section 5, or any
other section of the act, to add to or detract from it. The obvious purpose of section 5 is
amendatory, and to that end should be liberally construed.
49 Nev. 172, 181 (1926) Water Co. v. Belmont Dev. Co.
to that end should be liberally construed. It does not, however, contemplate the making of a
new record or the bringing up of matters not properly a part of the record on appeal in the first
instance.
8. Appellant contends that respondent, by admitting service of the proposed amendment
without reserving any right to object, and without making any objections to it as shown by the
clerk's certificate to volume 2, waived any delay to the serving or filing of it. Considered as
an amendment to the original bill of exceptions, there was no delay to waive. But it was not
an amendment, and the failure to object to it certainly could not under any stretch of liberality
make it an amendment. Considered as an additional bill of exceptions, the time for filing and
serving it, as we have previously stated, had expired, and the lower court was therefore
without jurisdiction to settle and allow it. For that reason alone the acknowledgement of
service without reserving objections could not operate as a waiver of the delay in serving and
filing it.
9. It is contended, that, if volume 2 is not properly an amendment to the bill of exceptions,
it nevertheless constitutes a part of the record on appeal by virtue of section 414 of the civil
practice act. This section reads:
On an appeal from a final judgment, the appellant shall furnish the court with a transcript
of the notice of appeal, and the statement, if there be one, certified by the respective attorneys
of the parties to the appeal, or by the clerk of the court. On an appeal from an order, the
appellant shall furnish the court with a copy of the notice of appeal, the order appealed from,
and a copy of the papers used on the hearing in the court below, and a statement if there be
one, such copies to be certified in like manner to be correct. If any written opinion be placed
on file in rendering judgment or making the order in the court below, a copy shall be
furnished, certified in like manner. If the appellant fails to furnish the requisite papers, the
appeal may be dismissed. Rev. Laws, sec. 5356.
49 Nev. 172, 182 (1926) Water Co. v. Belmont Dev. Co.
We are satisfied that section 414 is repealed by sections 11 and 12 of the act of 1915.
Section 11 provides as follows:
Sec. 11. The original bills of exceptions herein provided for, together with a notice of
appeal and the undertaking on appeal, shall be annexed to a copy of the judgment roll,
certified by the clerk or by the parties, if the appeal be from the judgment; if the appeal be
from an order, such original bill shall be annexed to such order, and the same shall be and
become the record on appeal when filed in the supreme court. A party may appeal from the
judgment roll alone, in which case only such errors can be considered as appear upon the face
of the judgment roll. Stats. 1915, p. 166.
By section 15 of this act certain specific sections of the practice act of 1911 and all
provisions of law in conflict with the act of 1915 are repealed.
Section 414 is not one of the sections expressly repealed, but it will be seen in comparison
with section 15 that the latter section is not only a complete revision of the former section,
but is in conflict with it in some respects. For instance, by section 414, on appeal from a final
judgment, a transcript of the notice of appeal is required, whereas by section 11 the original
notice of appeal and the undertaking on appeal is required. A record on appeal from a final
judgment, furnished in compliance with section 414, would be insufficient when measured
with the requirements of section 11. Again, section 11, after declaring what shall be annexed
to a copy of the judgment roll or the order appealed from, states that the same shall become
the record on appeal when filed in the supreme court. This language excludes all papers
which, by the provisions of section 414, when properly certified, together with the order
appealed from, became a part of the record on appeal from an order. Force is given to this
conclusion by the language of section 12 of the act of 1915, which reads:
The provisions of the last preceding section shall not apply to appeals taken from an order
made upon affidavits, but certified copy of such affidavits and counter affidavits, if any, shall
be annexed to the order in place of the bill of exceptions mentioned in the last section."
49 Nev. 172, 183 (1926) Water Co. v. Belmont Dev. Co.
affidavits, if any, shall be annexed to the order in place of the bill of exceptions mentioned in
the last section.
In other words, when the papers used in the hearing consists of affidavits, they need not be
incorporated in a bill of exceptions, as they otherwise would. The sections we have referred
to in the act of 1915 constitute a revision of the subject matter of section 414, and are
manifestly intended as a substitute for it. Under such circumstances a repeal is effected. Gill
v. Goldfield Con. Min. Co., 43 Nev. 1, 176 P. 784, 184 P. 309, and cases cited.
10. But it does not follow from what we have said that the whole of volume 2 should be
stricken. Among the papers contained in it, certified by the clerk to be true and correct copies,
is a copy of the order denying the motion for a new trial. This we think, should not be
stricken. The order is properly a part of the record on appeal by virtue of section 11 of the act
of 1915.
The motion as to this order is denied, and granted as to all other papers contained in
volume 2.
It is so ordered.
____________
49 Nev. 184, 184 (1926) State v. Acosta
STATE v. ACOSTA
No. 2706
January 12, 1926. 242 P. 316.
1. HomicideEvidence Held to Authorize Finding that Defendant Knew that Deceased Was
an Officer.
In prosecution for murder of a police officer when arresting defendant, evidence held to authorize
finding that defendant knew that deceased was an officer.
2. HomicideCharge, Stating Elements Necessary to Convict Defendant of Murder in First
Degree, Held Not Misleading.
Charge that to convict defendant of murder in first degree killing of deceased must have been
willful, deliberate, and premeditated, and that such design to kill was formed at or before time of killing,
held not misleading, since jury must have understood that design to kill must have been formed as result
of deliberation and premeditation.
3. HomicideOn Resistance of Arrest, Instruction, Based on Statute, Held Not Erroneous,
Irrespective of Constitutionality.
In prosecution for murder of police officer when arresting defendant, instruction, based on Stats.
1923, c. 165, sec. 1, making it unlawful for any person to loiter in any public place, while under influence
of liquor, held not erroneous, irrespective of whether such statute is unconstitutional, since an officer has
right to presume that a statute is valid, and it being duty of one arrested to submit and raise
constitutionality of statute pursuant to which he is arrested in a tribunal organized to determine such
question, and not to constitute himself a court to settle question.
4. HomicideCourt Not Required to Instruct that Defendant Knew, or Had Sufficient
Reason to Believe, that Deceased Was an Officer.
In prosecution for murder of police officer when arresting defendant while in act of committing an
offense, court held not required to instruct that defendant knew, or had sufficient reason to believe, that
deceased was an officer, in view of Rev. Laws, secs. 6953, 6954, 6958, since arresting officer did not
have to make his authority known.
5. HomicideInstruction Not Erroneous as Taking from Jury Question whether Defendant,
in Killing Deceased, Acted in Necessary Self-Defense.
Instruction on duty of person to submit to arrest, and that if defendant, while legally under arrest, and
in an attempt to resist arrest or confinement in jail, shot and killed deceased officer, he would be guilty of
murder, held not erroneous as taking question from jury whether defendant in killing deceased acted in
necessary self-defense.
6. Criminal LawDuty of Defendant to Request Desired Instruction.
It was the duty of defendant, if he desired an instruction whether, in killing a police officer, he acted
in necessary self-defense, to request it.
49 Nev. 184, 185 (1926) State v. Acosta
7. HomicideFailure to Instruct whether Defendant, in Killing Deceased, Acted in
Self-Defense, Held Not Prejudicial Under Evidence.
In prosecution for murder of police officer, failure to instruct whether defendant, in killing deceased,
acted in necessary self-defense, held not prejudicial under evidence.
8. HomicideWhether Defendant Animated by Malice in Killing Police Officer Held for
Jury.
In prosecution for murder of police officer while making arrest, whether defendant was animated by
malice held for jury.
See (1, 2, 3, 4, 5, 6, 8) 29 C.J. sec. 72, p. 1098, n. 74; sec. 79, p. 1104, n. 39; 30 C.J. sec. 257, p.
77, n. 42; p. 78, n. 57; sec. 556, p. 308, n. 19; sec. 559, p. 312, n. 42; sec. 574, p. 326, n. 88; sec.
601, p. 348, n. 2; sec. 617, p. 366, n. 5; sec. 618, p. 368, n. 19; sec. 628, p. 383, n. 3; sec. 646, p.
402, n. 78; sec. 718, p. 451, n. 21; (7) 16 C.J. sec. 2499, p. 1058, n. 29; 17 C.J. sec. 3593, p. 255,
n. 53.
Appeal from Fourth Judicial District Court, ELko County; J.M. McNamara, Judge.
Gaudalupe Acosta was convicted of murder in the first degree, and he appeals. Affirmed.
Rehearing denied.
E. P. Carville, for Appellant:
As malice was not shown, appellant should not be convicted of greater crime than
manslaughter. Peace officer, even when arresting person who commits crime in his presence,
should state official character and authority on demand after person has submitted. Where
person sought to be arrested acts in good faith in demanding authority and resists arrest upon
refusal of arresting person to give it, honestly believing other is making unauthorized assault,
and arresting person makes demonstration with deadly weapon, killing is justifiable. Malice
and passion may coexist, but express malice and irresistible passion cannot. State v. Salgado,
150 P. 764; 3 Cyc. 889.
It is impossible for premeditation to be formed at instant act was committed; premeditation
implied design formed prior to act, though interval be brief. State v. Salgado, supra.
Instruction that it is unlawful to loiter in any public place while under influence of liquor
(Stats. 1923, 281) in unconstitutional for uncertainty as to degree of intoxication, and
prejudicial as leading jury to believe appellant was drunk to extent of being nuisance.
49 Nev. 184, 186 (1926) State v. Acosta
intoxication, and prejudicial as leading jury to believe appellant was drunk to extent of being
nuisance.
Instruction that where person has right to arrest, other has no right to resist as two rights
cannot coexist is incomplete. It took from jury right to consider questions as to whether
appellant knew officer's character or authority, whether there was premeditation and
deliberation, and hence what was degree of offense, if any, and as to whether circumstances
of killing showed justifiable self-defense.
M. A. Diskin, Attorney-General, and W.T. Mathews, District Attorney, for the State:
Defendant knew deceased's official character. It was unnecessary for officer to state it.
Rev. Laws, 6958; Clark Crim. Pro. (2d ed.) 58.
Malice was circumstantially proved. It is implied where circumstances show abandoned
and malignant heart. Brill Crim. Law, sec. 631; State v. Salgado, 38 Nev. 64, 413.
Conviction of first degree murder does not depend alone on showing of malice. It is
inadequate to justify killing or reduce it to manslaughter that officer does not show authority
or arrest is apparently illegal. People v. Stirgios, 136 P. 955; People v. Gillman, 190 P. 205.
Trend of decisions from early English times to present is that killing peace officer while
exercising powers incident to his office under circumstances indicating felonious killing is
murder, irrespective of whether malice is shown. If in resisting, more force than is necessary
is used, or if deadly weapon is unnecessarily used in first instance, prisoner is aggressor and
killing is murder. State v. Taylor, 67 A.S.R. 648; 13 R.C.L. 869.
Length of time for deliberation is not essential element in murder in first degree. State v.
Millian, 3 Nev. 409; Ah Mook, 12 Nev. 369.
Omission of essential element in one instruction is not fatal if given in another. 6 Nev. 265;
12 R.C.L. 817.
Public drunkenness is nuisance at common law and by statute.
49 Nev. 184, 187 (1926) State v. Acosta
by statute. 2 Brill Crim. Law, sec. 1743. Officer had right to enforce statute, even though
unconstitutional. Neither officer nor defendant can decide that question. Keady v. People, 74
P. 892.
Resistance to rightful arrest is crime. Killing officer then is homicide. Self-defense does
not arise therein. 13 R.C.L. 866.
OPINION
By the Court, Coleman, C. J.:
The defendant was convicted of murder in the first degree and appeals from a judgment
inflicting the death penalty.
The first point urged is that the defendant could not, under the evidence, be legally
convicted of a crime greater than manslaughter, even though the jury might have concluded
that he did not act in self-defense. This contention is based upon the rule stated in 13 R.C.L.
p. 872, reading:
Within the rule that one who kills an officer, while the latter is lawfully attempting to
effect his arrest, is guilty of murder, it is true, generally speaking, that to constitute the acts of
the officer lawful he must disclose his official character and the authority under which he
assumes to make the arrest. * * * Where a person sought to be arrested acts in good faith in
demanding the authority of the person attempting the arrest, and in resisting the arrest upon
refusal to state it, honestly believing the other person is making a totally unauthorized assault
upon him, and the other makes the first demonstration with a deadly weapon, thus putting
him in danger of life and limb, the killing of him may be justifiable.
On the evening of March 2, 1925, about 9 o'clock, the defendant, who had been employed
on the Western Pacific Railroad, arrived in Elko and went to the West Hotel, where he
engaged a room, and thereafter went to a cafe to get something to eat. After leaving the cafe,
he was seen loitering on the sidewalk by the officers Capriola and Lewis, in a drunken
condition, and indulging in profanity, which is an offense under our statute.
49 Nev. 184, 188 (1926) State v. Acosta
indulging in profanity, which is an offense under our statute. Officer Capriola spoke to and
told defendant to go to bed. The officers continued up the street and were overtaken by the
defendant, who walked between them for a short distance, still under the influence of liquor
and indulging in profanity. Officer Capriola again ordered the defendant to go to his room
and go to bed. The defendant then replied, To hell with you fellows. Officer Lewis
thereupon spoke for the first time, saying, Well, if you don't want to go to bed, we will put
you to bed, and took the defendant by the arm and started to the county jail with him. The
defendant was first warned about midway the block in which is the post office, on the main
street of Elko, and the arrest took place at the Henderson Bank corner, one of the most
prominent points in the city. Officer Lewis, in taking the defendant toward the jail, crossed
the street diagonally, reaching the opposite side at about the intersection of Fifth Street, and
then proceeded up the center of Fifth Street for a distance, angling toward the east side of the
street as he approached the next street, on which is the jail. It was near the intersection of the
next street at which officer Lewis was shot by the defendant; three bullets having penetrated
his body. The theory of the defense is that defendant did not know that Lewis was an officer,
and that he was under arrest, and that he thought Lewis was taking him to a dark place to rob
him, and that, when they reached the point where the shooting took place, Lewis assaulted
him, and that he shot in self-defense.
While officer Capriola did not testify that either of the officers told the defendant, in his
presence, that they were officers, or that he was under arrest, he testified that Lewis wore an
officer's star, which could be easily seen, of which there is ample evidence; that he had seen
the defendant in Elko numerous times; and that on at least one occasion the defendant was
present when he had ordered several Mexicans to mend their ways. There is also in evidence
a statement of the defendant, made the morning after the shooting, in which he said that
Lewis told him he was a policeman.
49 Nev. 184, 189 (1926) State v. Acosta
1. We would be amply justified in saying that, though the defendant denied on the stand
knowing that Lewis was an officer or making the statement in evidence, and testified that he
was assaulted without provocation, and, as he thought, with the view of robbery, the jury
having heard all of the evidence, and there being ample evidence to support the verdict, we
would simply let the matter rest upon such verdict without comment. Since, however, this is a
capital case, we may say we cannot see how the jury could have reached any other conclusion
than that the defendant knew that Lewis was an officer. He was arrested about 10 o'clock.
Prior to his arrest he was ordered twice to go to his room by one of the two officers. This
alone was enough to indicate to his mind that they were officers, or at least not set upon
robbery, for, if they had designed robbery, they would have given no such orders. Could he
reasonably have inferred that Lewis, who took him by the arm and marched him across the
street at 10 o'clock at night, at the main street of the town had conceived the idea of robbery
after leaving Capriola? If the defendant had such an idea, he could have appealed to the
witness McCulloch, who crossed Fifth Street within a few feet of the defendant and Lewis;
but, instead of doing so, according to McCulloch, the defendant was talking rough. If he
had thought he was in the hands of a highwayman, the most natural thing for the defendant to
have done would be to appeal to McCulloch. He did not do this. We are satisfied that the jury
reached the right conclusion in rejecting the contention of the defendant.
It is next contended that the court erred in giving instruction No. 19, which reads:
The court instructs you that while the law requires that the killing, in order to constitute
murder in the first degree, shall be willful, premeditated, and deliberate, still it does not
require that the willful intent, premeditation, or deliberation, shall exist for any prescribed
length of time before the crime was committed; it is sufficient that there was a determination
and design to kill, distinctly formed in the mind at any moment before or at the time the shot
was fired. And in this case, if the jury believe from the evidence, beyond a reasonable
doubt, that the defendant shot and killed deceased, as charged, and that at the time or
before the shot was fired the defendant had formed in his mind, a willful, premeditated,
and deliberate design or purpose to take the life of the deceased, and that the shot was
fired in furtherance of that design or purpose, and without any justifiable cause, or legal
excuse therefor, as explained in these instructions, then the jury should find the
defendant guilty of murder in the first degree."
49 Nev. 184, 190 (1926) State v. Acosta
case, if the jury believe from the evidence, beyond a reasonable doubt, that the defendant shot
and killed deceased, as charged, and that at the time or before the shot was fired the defendant
had formed in his mind, a willful, premeditated, and deliberate design or purpose to take the
life of the deceased, and that the shot was fired in furtherance of that design or purpose, and
without any justifiable cause, or legal excuse therefor, as explained in these instructions, then
the jury should find the defendant guilty of murder in the first degree.
The portion of the instruction particularly complained of is the emphasized words in the
following:
It is sufficient that there was a determination and design to kill distinctly formed in the
mind at any moment before, or at the time the shot was fired, with special stress upon the
words emphasized.
The objection urged to the language in question is that
It would be a physical impossibility for premeditation to be formed in the mind at the
instant the shot was fired, because premeditation necessarily means that a design must have
been formed at some time prior to the time the shot was fired, even though it be short.
2. Our statute provides that the willful, deliberate, and premeditated killing of a human
being with malice aforethought shall be murder in the first degree. By the instruction the
court charged the jury that in order to convict the defendant of murder in the first degree, they
must find that the killing of the deceased was willful, deliberate, and premeditated, and that
such design to kill was formed at or before the killing. We do not think the instruction was
misleading or confusing. The jury must have understood from the entire instruction that the
design to kill must have been formed as the result of deliberation and premeditation. This is
all that the law contemplates. The language complained of was used in an instruction given in
the case of State v. Ah Mook, 12 Nev. 369, and is often given. It met with approval in 2
Brickwood Sackett on Instructions (3d ed.), p. 1884. The defendant was in no way prejudiced.
49 Nev. 184, 191 (1926) State v. Acosta
3. It is next contended that the court erred in giving instruction No. 23, which reads:
You are instructed that, under the laws of this state, it is unlawful for any person to loiter
in any public place, or on any public sidewalk, street, road, or highway, while under the
influence of liquor.
This instruction is based upon section 1, c. 165, p. 281, Stats. 1923. It is said that the
statute is unconstitutional. Our attention is not directed to any provision of the constitution of
which it is said the statute is violative, and we can see no theory upon which the contention
can be sustained. But, if the statute were unconstitutional, the defendant could not profit
thereby. An officer has a right to presume that a statute is valid and it is the duty of one when
being arrested or when under arrest to submit, and raise the constitutionality of the statute
pursuant to which he is arrested in a tribunal organized to determine such a question, and not
to constitute himself a court to settle the question. Keady v. People, 32 Colo. 57, 74 P. 892,
66 L.R.A. 353.
It is next contended that the court erred in giving the following instruction:
Every person is bound to submit to the ordinary course of justice, and, while an officer in
making a lawful arrest, should use no unnecessary violence, it is his duty to make the arrest,
and the law clothes him with power to accomplish that result and imposes upon him the duty
to overcome all resistance; the means being coextensive with the duty, except to take life
itself where the arrest is for a misdemeanor.
Every case where one person has a right to arrest or restrain another, the other can have
no right to resist, since the two rights cannot coexist; and, where a person having the right to
arrest another is killed by the latter, in the resistance of such arrest, the resistance is a crime,
and the killing is a homicide in the commission of an unlawful act. No right of self-defense
can arise out of such circumstances.
If, therefore, you find from the evidence, beyond a reasonable doubt, that deceased was
an officer, and that defendant while legally under arrest and while being taken by
deceased to the county jail, in an attempt to resist arrest or confinement in jail, shot and
killed deceased, then you are instructed that defendant would be guilty of murder."
49 Nev. 184, 192 (1926) State v. Acosta
defendant while legally under arrest and while being taken by deceased to the county jail, in
an attempt to resist arrest or confinement in jail, shot and killed deceased, then you are
instructed that defendant would be guilty of murder.
4. It is said that this instruction was prejudicial because it took from the jury the right to
determine whether the defendant acted in necessary self-defense, and also eliminated the
question whether the defendant knew or had sufficient reason to know that the deceased was
an officer. Section 6953, Rev. Laws, provides that a peace officer may make an arrest,
without a warrant, for a public offense committed in his presence. Section 6954 provides that
a private person may make an arrest for a public offense committed in his presence, and
section 6958 provides that the person making the arrest must inform the person to be arrested
of his intention to arrest him, of the cause of the arrest, and the authority to make it, except
where the person to be arrested is actually engaged in the commission of or an attempt to
commit an offense. In the instant case the defendant was arrested while in the act of
committing the offense; hence the arresting officer did not have to make his authority known.
In view of this situation, there was no occasion for an instruction that the jury find that the
defendant knew or had sufficient reason to believe that the deceased was an officer, though
there is ample evidence to justify the conclusion that he knew that Lewis was an officer and
that he was under arrest as we have pointed out.
5-7. As to the first contention, we do not think the instruction took from the jury the
question whether the defendant, in killing the deceased, acted in necessary self-defense. It is
true the court did not instruct on that point, but it was the duty of the defendant, if he desired
such an instruction, to request it. This was not done. In this connection we may say that, from
a reading of the entire testimony, we are clearly of the opinion that the defendant was in no
way prejudiced because of the failure to instruct on the point made.
49 Nev. 184, 193 (1926) State v. Acosta
8. It is next said that, to justify the verdict, it was necessary for the state to prove that
malice existed in the mind of the defendant at the time of the shooting, and that there is no
evidence in the record to sustain such a finding. In support of the contention that no malice
was shown, it is said that the defendant did not know the officers, and naturally could have
had no malice or feeling against them. It is also said that the fact that the defendant walked
along the street with the officers tends to show that he entertained no feeling or malice toward
the officers. We have no reason to believe that the defendant had any feeling whatever toward
the officers prior to his arrest, but that is no sign that he may not have been prompted by
malice at the moment of the killing. The undisputed testimony of the witness McCulloch is
that the defendant was talking rough to Lewis when they were crossing the street, and it is
more probable than otherwise that he became more enraged as he neared the jail. However,
our statute provides that malice shall be implied when no considerable provocation appears,
or when all the circumstances of the killing show an abandoned and malignant heart. The jury
was properly instructed, and it was their peculiar province to determine if the defendant was
animated by malice. We think there is ample evidence to sustain the verdict.
Finding no prejudicial error in the record, the judgment and order appealed from are
affirmed, and the district court is directed to make the proper order for the carrying into effect
by the warden of the state prison the judgment rendered.
On Petition for Rehearing
March 15, 1926.
Per Curiam:
Rehearing denied.
____________
49 Nev. 194, 194 (1926) State v. Oschoa
STATE v. OSCHOA
No. 2717
January 12, 1926. 242 P. 582.
1. Criminal LawWhen Alibi Is Complete, Stated.
Alibi is not complete unless it reasonably appears therefrom that defendant could not have been at
place of crime.
2. Criminal LawPeculiarities of Expression Held Not Sufficient to Warrant Disregard of
Testimony.
Contradictory statements of illiterate Indian woman, which were seemingly characteristic and mere
peculiarities of expression, held not sufficient alone to warrant jury in disregarding testimony.
3. HomicideEvidence Held Sufficient to Establish Killing by Accused.
Evidence held sufficient to justify jury in conclusion that accused, charged with murder, killed
deceased.
4. Criminal LawShirt Held Material Evidence if Rents in it Correspond to Accused's Scar.
Where defendant told witness that deceased cut his arm, and evidence pointed to struggle,
blood-stained shirt held material as tending to identify accused as guilty person if scar on accused's arm
corresponded to rent in shirt.
5. Criminal LawWeight as Evidence of Shirt Found at Scene of Crime Question for Jury.
Where shirt found at scene of killing was introduced in evidence and accused forced to put it on in
effort to establish connection between scar on his arm and rent in shirt, weight of such evidence was for
jury.
6. Criminal LawEvidence of Shirt Found at Scene of Killing Held Harmless Error.
Where defendant charged with murder was forced to put on shirt found at scene of killing in effort to
establish connection between scar on his arm and rent in shirt, admission of shirt in evidence was error,
but harmless if there was no correspondence.
7. Indictment and InformationOne Charged with Murder May Be Found Guilty of
Involuntary Manslaughter.
In view of criminal practice act, sec. 369, as amended by Stats. 1919, c. 232, sec. 65, providing
defendant may be found guilty of any offense included in that charged, one charged with murder may be
found guilty of involuntary manslaughter.
8. HomicideAccused Cannot Complain of Conviction of Manslaughter on Evidence
Warranting Conviction for Murder.
Where defendant charged with murder conceded that killing amounted at least to second degree
murder, and that circumstances would aggravate rather than mitigate offense, he could not be heard to
complain because jury found him guilty of involuntary manslaughter.
9. HomicideInstruction as to All Grades of Homicide Held Proper where Murder Was
Charged.
Where, in prosecution for murder, deceased was found dead, having been shot twice, and there was
evidence of hard struggle with slayer, but no eyewitness, court properly instructed jury
as to all grades of homicide.
49 Nev. 194, 195 (1926) State v. Oschoa
with slayer, but no eyewitness, court properly instructed jury as to all grades of homicide.
10. Criminal LawCompelling Accused to Don Shirt Found at Scene of Killing Held Proper.
Compelling defendant, accused of murder, to remove shirt to exhibit scars and to don shirt found at
scene of crime and submit to inspection by jury, was not improper as tending to humiliate, degrade, or
prejudice him, and did not violate constitutional privilege against being witness against himself.
11. WitnessesQuestion on Cross-Examination in Prosecution for Homicide Held Properly
Excluded.
On cross-examination in prosecution for homicide, objection to the question, Did any other person
ever come to your door before this time? was properly sustained because unlimited as to time, and court
was empowered to keep such examination within proper limits.
12. Criminal LawInstructing Jury to Draw Own Conclusion from Inspection of Shirt
Rendered Harmless any Error in Other Evidence.
Any error in allowing sheriff to testify that shirt found at scene of homicide fitted defendant, and that
hole in sleeve corresponded to scars on defendant's arm, was rendered harmless when jurors saw shirt on
defendant and were instructed to draw their own conclusions.
See (1, 2, 4, 5, 6, 10, 12) 16 C.J. sec. 1100, p. 568, n. 15; sec. 1104, p. 569, n. 48 (new); sec. 1227, p. 620, n. 54,
55, 56; sec. 1588, p. 777, n. 86; sec. 2281, p. 924, n. 36; sec. 2290, p. 929, n. 86; sec. 2291, p. 931, n. 98;
17 C.J. sec. 3662, p. 317, n. 10; sec. 3664, p. 321, n. 47; sec. 3732, p. 362, n. 94; (3, 8, 9) 30 C.J. sec.
540, p. 296, n. 19; sec. 641, p. 397, n. 29, 30; sec. 722, p. 452, n. 38, 40; (7) 31 C.J. sec. 484, p. 855, n.
53; sec. 493, p. 857, n. 86, 858, n. 93; (11) 40 Cyc. p. 2517, n. 74.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Carlos Oschoa was convicted of involuntary manslaughter, and he appeals. Affirmed.
Rehearing denied.
Frame & Raffetto, for Appellant:
That shirt found in cabin was worn by appellant and discarded after killing was merely
theoretical assumption of prosecution. Evidence showed impossibility of telling how rents in
garment were caused. Rents and scars on appellant's arm did not correspond. There is no
proof that deceased used knife in affray.
Only evidence connecting appellant with crime it that of three witnessesIndians and
Mexicanwho saw him hours before and after crime; of Hillhouse, that garment fitted
and that rents in shirt and scars on appellant's arm corresponded; and that obtained by
compelling appellant to put on shirt in presence of jury for their inspection.
49 Nev. 194, 196 (1926) State v. Oschoa
hours before and after crime; of Hillhouse, that garment fitted and that rents in shirt and scars
on appellant's arm corresponded; and that obtained by compelling appellant to put on shirt in
presence of jury for their inspection. Alibi was sustained by six witnesses and appellant.
Court erred in sustaining objection to cross-examination of Indian Peggy Parrott, as to her
certainty of identification of appellant; in admitting testimony of Hillhouse, which consisted
of conclusions, it is providence of jury alone to draw; and in violating constitutional
guarantee by compelling appellant to be witness against himself. Inspection of physical
features is proper for identification, not to fasten crime on accused. State v. Ah Chuey, 14
Nev. 79.
No evidence was offered in mitigation of crime. Manslaughter was not issue in case.
Instructions should be applicable to issues. Kirk v. Territory (Okl.), - P. -. Evidence
showed deliberate killing. Appellant could not be guilty of crime of which he was convicted.
M. A. Diskin, Attorney-General; L.D. Summerfield, District Attorney, for the State.
Jury, being exclusive judge of evidence, may disbelieve unsatisfactory testimony. No alibi
was established. 16 C.J. 93.
Though objection was sustained to question unlimited as to time asked of Peggy Parrott,
appellant received answer to similar one properly limited.
Witness may state known or observed facts, though answer involves element of inference.
22 C.J. 527. Jury made inspection also, and drew its own conclusions.
In homicide case where there is no eyewitness, jury is entitled to bring in any included
verdict from second degree murder, down. First degree could not be established and was not
asked for. 30 C.J. 142-149.
Constitutional guarantee against defendant being made witness against himself relates
exclusively to communications and statements by him, not demonstration of physical facts.
16 C.J. 568; State v. Petty, 32 Nev. 384. When jury could have returned greater, appellant
cannot complain of lesser included verdict.
49 Nev. 194, 197 (1926) State v. Oschoa
When jury could have returned greater, appellant cannot complain of lesser included
verdict. Gibson v. Somers, 31 Nev. 531; 17 C.J. 362.
OPINION
By the Court, Ducker, J.:
Appellant was charged with murder and convicted of involuntary manslaughter. The
appeal is from the judgment and from an order overruling appellant's motion for a new trial.
The appellant was convicted on circumstantial evidence. It is claimed that the evidence is not
sufficient to support the verdict. On the morning of December 29, 1924, at about 9 o'clock,
one Nick Gaerdoges, a Greek, was found dead in his cabin on Monkey Island in Reno,
Nevada. Death had been caused by a bullet wound in the head. There was also a bullet wound
in the chest, and the body was considerably bruised and lacerated. The body, fully dressed,
was found lying on the floor of the cabin. On the floor near the body were found three
revolver shells, a pair of overalls, and two shirts. The lock on the door of the cabin was
sprung, apparently from the outside. According to the testimony of one Jennings, a witness
for the prosecution, who was living in a house situated about 25 or 30 feet from the cabin of
the deceased, he was awakened from his sleep on the night of the 28th of December by a
noise or scuffle in the latter place. The scuffle did not last but a second or more, and then he
heard some one say, Don't! Oh, don't! Don't! The last exclamation was in a loud tone of
voice; very loud, the witness said. The witness was unable to state what time of the night it
was when he heard the scuffle and exclamations. Appellant's presence in Reno near the time
of the killing was sworn to by three witnesses. According to testimony of Manuel Atyde, he
saw appellant on the night of the killing in company with Gaerdoges. He saw them talking to
each other on the sidewalk in front of the Reno Garage on Second Street in Reno, as he
passed by, but was unable to say what time it was.
49 Nev. 194, 198 (1926) State v. Oschoa
time it was. He exchanged greetings with them as he passed. He was acquainted with Nick
Gaerdoges, and had seen appellant before about town.
Peggy Parrott testified as follows: She lived in Reno and knew the appellant. When her
boy was sick in the hospital, appellant was there also and she came to know him in that way.
She had seen him also on the streets of Reno a number of times before the killing. On the
morning of December 29, 1924, appellant came to her house in Reno and knocked on the
screen door. She opened the door and talked to appellant. He wanted a place to sleep. She
told him she had no blankets for him. He said All right, and turned around and walked
away. He was there two or three minutes and stood within two feet of her. He talked to her in
English. Mary Skimmerhorn testified at the preliminary examination. Her presence at the trial
could not be obtained, and after a proper showing in this regard her deposition taken at that
examination was introduced in evidence. In substance her testimony is as follows: She lived
in Reno and knew Nick Gaerdoges, called Nick the Greek. She heard of his death and saw
appellant the next morning in Chinatown in Reno at about 8 o'clock and talked with him. She
had seen him and talked with him before. On this occasion he had a rag around his arm. She
saw blood stains on his coat and pants. She asked him what was the matter with his arm, and
he told her that Nick the Greek cut his arm. He also told her that he was going to get out of
town.
The sheriff, who found one of the shirts in the cabin on the morning of the discovery of the
homicide, testified in regard to it and to certain scars on the appellant's body as follows: After
the appellant had been apprehended, he, the sheriff, had him put the shirt on. He said that it
fitted him very well, and that there were two holes in the left sleeve of the shirt; that the scars
on appellant's left arm and left shoulder were in range of these holes; that there was also a
scar on appellant's chest.
At the request of the district attorney and over the objection of counsel for appellant, the
latter was required by the court to remove his coat and shirt and permit the jury to see
the scars on his body.
49 Nev. 194, 199 (1926) State v. Oschoa
objection of counsel for appellant, the latter was required by the court to remove his coat and
shirt and permit the jury to see the scars on his body. He was also required to put on the shirt
in question and submit to a view by the jury. The shirt was introduced in evidence and handed
to the jury for inspection.
Jose Salazar, a witness for appellant, testified substantially as follows: He lived in
Westwood, Calif., and had known appellant for nine years. They were brothers-in-law.
Appellant came to his house in Westwood on November 11, 1924, and lived there until he
was arrested and brought to Reno on the present charge. He slept at the home of the witness
every night from Christmas during December and January. They slept in the same bed. The
marks on appellant's body were there when he came to Westwood on November 11. He had
two marks on his body when he came to Westwood after leaving the hospital. The other
marks had been on his body for a long time. The scar on the left arm had been there for nine
years. In rebuttal of this testimony concerning the scars on the left arm, the state placed
Charles R. Hillhouse on the stand. He testified as follows: He was clerk of the identification
bureau of the city of Reno police department. His duties consisted of photographing finger
prints and taking a description of all prisoners. On November 10, 1924, he examined
appellant's arms and face for scars and distinguishing marks. The appellant was required by
the court to exhibit his left arm to the witness, and his attention was called to a scar about an
inch in length on the outer side of the left arm. The witness testified that the scar was not
there when he made the former examination.
The appellant interposed the defense of an alibi. He was a witness in his own behalf. He
testified in substance that after being ordered out of town by the chief of police he left Reno,
going to Westwood, Calif., and was at the latter place when the homicide was committed.
1. Six other witnesses also testified in support of this alibi. Aside from the appellant, the
testimony of only one of these witnesses, that of his brother-in-law, Jose Salazar, if true,
made it impossible for the appellant to have committed the offense.
49 Nev. 194, 200 (1926) State v. Oschoa
only one of these witnesses, that of his brother-in-law, Jose Salazar, if true, made it
impossible for the appellant to have committed the offense. It appears from the evidence that
it is about a four hours' drive by automobile between the two places. The appellant could have
killed the deceased and have been seen in Westwood at the times as related by the witnesses.
In other words, their testimony, if true, did not establish a complete alibi. An alibi is not
complete unless it reasonably appears therefrom that the defendant could not have been at the
place where the crime was committed. On cross-examination two of these witnesses admitted
having told the sheriff that it was on a date other than the 28th or 29th of September that they
saw the appellant in Westwood. Another of these witnesses on cross-examination claimed to
have seen appellant in Westwood at times when he was admittedly in Reno. The weight of
the evidence in support of the defense of alibi was, of course, for the jury, whose verdict
shows that it was not established to its satisfaction.
As said in Bast v. Commonwealth, 124 Ky. 747, 99 S.W. 978:
An alibi is the strongest possible defense when thoroughly established, but it becomes, at
once, the most dangerous and weakest of all defenses that could be set up, when it is not
thoroughly established.
2. The evidence on the part of the prosecution showed that appellant was in Reno on the
night of the killing. He was abroad in the early morning hours looking for a place to sleep, as
testified to by the Indian woman, Peggy Parrott. He was last seen that night in company with
the man who was killed. The most damaging testimony against him was that given by the
Indian woman, Mary Skimmerhorn, who talked with him the next morning, and whom he
told that Nick the Greek had cut his arm and that he intended to get out of town. True, there
are statements in this testimony, brought out on cross-examination, such as: He didn't say
nothing to me. He didn't tell me anything, which counsel for appellant detach from the
whole testimony and argue that they render it unworthy of belief.
49 Nev. 194, 201 (1926) State v. Oschoa
and argue that they render it unworthy of belief. The testimony ought not to be considered in
this way. The witness was evidently an illiterate Indian woman whose ability to express
herself clearly in English was extremely limited. Statements apparently contradictory seemed
to be characteristic of her speech. For instance, she said: I didn't say nothing. I say, What's
the matter with your arm?' I say that to him. Another answer was as follows: I didn't say
nothing. I go away, and I never spoke good to him. I ask a little bit. And again: He didn't
say nothing, only, I'm going to get out of town.' These were merely peculiarities of
expression and were not sufficient alone to warrant the jury in disregarding her testimony. If
the jury believed her testimony, it connected the appellant directly with the commission of the
crime. Appellant's attempt to account for the scar on his left arm by the testimony of his
brother-in-law, which was rebutted by the state, was, if the jury believed the latter testimony,
a circumstance against him.
3-6. It is difficult to tell what, if any, inferences the jury may have drawn from the
inspection of the shirt with reference to the appellant's body; but aside from this, the other
evidence was sufficient to justify the jury in concluding the appellant killed the deceased.
There were blood stains on the skirt and rents in it, one of which in the left shoulder appeared
to have been made with a knife or sharp instrument. The evidence points to a desperate
struggle between the deceased and his slayer. The Indian, Mary Skimmerhorn, testified that
appellant told her Nick the Greek cut his arm. The shirt was found at the scene of the killing,
evidently discarded by the slayer. Under these circumstances, if the rent in the shirt made by
the knife corresponded with a scar on the appellant's are, the shirt was material as tending,
however slight may have been the tendency, to identify the accused with the person who
committed the crime. Its weight was for the jury. On the other hand, if there was no
correspondence in this regard, the shirt was immaterial and its admission in evidence was
error.
49 Nev. 194, 202 (1926) State v. Oschoa
evidence was error. But certainly in this event it was harmless error, for the condition of the
shirt would support an inference that it was worn by some one else during the struggle.
7. It is contended that the verdict of involuntary manslaughter is inconsistent with the
facts, and as there is no evidence tending to show involuntary manslaughter, this grade of
felonious homicide was not in the case and therefore cannot stand. In conformity with the
common-law rule and the great weight of authority, this court has held that one indicted for
murder may be found guilty of involuntary manslaughter. In Re Somers, 31 Nev. 531, 103 P.
1073, 24 L.R.A. (N.S.) 504, 135 Am. St. Rep. 700. Section 369 of the criminal practice act
(Rev. Laws, sec. 7219), as amended by Statutes of 1919, at page 430, sec. 65, precludes any
other view. It reads:
In all cases the defendant may be found guilty of any offense, the commission of which is
necessarily included in that with which he is charged, or may be found guilty of an attempt to
commit the offense charged.
Manslaughter, whether intentional or unintentional, is necessarily included in a charge of
murder. The application of the rule of the statute is not affected by the fact that the crime
under the law and facts ought to be fixed at a higher grade or degree. 13 R.C.L. 757; State v.
Lindsey, 19 Nev. 47, 5 P. 822, 3 Am. St. Rep. 776. In State v. Lindsey the appellant was
indicted for the crime of murder, alleged to have been committed by administering poison.
The jury found her guilty of murder of the second degree. The judgment was affirmed.
Murder by means of poison is, under the statute, murder of the first degree. The court said:
But suppose the jury, in charity for the faults and weakness of the human race, sympathy
for the prison, or any other mistaken view of the law or the facts, lessens the offense to
murder in the second degree, is the prisoner to go free? Does not the case stand precisely
upon the same plane as a verdict of murder in the second degree in any case not enumerated
in the statute, where there is a willful, deliberate, and premeditated killing?
49 Nev. 194, 203 (1926) State v. Oschoa
killing? Is it not as much the duty of the jury in such a case to find the prisoner guilty of
murder in the first degree as in the cases specially enumerated in the statute? Suppose the jury
in such a case, where the evidence is positive, clear, plain, and satisfactory beyond a
reasonable doubt, regardless of all the testimony, and in violation of the well-settled
principles of law, should find the prisoner guilty of murder in the second degree, would the
prisoner be entitled to a new trial upon the ground that the verdict is against the evidence? Is
it not a fact that juries frequently render just such verdicts, and the result cannot be accounted
for upon any theory other than that of a compromise of opinion? Why should such verdicts be
allowed to stand? * * * The reason is, that the statute leaves the question of degree to be
settled by the verdict of the jury.
It may be said with equal reason that the statute quoted above also leaves it to the jury to
find any grade of homicide embraced within the crime charged.
In Indiana, the statutes empowering the jury to fix the degree of a crime and to convict of
any offense, the commission of which is necessarily included in the crime charged, are similar
to ours, and murder by means of poison is murder of the first degree. In Hasenfuss v. State,
156 Ind. 246, 59 N.E. 463, the defendant was charged with murder of the first degree by
administering the poison, and convicted of voluntary manslaughter. The judgment was
affirmed, the court holding that it was without power to disturb the verdict. Referring to that
case, the court in Gipe v. State, 165 Ind. 433, 75 N.E. 881, 1 L.R.A. (N.S.) 419, 112 Am. St.
Rep. 238, said:
It must not be forgotten that a charge of murder in the first degree comprehends every
grade of felonious homicide, and that a finding of involuntary manslaughter cannot be
disturbed on appeal because the evidence shows that the defendant was guilty of murder.
It was held in Commonwealth v. McPike, 3 Cush. (Mass.) 181, 50 Am. Dec. 727, that one
convicted of manslaughter has no reasonable ground of complaint when the evidence proves
murder. In Moore v. People, 26 Colo. 213, 57 P. 857, the court said: "On the other hand, if
they were satisfied that he [defendant] sought the combat with a felonious intent, they
might have found him guilty of murder; in which event, he could not be heard to say that
a conviction for manslaughter is erroneous" citing State v. Lindsey, 19 Nev. 47
49 Nev. 194, 204 (1926) State v. Oschoa
On the other hand, if they were satisfied that he [defendant] sought the combat with a
felonious intent, they might have found him guilty of murder; in which event, he could not be
heard to say that a conviction for manslaughter is erroneous citing State v. Lindsey, 19
Nev. 47, 5 P. 822, 3 Am. St. Rep. 776.
Mr. Wharton, in his work on criminal law (volume 2, sec. 932), says:
It is no defense to an indictment for manslaughter, that the homicide therein alleged
appears by the evidence to have been committed with malice aforethought, and was,
therefore, murder; but the defendant, in such case, may notwithstanding be properly convicted
of the offense of manslaughter.
Where the indictment charges a higher degree of felonious homicide and the verdict is for
a lesser degree or grade included within the higher, the general rule is thus stated in 13 R.C.L.
pp. 757, 758:
It is deemed to be wholly within the province of the jury to fix the punishment; and even
though the evidence may fully disclose that the defendant was guilty of a higher degree than
that found against him, still the verdict cannot be disturbed for that reason. The courts
recognize that it is not an uncommon thing for a jury, out of sympathy, or what they conceive
to be extenuating circumstances, to find the defendant guilty of a lower degree or grade of
offense than that of which the evidence clearly convicts him; but the fact that they do so is not
a ground of reversal of the verdict and judgment.
The following statement of the rule is found in 17 C.J. p. 362:
Defendant cannot complain of error in finding him guilty of a lower degree of crime than
the one shown by the evidence.
See cases cited in note 94.
8. Appellant, in the opening brief, concedes that the undisputed evidence clearly
establishes a voluntary killing under circumstances amounting at least to murder in the
second degree, and concedes that if the attending circumstances be considered at all, they
were in aggravation of the offense rather than in mitigation.
49 Nev. 194, 205 (1926) State v. Oschoa
circumstances be considered at all, they were in aggravation of the offense rather than in
mitigation. If this concession is admitted, then, under the rule stated, the appellant cannot be
heard to complain because the jury by its verdict extended to him the grace of lesser
punishment than the facts warranted.
9. But the verdict of involuntary manslaughter was not improper in this case for another
reason. There were no eyewitnesses to the killing. Presumptively, every killing is murder, and
while the physical facts in this case indicate a voluntary killing, yet involuntary manslaughter,
or even justifiable homicide, were not outside the range of possibility. The circumstances do
not preclude murder, nor do they exclude any other lower grade of the offense. Under such
circumstances it was proper for the court to instruct as to all grades of the offense, and it was
for the jury to infer from all the circumstances the degree of guilt. 30 C.J. 397. The general
rule in such cases is thus stated in the authority last cited as follows:
Where there were no eyewitnesses to the killing and the evidence is purely circumstantial,
the court should instruct the jury as to the different grades of homicide, * * * unless it is
evident from the whole proof that defendant is either guilty of murder, or innocent.
The facts of this case do not bring it within the exception above stated, for,
notwithstanding appellant concedes a case of murder, the evidence does not show it to be
such. While the fact that deceased was shot twice, once in the body and once in the head,
indicating a voluntary killing which could have been either murder, voluntary manslaughter,
or a justifiable homicide, still it could have been an unintentional killing in the course of an
assault with a deadly weapon. As previously stated, evidence discloses that there was a hard
struggle between the deceased and his slayer. Under such circumstances it was not for the
court to say that an unintentional killing was precluded by the facts.
In Hasenfuss v. State, supra, in which the indictment charged murder by administering
poison, and the verdict for voluntary manslaughter was found by the jury and upheld by
the court, the court said that it was difficult to conjecture a case where the crime of
manslaughter can be said to be committed by means of administering poison, but that the
jury discovered such a case, notwithstanding the assertion of counsel that none under
any circumstances could be imagined.
49 Nev. 194, 206 (1926) State v. Oschoa
for voluntary manslaughter was found by the jury and upheld by the court, the court said that
it was difficult to conjecture a case where the crime of manslaughter can be said to be
committed by means of administering poison, but that the jury discovered such a case,
notwithstanding the assertion of counsel that none under any circumstances could be
imagined.
The defendant in the case of State v. Crockett, 39 Or. 76, 65 P. 447, cited in respondent's
brief, was indicted for murder in the first, and convicted of murder in the second, degree for
killing her husband. Proof of the manner and circumstances of the killing, and the defendant's
connection therewith, was entirely circumstantial. The court in the course of its opinion
affirming the judgment said:
The deceased was shot while in bed, some time during the night. At the time the only
persons in the house were the defendant, the deceased, and their three small children, the
latter of whom were asleep. The defendant denied any participation in the killing, and
claimed that it was a case of suicide. The question, therefore, as to when and by whom the
killing was donewhether by the deceased himself or by the defendant, and, if by the
defendant, whether purposely and of deliberate and premeditated malice, or purposely and
maliciously, but without deliberation and premeditation, or in a sudden heat of passionwas
a mere matter of inference from the testimony; and therefore the degree of the defendant's
guilt, if guilty at all, was for the jury to determine from the entire circumstances of the case,
and not the court.
See, also, Stanley and Nix v. Commonwealth, 184 Ky. 237, 211 S.W. 577.
10. Error is assigned as to the action of the court in requiring appellant to remove his coat
and shirt and permit the jury to see the scars on his body; and to don the shirt introduced in
evidence, and submit to an inspection by the jury. It is contended that his constitutional
privilege from being a witness against himself in a criminal case was violated by this
proceeding.
49 Nev. 194, 207 (1926) State v. Oschoa
The contention has been resolved against appellant by a former decision of this court in the
case of State v. Ah Cheuy, 14 Nev. 79, 33 Am. Rep. 530, in which case the trial court
compelled defendant, against his objection, to exhibit his arm so as to show certain tatoo
marks thereon to the jury. With that decision we are in entire accord. We are satisfied that the
constitutional provision invoked by appellant relates solely to testimonial compulsion. Holt v.
United States, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138; State v. Barela
et al., 23 N. M. 395, 168 P. 545, L.R.A. 1918b, 844; Wigmore on Evidence, vol. 4, secs. 2263
and 2265.
As in the case of State v. Ah Cheuy, there was nothing in the proceeding complained of in
this case which tended to humiliate or degrade appellant or otherwise prejudice him before
the jury.
11. The court sustained an objection to the following question asked on cross-examination
of Peggy Parrott: Q. Did any other person ever come to your door before this time? There
was no limit as to time in this question. While a wide latitude of cross-examination should be
allowed in a criminal case, the court is empowered to keep such examination within proper
limits. Counsel reframed the question in the following manner: Q. Did any Mexican other
than this man come to your house about that time? The witness was permitted to answer.
There was no error in the ruling complained of.
The ruling of the court in permitting the sheriff to testify that the shirt found in the cabin of
the deceased on the morning of the discovery of the body fitted the appellant, and that the cut
and hole in the left sleeve corresponded with scars on defendant's body, is assigned as error. If
it were error to allow the witness to state these conclusions, it was rendered harmless by the
fact that the jurors were permitted to see the shirt on the appellant's body and instructed to
draw their own conclusions. In this regard, at appellant's request, the jury was correctly
instructed as follows:
The court instructs the jury that it is the law that when a witness has testified to certain
physical facts based upon his inspection of the same, and the jurors have had an equal
opportunity of inspecting the same physical facts, it is the duty of the jurors to draw their
own conclusions from their own inspection of such physical facts."
49 Nev. 194, 208 (1926) State v. Oschoa
when a witness has testified to certain physical facts based upon his inspection of the same,
and the jurors have had an equal opportunity of inspecting the same physical facts, it is the
duty of the jurors to draw their own conclusions from their own inspection of such physical
facts.
There being no prejudicial error in the record, the judgment is affirmed.
May 11, 1926.
Per Curiam:
Rehearing denied.
____________
49 Nev. 208, 208 (1926) Ex Parte Anderson
EX PARTE ANDERSON
No. 2709
January 12, 1926. 242 P. 587.
1. AutomobilesConstitutional LawStatute Requiring Licensing of Motor Carriers Held
Constitutional.
Stats. 1925, c. 162, requiring motor carriers operating over highways of the first class to procure
license, held not violative of due process of law or equal protection of laws.
2. StatutesStatutes Not Void for Uncertainty if Any Practical or Sensible Effect May Be
Given It.
A statute will not be held void for uncertainty if any practical or sensible effect may be given it, and
mere difficulty in ascertaining its meaning or fact it is susceptible of interpretations will not render it
nugatory.
3. StatutesA law, Imperfect in Details, Not Void Unless Execution Thereof Impossible.
A law, though imperfect in its details, is not void unless it is so imperfect as to make it utterly
impossible to execute it.
4. StatutesStatute Licensing of Motor Carriers Operating on First-Class Highways Not
Void for Uncertainty.
Stats. 1925, c. 162, requiring license for the operation of common carrier motor vehicles, held not
void for uncertainty, as applied to operator of motor carrier operating on route consisting only partially of
first-class highways as defined in section 2, and not void because it will render business unprofitable.
See (1) 28 Cyc. p. 33, n. 72; (2, 3, 4) 36 Cyc. p. 968, n. 88; p. 969, n. 91.
Original application by Lucian Neal Anderson for a writ of habeas corpus. Proceeding
dismissed, and petitioner remanded to custody. Rehearing denied. (McNamara, District
Judge, dissenting.)
49 Nev. 208, 209 (1926) Ex Parte Anderson
Harwood & Tippett and Chandler & Quayle, for Petitioner:
Stats. 1925, c. 162, upon which complaint is based, is illegal and void because it is so
conflicting as to be unintelligible. Section 1 requires annual license; section 2 requires
semiannual license based upon gross receipts; no provision is made for applying for license
by one who has not previously been in business; section 1 applies to those who may hereafter
be permitted to use highways for hire; section 2 applies to each operator on first-class
highways for hire. In Re Hendricks, 57 P. 965; People v. Sweitzer, 107 N.E. 902.
Act is in violation of section 21 of article 4 of state constitution because those subject
thereto are same as are permitted to use highways for hire, who are also subject to act of
1919, c. 109, as amended, which exempts taxicabs and other vehicles which are often
operated on first-class public roads, especially out of Reno.
Act discriminates against petitioner in whose routes of about 63 miles only 1 1/2 miles are
concrete and balance common dirt, by requiring as large a tax as if he used first-class highway
on entire route.
Classification of highways is not based on any natural or reasonable basis. 5 Cal. Jur. pars.
188 to 214; 37 C.J. 198; 6 R.C.L. 403; Gulf etc. Ry. v. Ellis, 165 U.S. 150.
Act is in violation of article 14 of amendments to constitution of United States in that it
denies equal protection of laws.
M. A. Diskin, Attorney-General, and Thos. E. Powell, Deputy Attorney-General, for
Respondent:
Public service commission law and Stats. 1925, c. 162, in so far as they relate to motor
carriages for hire, apply only to common carriers.
Classification into private and common carriers is everywhere recognized.
On call operators must procure certificates of public necessity, same as if they operated
between fixed termini.
Taxicabs are exempted only when they operate within limits of cities. "Or" may be read
"and" in clause, "or engaged in the transportation of persons or property for hire
exclusively within the limits of a city or town of the State of Nevada." Popular use of
words "or" and "and" is loose; when used in statute they are convertible as sense may
require. 2 Lewis' Sutherland Statutory Construction {2d ed.), 757; People v. Rice, 33 N.E.
S46.
Statute should receive, if possible, construction which makes it constitutional. V. & T.
49 Nev. 208, 210 (1926) Ex Parte Anderson
limits of cities. Or may be read and in clause, or engaged in the transportation of
persons or property for hire exclusively within the limits of a city or town of the State of
Nevada. Popular use of words or and and is loose; when used in statute they are
convertible as sense may require. 2 Lewis' Sutherland Statutory Construction (2d ed.), 757;
People v. Rice, 33 N.E. 846.
Statute should receive, if possible, construction which makes it constitutional. V. & T.
R.R. Co. v. Hinry, 8 Nev. 165; State v. Martin, 32 Nev. 198.
Where procedure gives reasonable notice and fair opportunity to be heard, due process
clauses are not violated. Hallinger v. Davis, 146 U.S. 320; U.S. v. Crukshank, 92 U.S. 542.
Legislature has right to classify for purposes of legislation, exercises wide discretion in
that regard, and its acts can be overthrown only when unreasonable and arbitrary. Matter of
Stephens, 148 P. 196; Lindsley v. Gas Co., 220 U.S. 61.
Classification of highways is based on relative cost.
Tax applies equally to all persons who operate common carriers over first-class highways.
Right of equal protection is not denied where same law applies to all similarly situated.
Tinsley v. Anderson, 171 U.S. 106; Denver v. N.Y. Trust Co., 229 U.S. 123.
All parts of act should be considered together, not each part by itself. Verdi L. Co. v. Bartlett,
40 Nev. 317.
OPINION
By the Court, Sanders, J.:
This is an original proceeding on habeas corpus. The chief justice being temporarily absent
and the parties having requested that the matter be heard and determined by a full court, the
governor appointed Hon. J.M. McNamara, judge of the Fourth judicial district, as judge pro
tem. of this court for this particular case.
The question involved relate to the interpretation and constitutionality of an act approved
March 21, 1925, chapter 162, Statutes 1925, entitled "An act providing for a license for
the operation of common-carrier motors and vehicles, and other matters relating
thereto."
49 Nev. 208, 211 (1926) Ex Parte Anderson
chapter 162, Statutes 1925, entitled An act providing for a license for the operation of
common-carrier motors and vehicles, and other matters relating thereto.
Omitting its lengthy preamble, the act reads as follows:
Section 1. Every person, company, association and corporation who is now or who may
hereafter be permitted to use the public highways of this state for the transportation of
property or passengers for hire in any established common-carrier truck or passenger line
must procure annually a license therefor from the public service commission of Nevada, and
make payment for such license as hereinafter provided.
Sec. 2. Each operator of a motor vehicle or vehicles within this state who transports or
desires to transport persons or property for hire or compensation over any public highway
designated as first-class highways within this state shall file with the public service
commission of Nevada on a form to be provided by said commission on or before July 1,
1925, and each semiannual period thereafter an application for a license which shall state the
gross earnings from operation derived by the applicant operator from the operation of said
motor vehicle or vehicles within the state for the semiannual period prior to the date of such
application.
Classes of Highways DefinedAny highway of Portland cement concrete, bituminous
concrete, asphalt, or other hard surface, shall be considered a highway of the first-class. Any
highway with a surface of gravel, crushed rock, or shale shall be considered a highway of the
second-class. Any public earth, gravel, or rock road not included in the foregoing two classes
is to be considered a highway of the third-class.
Sec. 3. Such license shall be issued by said public service commission of Nevada to any
operator of motor vehicles for hire who may have been granted, or who is granted a certificate
of public convenience and necessity, upon payment of 4% of said operator's gross earnings
derived from the operation of such motor vehicles during the preceding six {6) months, and
said license shall be payable semiannually; provided, that there shall be deducted from
said 4% of gross earnings the amount of any plate or registration license.
49 Nev. 208, 212 (1926) Ex Parte Anderson
during the preceding six (6) months, and said license shall be payable semiannually;
provided, that there shall be deducted from said 4% of gross earnings the amount of any plate
or registration license.
Sec. 4. All moneys collected for licenses under the provisions of this act shall be turned
over by the said public service commission to the state treasurer of the State of Nevada, who
shall annually distribute the said funds to the counties proportionate to the length of roads
used and licenses affecting each county of the state, and said funds shall go into the road fund
of such county.
Sec. 5. Any person, company, association or corporation who shall engage in the business
of transportation of property or passengers in any established common-carrier truck or
passenger line within the State of Nevada, without having procured a license therefor as
prescribed by this act, shall be deemed guilty of a misdemeanor and upon conviction thereof
shall be punished by a fine of not less than fifty ($50) dollars nor more than two hundred and
fifty ($250) dollars; provided, that each day's operation shall be considered a separate offense.
Sec. 6. This act shall be in full force, effect and virtue on and after July 1, 1925.
1. After giving due weight to the argument of counsel, we are unable to reach the
conclusion that the statute is void for repugnancy to the constitution, in that it is violative of
due process of law and denies the equal protection of the laws. Huddy on Automobiles (5th
ed.) sec. 61; The Law Applied to Motor Vehicles, Babbitt (3d ed.), secs. 95 and 96.
The argument is advanced that the statute is void for uncertainty. This contention is
argumentative, and in order to make the petitioner's position clear it is necessary to give a
brief statement of the admitted facts. The petitioner was arrested on the 3d day of July, 1925,
upon a warrant of arrest issued out of the justice's court of East Fork Township in and for
Douglas County, upon a complaint charging him with the crime of transporting persons and
property for hire by motor vehicle in an established common carrier, truck and passenger line
over a first-class highway, without having procured from the public service commission of
Nevada a license so to do."
49 Nev. 208, 213 (1926) Ex Parte Anderson
line over a first-class highway, without having procured from the public service commission
of Nevada a license so to do. It is conceded that the petitioner when arrested was engaged in
transporting persons and property for hire by motor vehicle over the public highway between
fixed termini, to wit, between Minden in Douglas County and Fredericks Ranch in Mineral
County. In transporting persons and property for hire in his established line he traveled over a
first-class highway as defined by the statute between fixed termini, to wit, Minden and
Gardnerville in Douglas County. It is conceded that this particular first-class highway was
constructed or improved with federal, state, and county aid and is under the control of the
state highway department.
2-4. The question for determination is whether the transportation by the petitioner of
persons and property for hire over this particular first-class highway is within the meaning of
the statute. Section 2 of the act is a legislative declaration to the petitioner that in order for
him to operate over any first-class highway he must procure the license in the manner
provided in the section. The fact that the petitioner's established line extends beyond the
termini of the first-class highway traveled is no argument against the validity of the statute. A
statute will not be held void for uncertainty if any sort of practical or sensible effect may be
given it. Mere difficulty in ascertaining its meaning, or the fact that it is susceptible of
interpretations, will not render it nugatory. State v. State board of Examiners (Mont.) 238 P.
316; Adams v. Greene, 182 Ky. 504, 206 S.W. 759. The statute under consideration may not
accomplish its purposes as fully as the legislature designed, but that does not render it void.
Though a law is imperfect in its details, it is not void, unless it is so imperfect as to make it
utterly impossible to execute it. Gordon v. State, 46 Ohio St. 607, 23 N.E. 63, 6 L.R.A. 752;
36 Cyc. 968. In so far as the statute under review relates to any first-class highway, it is a
complete law and enforceable. Its enforcement in this particular case may result in loss of
profits and render the petitioner's business unprofitable, but this is no argument against the
validity of the statute.
49 Nev. 208, 214 (1926) Ex Parte Anderson
validity of the statute. In such a case the petitioner's remedy lies with the legislature and not
with the courts. In order that the statute may be given any sort of practical or sensible effect, it
must be interpreted to mean what section 2 of the act announces: That each operator of a
motor vehicle who transports or desires to transport persons or property for hire over any
public highway designated as first-class highway must make application for the license in the
manner provided in the section. To give the statute any other interpretation would defeat its
purpose to impose a license tax upon those who transport persons or property for hire over
any first-class highway and render it nugatory.
We have considered the other objections urged against the validity of the act, but find
them to be untenable. We therefore order that this proceeding be dismissed, and the petitioner
remanded to the custody of the constable of East Fork Township for Douglas County, to be
dealt with by the State of Nevada as it may be advised by the attorney-general.
Ducker, J.: I concur.
McNamara, District Judge, dissenting:
I am compelled to dissent from some of the views and the conclusions reached by my
learned associates as expressed in the majority opinion in this proceeding.
Petitioner contends that the act in question is so indefinite and uncertain that it is
impossible to ascertain the intent of the legislature at the time of the enactment of the statute,
and that the same is therefore inoperative and void.
It is a well-established rule of law that
Where an act of the legislature is so vague, indefinite and uncertain that the courts are
unable to determine with any reasonable degree of certainty what the legislature intended, or
is so incomplete or is so conflicting and inconsistent in its provisions that it cannot be
executed, it will be declared to be inoperative and void.
See 25 R.C.L. 810, art. 62, and note.
Section 1 of the act seems to require of every operator of motor vehicles who operate for
hire over any of the public highways of the State of Nevada, regardless of the
classification of such highways, to procure a license for such operation in accordance with
the later provisions of the act itself.
49 Nev. 208, 215 (1926) Ex Parte Anderson
of motor vehicles who operate for hire over any of the public highways of the State of
Nevada, regardless of the classification of such highways, to procure a license for such
operation in accordance with the later provisions of the act itself. The second provision of the
act seems to require only that those operators who operate over first-class highways shall
procure a license and pay the tax.
My learned associates, in construing and interpreting the act, construe the same to mean
that every operator of motor vehicles, who operates as a common carrier for hire of persons or
property over any of the highways of the state, is subject to the provisions of the act with
reference to the procurement of a license and the payment of the tax. If this is the proper
construction of the act, I am at a loss to understand why it was necessary to make any
classification of highways whatsoever as is done in paragraph 2 of section 2 of said act.
Further, if such is the proper interpretation of the act, I am at a loss to understand why it was
necessary to incorporate in said act any part of section 2.
It is apparent from the act, by a reference to the preamble, that it was the intent of the
legislature to in some manner tax operators of motor vehicles who operate as common
carriers over public highways of the State of Nevada. If it was the intention of the legislature
to tax operators regardless of the class of highways over which they operated, certainly they
could have used language which would have made this intention clear, and it would not have
been necessary to incorporate in said act section 2 thereof. If it was the intention of the
legislature to tax only those operators who operate over first-class highways, likewise the
legislature could have employed language which would have made such intention plain and it
would not have been necessary to include in the act section 1 thereof.
The fact that the legislature saw fit to incorporate into the act section 2 thereof seems to
indicate that they intended to make a further classification with reference to the application of
the tax; that is, it seems to me to be plain that the legislature intended to classify operators
operating over the various classes of highways, with reference to the application of the
tax, and that this classification in some way was left out of the act.
49 Nev. 208, 216 (1926) Ex Parte Anderson
operating over the various classes of highways, with reference to the application of the tax,
and that this classification in some way was left out of the act. What their intention was in
this regard certainly cannot be ascertained from the act itself by any rule of statutory
construction that I am aware of. If the legislative intent cannot be determined from the act, the
court is not at liberty to supply one by legislating itself; the court's function in this regard
being that of interpretation and construction, and not legislation.
After a very careful study of the act, I am unable to ascertain whether or not the legislature
intended to tax operators who operated over any class of highways, or only those who
operated over first-class highways.
It is stated in State v. Partlow, 91 N.C. 550, 49 Am. Rep. 652, that, if no judicial certainty
can be settled upon as to the meaning of the statute, the courts are not at liberty to supply
one. It must be capable of construction and interpretation; otherwise, it will be inoperative
and void.
Since I have been unable to place any interpretation or construction upon the act in
question from which a judicial certainty can be determined upon as to the meaning of the
statute, or the intent of the legislature, therefore, in the light of the above rule, I feel that I am
compelled to conclude that the statute is void, and, in so doing, I am very mindful of the rule
that it is the duty of courts, if reasonably possible, to so construe a statute as to give it effect.
With reference to the other grounds urged by petitioner, upon which he declares the statute
to be unconstitutional and void, I am inclined to agree with my associates as to their
reasoning and conclusions.
In view of the reasons asserted above, I am of the opinion that petitioner should be
discharged.
On Petition for Rehearing
July 19, 1926.
Rehearing denied. (McNamara, District Judge, dissenting.)
____________
49 Nev. 217, 217 (1926) State v. Jukich
STATE v. JUKICH
No. 2702
January 12, 1926. 242 P. 590.
1. HomicideEvidence Held to Support Conviction of Murder in First Degree.
Evidence held sufficient to support conviction of murder in first degree.
2. HomicideWhether Accused's Testimony that He Was So Intoxicated as To Be
Unconscious of what He Was Doing Was True Held Fact for Jury.
In prosecution for murder, whether accused's testimony that he was so intoxicated as to be
unconscious of what he was doing was true was question for jury.
3. Criminal LawNew Trial Should Not Be Granted For Incompetency or Neglect of
Accused's Counsel, Unless Accused Is Prejudiced and Deprived of Fair Trial.
New trial should not be ordered by appellate court because of incompetency or neglect of accused's
counsel, unless it is such that accused was prejudiced and thereby deprived of fair trial.
4. Criminal LawFailure of Accused's Counsel to Move for Change of Venue Held Not
Such Incompetency or Neglect as Warrants Reversal of Conviction.
In prosecution for murder, failure of counsel to move for change of venue held not such negligence
and incompetency as warrants reversal of conviction.
5. Criminal LawExamination of Juror on Voir Dire Held Not to Disclose Such Negligence
and Incompetence of Counsel as to Require Reversal.
Examination of jurors on voir dire by counsel for defendant in murder trial held not to show
negligence and incompetence of counsel as to warrant reversal of conviction.
6. Criminal LawFailure of Accused's Counsel to Object to Immaterial Evidence Held Not
to Show Such Incompetency as Would Warrant Reversal of Conviction.
In prosecution for murder, failure of accused's attorney to object to admission of immaterial evidence
held not to indicate such neglect and incompetency as would warrant reversal of conviction.
7. Criminal LawFailure of Accused's Counsel to Examine Nine-Year-Old Witness for
State as to Competency Held Not Such Neglect and Incompetency as Would Warrant
Reversal of Conviction.
In prosecution for murder, failure of accused's counsel to examine child witness as to her competency,
in view of her testimony, held not to show such neglect and incompetency by accused's counsel as would
warrant reversal of conviction, since court is primarily charged with duty of determining competency in
such cases.
49 Nev. 217, 218 (1926) State v. Jukich
8. Criminal LawOn Appeal It Will Be Presumed that Court Found Child Witness Competent.
On appeal it will be presumed that court was convinced that child witness was competent.
9. Criminal LawTestimony Showing Motive Elicited from Accused by His Attorney Held Not to Show Such
Incompetency as to Warrant Reversal of Conviction.
In prosecution for murder, testimony of accused elicited by his counsel, although harmful, as
disclosing motive, in view of fact that state had introduced accused's statements to same effect, was not
prejudicial, and did not show such incompetency of accused's counsel as would warrant reversal of
conviction.
10. Criminal LawFact that Accused's Counsel Defended on Ground of Extreme
Drunkenness and Lack of Intent Held Not to Show Such Incompetency as to Warrant
Reversal of Conviction.
In prosecution for murder, fact that accused's counsel defended on wrong theory of extreme
drunkenness and lack of intent, in absence of showing that accused had any other defense, was not such
incompetency as to warrant reversal of conviction.
11. Criminal LawIn Absence of Objections, Errors in Admitting Evidence Are Not
Reviewable even in Capital Cases.
The rule that errors in admission of improper evidence are not reviewable unless objected to on trial
applies to capital cases.
12. Criminal LawInstruction Defining Murder in First Degree Held Not to Indicate
Opinion, in View of Other instructions.
Instruction on kinds of first degree murder, though somewhat ambiguous, held not misleading, as
indicating court's view that facts showed premeditation and deliberation, in view of other instruction
requiring proof of such elements beyond reasonable doubt.
13. Criminal LawInstruction as to Effect of Drunkenness on Liability for Killing Held
Proper.
In prosecution for murder, instructions that evidence of drunkenness must be received with caution,
and as to effect of drunkenness on liability for offense and as affecting degree thereof, held proper.
14. HomicideEvidence of Drunkenness Should Be Received with Caution.
As general rule, in cases of homicide evidence of drunkenness should be received with caution.
15. Criminal LawIf Evidence Is of Such Character that Its Weight May Be Easily
Misjudged, Court May Properly Advise that it Should Be Received with Great
Caution.
When evidence is of such character that its weight may be easily misjudged, it is proper for court to
advise that it should be received with great caution, which does not mean that it is not entitled to
credit even if believed, but merely that it should be weighed with care.
49 Nev. 217, 219 (1926) State v. Jukich
not entitled to credit even if believed, but merely that it should be weighed with care.
See (1, 2, 14) 29 C.J. sec. 21, p. 1061, n. 23; 30 C.J. sec. 559, p. 312, n. 42; sec. 585, p. 333, n. 44; sec. 590, p.
336, n. 79; sec. 614, p. 361, n. 40, p. 362, n. 51; sec. 646, p. 402, n. 78; (3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15) 16
C.J. sec. 2642, p. 1145; n. 37, 39, 40, 41 (new), 42; 17 C.J. sec. 3331, p. 56, n. 16; sec. 3569, p. 223, n. 37; sec.
3754, p. 369, n. 26, p. 595, n. 26.
Appeal from Ninth Judicial District Court, White Pine County; C.J. McFadden, Judge.
Stanko Jukich was convicted of murder in the first degree, and he appeals. Affirmed, with
directions. Rehearing denied.
King & Schulder and C.E. Handwright, for Appellant:
Defendant was deprived of constitutional right in not having had testimony interpreted to
him in language he understood.
There is no evidence of premeditation and deliberation, the very essence of first degree
murder. It is incumbent on state to show defendant was of sound mind and disposing memory
to justify that degree. One so intoxicated as to be incapable of rational thinking cannot
premeditate or deliberate. 13 R.C.L. 710; Utah v. Anselmo, 148 P. 1079.
Negligence or incompetence of defendant's counsel which prevents fair trial warrants
reversal. State v. Swayze, 30 La. Ann. 1323; State v. Jones, 12 Mo. App. 93.
Appellate courts, especially in capital cases, will examine into and correct errors, though
not properly assigned, which affect substantial rights of defendant. This exception to general
rule. 17 C.J. 50; Fritz v. State, 128 P. 170; Wiborg v. U.S., 163 U.S. 632; Anthony v. State,
159 P. 934.
M. A. Diskin, Attorney-General, and H. W. Edwards, District Attorney, for the State:
Defendant understood and spoke English. It was his duty, if he did not understand
testimony, to call court's attention to fact.
49 Nev. 217, 220 (1926) State v. Jukich
attention to fact. He cannot remain silent and in case of unfavorable verdict ask for second
trial with interpreter. State v. Cabodi, 138 P. 262; State v. Rusos, 219 P. 843.
Evidence was that defendant was not intoxicated. No insane, irresistible impulse was
shown. Instruction on insanity was properly refused. Court is bound to instruct on defendant's
theory only when facts warrant it. 13 R.C.L. 933; 30 C.J. 359.
Defendant received as good defense as crime afforded. Only conclusion possible to
unbiased mind is that only error committed was that of defendant in shooting to death little
fifteen-year-old girl.
OPINION
By the Court, Ducker, J.:
Appellant was convicted of the crime of murder of the first degree, and the penalty of
death was imposed. He appeals from the judgment and order denying his motion for a new
trial. The grounds urged on this appeal for a reversal of the judgment may be grouped under
three heads, namely, insufficiency of the evidence to support the verdict of murder of the first
degree; incompetency of counsel who represented appellant in the court below; and
misdirection of the jury by the court. These will be considered in the order stated.
On the 14th day of February, 1925, at the home of her parents in Ruth, White Pine County,
Nevada, appellant shot and killed Jennie Madek, a young girl between 15 and 16 years of age.
The parents of the deceased and the appellant are natives of Jugo-Slavia. The appellant is 28
years of age, and had lived in White Pine County for about 11 years before the killing. For
about two months immediately prior thereto he had been at Gold Hill, Nevada, and returned
to Ruth the day before the homicide. He had boarded with the parents of the deceased for
about 18 months prior to his leaving Ruth for Gold Hill. The circumstances immediately
surrounding the killing are as follows:
Appellant came to the house where the girl lived at about 3 o'clock in the afternoon and
remained there until he killed her four or five hours later.
49 Nev. 217, 221 (1926) State v. Jukich
about 3 o'clock in the afternoon and remained there until he killed her four or five hours later.
Besides the appellant there were four eyewitnesses to the shootingthe mother and a sister of
the deceased, Mrs. Madek and Katie Madek, a girl 9 years of age, and two Americans whose
names are Alfred Le Prowse and W.C. Mosher. Le Prowse and Mosher came to the Madek
house five or ten minutes before the shooting took place. They came there to get a drink of
wine, and found the persons named present, including an infant child of the Madeks. They
had two drinks of wine. Appellant joined them in the last drink, and drank about a fourth of a
glass. There is little difference in their testimony. Appellant was standing about four feet from
Jennie when he suddenly pulled his gun and shot her. Prior to the shooting they did not hear
appellant say anything to Jennie, but Le Prowse testified he had heard appellant talking to
Mrs. Madek in a foreign language. Both witnesses testified that they saw no signs of anger on
the part of the appellant or the others. Mosher testified that appellant appeared to be normal
and that he saw no evidence of his being badly intoxicated. Both witnesses left the house
immediately after the shot was fired, and Mosher testified that he heard the report of a second
shot just as they were leaving the house. Katie Madek in her testimony gave the following
version of the circumstances of the shooting:
I was in my father's house the night that Jennie was shot. My mother and two Americans
and Stanko and my little brother were there. Brother is a baby 2 1/2 years old. My sister was
standing by two doors wiping my father's bucket. Stanko was sitting on a chair, and he got up
and stood by the stove. He put his foot on the chair, and his left hand was in his left coat
pocket. He was taking when two Americans came in. They asked Stanko if he had any wine,
and he said, Just a glass of water.' My mother gave the two men a glass of wine. They drank
just one glass, and my mother said, I forgot Stanko,' and gave him a glass of wine. He drank
just three drops. He did not act like he was mad at any one and did not use any bad
language at any time.
49 Nev. 217, 222 (1926) State v. Jukich
mad at any one and did not use any bad language at any time. He did not say anything to
Jennie. Stanko pulled his left hand out of his pocket and shot her in the breast. Jennie fell
down. She tried to get up two times but couldn't. My mother took his arm, and he shot in the
roof. Two times he shot. My mother held his hand, and when he shot he opened the door and
ran out, andwell, he was going to shoot me and the gun wouldn't shoot, and then he hit me
and skinned by nose. He came back again to see if Jennie was dead. When he came back to
Jennie the second time he shot at her, and the gun wouldn't work, and he kicked Jennie in the
head and went out.
Mrs. Madek, the mother of the deceased, testified substantially as follows: Appellant
started to board with her on the 25th day of June, 1923, and left her boarding place on the
26th day of December, 1924. He came to the house on the afternoon of the 14th of February,
1925, with one Mike Smilanick, at about 3 o'clock in the afternoon. The latter remained until
her husband got home from work. He stayed there all the time until he shot Jennie. He did not
quarrel with anybody in the house and showed no sign of being angry about anything. Just
before the shooting he was sitting on a chair and got up and stood in front of the door. He
made one step towards Jennie and shot her. Mrs. Madek jumped at him and appellant said,
You are finished also. She grabbed him by the hand, and the bullet went straight into the
ceiling. Finding that she could not do anything with him she ran out of the house calling for
help. After he fired the second shot he was pulling at the trigger. He held the gun in his left
hand. The second shot hit the witness on the little finger. Before he shot Jennie he had been
talking of his marriage. He said that a fellow in Virginia City was his best man, and his wife
was there. Before the shooting he had been talking to Jennie in a nice way, and she asked him
why he did not bring his wife out. He replied that he could not until he had a house and a job.
The witness gave appellant three drinks of wine. She stated that he was not drunk.
49 Nev. 217, 223 (1926) State v. Jukich
After the shooting the appellant went to the house of one Tartan, and said he had killed
that girl. He gave the gun to Tartan, and was shortly afterwards taken into custody by a
deputy sheriff. The officer asked him what he had done, and he said he had killed a girl.
Asked why he did it, he said she would not marry him, and he was ready to go too. The
officer put him in a car and took him to jail. While on the way there the officer said he asked
appellant whey he killed the girl, and he replied, If I couldn't have her nobody else could,
and kept saying, Goodbye, sweetheart.
Questioned concerning his condition, the officer testified that he appeared to be normal;
that he would judge he had been drinking a little, but was sober and normal and did not
appear to be excited. Another deputy sheriff, who was present when appellant was taken into
custody and who went in the car with him to the jail, testified that appellant did not seem to
be drunk, and that he did not smell any liquor on him. Concerning statements made to him at
the time by the appellant, the following questions were asked and answers made:
Q. What did he say to you? A. * * * We went into the house and sat down, and I says,
Why did you kill the girl?' He says, They promised me the girlwe had a written
agreement'and then began rambling.
Q. Did he say written agreement? A. Yes; he said the parents of the girl and him signed
the agreement that he was to marry the girl when she became a little older.
Q. Did he exhibit any remorse over his action? A. None.
Q. What did he assign for his reason for killing her? Did he say anything about If I can't
have her no one else can?' A. He mentioned that as we came down; I believed he said that
coming down in the carit appears to me, but I am not quite positive. But he mentioned that
anyway that evening.
The appellant was taken to jail, and later in the evening was taken by a deputy sheriff to
the office of the district attorney, where he made a statement which was taken down by a
stenographer. The statement was transcribed by the stenographer and the transcript
introduced in evidence.
49 Nev. 217, 224 (1926) State v. Jukich
transcribed by the stenographer and the transcript introduced in evidence. It is as follows:
Statement of Sam Jukich:
Mr. Edwards: Sam, you know who I am, of course? A. I know who you are; I'll tell you
everything.
Q. You don't have to tell me anything if you don't want to. I am investigating this trouble
you had up at Ruth. If you want to tell me anything you can; but anything that you do tell me
will be used against you. A. Yes, sir; I tell you everything.
Q. What was the girl's name? A. Jennie Madek.
Q. Just tell me how this thing happened. A. Well, it was a little over two years ago, and I
came to her mother, and her mother had a little house to fix, and it wasn't in good shape, and
they were going to fix it a little; I was going to fix that house, and we was talking about it,
and so after a while she was going to promise to give me her daughter. And her daughter was
in the front room and everything was O. K. Her mother said, Which one do you want?' and I
said, The one this is the first to get married.'
Q. You wanted the oldest one? A. Yes. Her godfather was in the front room, and her
mother and her went in the front room, and I don't know what they said, and she came out and
said, I am going to be your wife any time from now; as soon as I get big enough to get
married.' And I got her godfather to witness it. Something like two or three months ago her
mother and father sent her to Washington; just wanted to bluff me because I spent all my
money, and I was supporting her with clothes and everything else, and as soon as she got a
little bigger, she went to Washington, and then I went away and as soon as I left her mother
went after her to bring her back.
Morris Roberts: You came in from Gold Hill last night, didn't you? A. Yes, I came back
from Gold Hill last night, and I was talking to her about her promise, and she said, I don't
know.' I said, Tell me what has happened; don't you remember when you promised to be
mine?' And I said, What has happened that you refuse me?' And she said, 'I don't know.'
Then I got excited and I shoot.
49 Nev. 217, 225 (1926) State v. Jukich
refuse me?' And she said, I don't know.' Then I got excited and I shoot.
Q. Did you shoot her because she said she didn't know? A. But she did know.
Q. Was there any one there at the time? A. Two American fellows; I don't know their
names.
Q. Just the two American fellows and the girl and some other children and her mother
was there? A. Yes; they were there.
Q. How many times did you shoot her? A. Once.
Q. Is the girl dead?
Morris Roberts; Yes, she is dead.
Q. Where did this happen?
Morris Roberts: In the Madek house in Ruth.
Q. You wasn't drinking, was you? A. Yes; we were drinking.
Q. You were not drunk? A. Well; I was drinking.
Q. You are sober now; did you know what you were talking about? A. Yes, sir.
Q. What did you do with the gun after you shot the girl? A. After I shot her I went
outside, and I threw it away about 20 yards from the house.
Q. What kind of a gun was it? A. A 25 automatic.
Q. What you just told me, Sam, you told of your own free will? You told it to me without
me making you tell anything, is that it? A. I don't understand.
Morris Roberts: You wanted to tell the district attorney what you told? You wanted to tell
him the truth? A. Yes; it's the truth; I just tell the truth.
The appellant was a witness in his own behalf, and testified at length. His testimony covers
43 pages of the record. A large part of it is devoted to a marriage agreement which he claims
was made with him by the girl and her parents by which he was to have her in marriage; how
in pursuance of this agreement he bought all of the girl's clothes and gave her money; how he
furnished the material to build another room to the Madek home in which they were to live
after the marriage until they could get another room; and to the breaking of the agreement by
the girl and her parents.
49 Nev. 217, 226 (1926) State v. Jukich
He testified that he had no ill will towards the girl for breaking the engagement, and told her
that he did not care and would get another girl. He asked her who would return to him the
money he had expended on her. He also asked the girl's mother to return the money. He
declared that he had expended all of his money for her except the money he needed for his
board. He testified that after he left Ruth and went to Gold Hill he became engaged to a girl at
the latter place and married her; that he was unable to get a marriage license; that he tried to
get one at Virginia City and at Carson City, and was told that a license could not be obtained
because the girl was under age; that he considered himself married to the girl. He told her he
was going to Ruth and that when he got a house and a job he would send her a ticket to come
to him, and she said, All right. He told her he was going to Ely to get a marriage license.
Concerning the incidents on the night of the shooting and the afternoon preceding, he gave
substantially the following version: He was going to work in the morning and was going to
Mrs. Madek's house to get his lunch bucket, which he left there before he went to Gold Hill.
Mike Smilanick went with him. He asked Mrs. Madek for his lunch bucket, and she said, All
right. She asked him is he was married; he told her that he was and started to leave. She
asked him to have a drink, and brought in a half gallon of moonshine. Appellant, Smilanick,
and one Luchich drank all of it and paid for it. Another half gallon of moonshine was brought
in. They drank some of it, but appellant could not remember whether all of it was consumed
or not. His bucket was on the table and he picked it up and was going when Mrs. Madek said:
Stay a little longer; you have plenty of time to go. As far as he knew he drank no wine at
the house that day. The last event appellant could remember was the Madek family having
supper shortly after the second gallon of moonshine was brought out. His attention was called
to the testimony of the witness Le Prowse and Mosher, and he was asked if they were in the
house that day. He replied, I don't know."
49 Nev. 217, 227 (1926) State v. Jukich
know. He remembered nothing of the shooting, or of being taken to jail, or of making any
statements concerning the shooting. He was sober when he reached the house and had a gun
in his right-hand pants pocket. It was customary with him to carry a gun. On redirect
examination he testified that Mrs. Madek ran a bootleg joint in her home, and that he and
others had bought moonshine whisky there on other occasions. He also testified that it was
customary for people of his nationality to make agreements to marry the oldest daughter, and
that such agreements were generally considered binding.
No witnesses testified in behalf of appellant concerning the circumstances of the shooting.
Smilanick, who went with appellant to the house, was a witness in his behalf, and said that he
stayed there for half and hour or so; that they had some kind of liquor to drink which looked
and tasted like moonshine. He saw the appellant take one drink. Neither he nor the appellant
paid for the drinks. George Jukich testified that he had been to Mrs. Madek's house about two
years before the trial a number of times when appellant was present and drank moonshine
whisky on those occasions.
Tom Zupin testified to having been at the house three or four different times, and to
drinking wine and moonshine whisky. He paid Mrs. Madek two bits a drink for it. The last
time he had liquor there was about two months before the trial.
Mrs. Mike Delich, another of appellant's witnesses, testified that she lived next door to
Mrs. Madek; that appellant came to her house on the 14th of February last, and stayed
somewhere near a half or three quarters of an hour; that he drank a bottle of wine while there;
that he did not talk about the Madek family and did not seem to be angry; and that when he
left there he told her that he was going to Mrs. Madek's to get his bucket, as he was going to
work in the morning. The witness also said that Jennie was a well dressed girl compared to
other girls in Ruth; and that she was the best dressed girl.
Vide Mommich, a witness for appellant, corroborated him as to the marriage agreement,
and also said that he heard Jennie asking him for money to buy dresses.
49 Nev. 217, 228 (1926) State v. Jukich
him as to the marriage agreement, and also said that he heard Jennie asking him for money to
buy dresses. A witness by the name of Joe Miller testified to statements made to him by Mrs.
Madek to the effect that she had detained appellant by talking to him when he came to the
house for the lunch bucket.
Another witness, also named Joe Miller, testified that on the night of the 13th of February
appellant asked him for a job. He told appellant that there was a vacant place, and he would
speak to the foreman for him.
In rebuttal for the state, Mrs. C.L. Grier testified that she had charge of a department in the
J.C. Penny Company. She was acquainted with Mrs. Madek and Jennie Madek. They came
into her department last graduation time. The latter bought a dress, and the mother paid for it.
The selling price was $19.19.
Pete Lukich, in rebuttal, said that he was in the Madek house on the 14th of February from
2 o'clock to about 10 minutes after 5. He drank no whisky in that house on that day. He had a
glass of wine. He saw no whisky in the house that afternoon. Mrs. Madek was also called in
rebuttal. She said that appellant did not give her the money to buy Jennie's graduation dress.
She bought it for Jennie and paid $20 for it. She denied that appellant had ever demanded
$500 from her for clothes he had bought for Jennie. She denied that appellant ever bought her
daughter as much as nine dresses in two years, or fifteen pairs of stockings that cost $2.50 a
pair. She also denied having signed any written agreement that Jennie was to marry appellant
as he had stated in his testimony. She also denied that she had brought out the half gallon of
whisky as he had claimed. Formerly, on her cross-examination, she testified that she never
promised Jennie to appellant, and that he never bought her any clothes or anything of the
kind. She also testified on cross-examination that appellant spent no money in her house on
the 14th of February, and that he had wine to drink.
Some of the testimony we have set out has no bearing on the guilt or innocence of the
appellant, and has been stated in view of another assignment of error which we will next
discuss.
49 Nev. 217, 229 (1926) State v. Jukich
stated in view of another assignment of error which we will next discuss.
1. There is ample evidence to support the verdict of murder in the first degree. The killing
of the girl by appellant was established and not denied by him. He simply said that he did not
know that he killed the girl or what he did or said on the afternoon or night from the time he
drank a certain quantity of liquor. Consequently the circumstances of the killing and his
statements concerning it as detailed by the witnesses for the prosecution were in nowise
contradicted. The appellant, as the evidence shows, came to the house armed with a deadly
weapon concealed upon his person. Without provocation he used it with fatal effect upon an
innocent young girl. He attempted to kill the mother and a younger sister. According to the
testimony of the latter he struck her and kicked the prostrate form of the girl he had shot and
killed. He told the arresting officers that he killed her because she would not marry him and
to keep any one else from having her. He told the district attorney shortly after the shooting
that she had previously promised to marry him; that her mother had promised her to him, and
he had spent all of his money on her; and that on the night of the killing when he reproached
her for breaking her promise and she told him she did not know why she refused him, he got
excited and commenced to shoot. His statements disclosed a motive of revenge, and from all
of the circumstances the jury was warranted in concluding that the killing was done with
malice and deliberation.
2. Whether appellant's testimony to the effect that he was so intoxicated as to be
unconscious of what he was doing was true or not was for the jury to determine, and was
resolved against him by the verdict.
Counsel for the appellant in this court did not represent him at the trial of the case, and
they contend that his counsel in the court below handled the case so negligently and
unskillfully as to deprive him of the fair and impartial trial guaranteed by law and the
constitution. In support of this contention they point out that no motion for a change of
venue was made, and insist that the record discloses that there was no proper
examination of the jurors on their voir dire to ascertain their qualifications and state of
mind towards the appellant; that no challenges were interposed by him to any of the
jurors finally sworn to try the case; that the jury was obtained hurriedly and the trial
finished with unusual expedition; that no objections were interposed to leading and other
questions by the district attorney which elicited testimony and evidence inadmissible and
prejudicial to appellant; that appellant's counsel did not question the nine-year-old
daughter of the Madeks to test her capacity to testify as a witness; and that he defended
the case upon the wrong theory and drew from the appellant and other witnesses in his
behalf testimony prejudicial to him.
49 Nev. 217, 230 (1926) State v. Jukich
motion for a change of venue was made, and insist that the record discloses that there was no
proper examination of the jurors on their voir dire to ascertain their qualifications and state of
mind towards the appellant; that no challenges were interposed by him to any of the jurors
finally sworn to try the case; that the jury was obtained hurriedly and the trial finished with
unusual expedition; that no objections were interposed to leading and other questions by the
district attorney which elicited testimony and evidence inadmissible and prejudicial to
appellant; that appellant's counsel did not question the nine-year-old daughter of the Madeks
to test her capacity to testify as a witness; and that he defended the case upon the wrong
theory and drew from the appellant and other witnesses in his behalf testimony prejudicial to
him. Upon these alleged shortcomings counsel here make a strong appeal for the reversal of
the judgment. Whether appellant would have fared better under the guidance of other counsel
is, of course, entirely speculative, but, in view of the evidence upon which the jury found him
guilty, it is safe to say that he might have been convicted even if counsel of great skill had
defended him in the court below.
3. Ordinarily, the negligence or unskillfulness of counsel for a defendant in a criminal case
is no ground for a reversal. State v. Dreher, 137 Mo. 11, 38 S.W. 567; Sayre v.
Commonwealth, 194 Ky. 338, 238 S.W. 737, 24 A.L.R. 1017; Commonwealth v. Dascalakis,
246 Mass. 12, 140 N.E. 470; State v. Benge, 61 Iowa, 658, 17 N.W. 100; State v. Dangelo,
182 Iowa, 1253, 166 N.W. 587; Husdon v. State, 76 Ga. 727; Darby v. State, 79 Ga. 63, 3
S.E. 663. The contrary has been rarely held. It was so held in State v. Jones, 12 Mo. App. 93,
but the Supreme Court of Missouri in State v. Dreher, 137 Mo. 11, 38 S.W. 567, refused to
sanction the ruling, notwithstanding, as it admitted, the record in the former case presented a
most lamentable example of ignorance and incompetency, and that the trial court should have
afforded the remedy by setting aside the verdict and appointing a competent attorney for
the prisoner."
49 Nev. 217, 231 (1926) State v. Jukich
verdict and appointing a competent attorney for the prisoner.
We had occasion to say in State v. Clarke, 228 P. 582, that a case might be presented in
which an appellate court would probably feel that it was its duty to set aside a conviction for
errors committed by the trial court resulting in an unfair trial of the defendant, although no
objection or exception was made or taken to the improper admission or exclusion of evidence
because of the mistake or misconduct, neglect or incompetency of his counsel. We had in
view, of course an extreme case. In such a case this court would not feel bound by rules of
procedure to permit a palpable miscarriage of justice. The common dictates of humanity
would prescribe such a course, especially where human life is involved. It is to be noted that
in State v. Dreher, supra, which was a capital case, the court reviewed the record, and said:
* * * We think that the effort to obtain a new trial on account of the insufficiency of the
counsel who defended in the criminal court is without any just basis.
In Sayre v. Commonwealth, supra, also a capital case, the record was reviewed, and it was
held that there was no error of such seriousness or prejudice to the legal rights of the
defendant as to warrant a reversal. The court said:
Without overriding the general rule of law applied by this court and others of this
country, we cannot reverse the judgment and grant appellant a new trial on the grounds of the
incompetency and unskillfulness of appellant's lawyer, for it cannot be said that he has not
received a fair and impartial trial.
In State v. Bethune, 93 S.C. 195, 75 S.E. 281, the court, in deciding against the objection
of counsel's prejudicial mismanagement of the case, said:
The mental condition of the appellant's former attorney is not ground for a new trial,
because it has not been made to appear that it caused prejudice to his case.
49 Nev. 217, 232 (1926) State v. Jukich
It does not appear that he did or left undone anything which would probably have affected the
result.
The Supreme Court, in State v. Dangelo, 182 Iowa, 1253, 166 N.W. 587, in denying a new
trial, urged on account of the incompetency of counsel, said:
We do not say that the rights of the accused may not be so flagrantly disregarded by
counsel of his own choosing, and, as a consequence, justice so manifestly miscarry, as that a
new trial should be ordered.
In an earlier case the same court, upholding a judgment of conviction where a reversal was
urged on the grounds of incompetency of counsel, after stating that the rule was an almost
invariable one in civil cases, said:
In criminal cases, and especially in cases involving the life of the defendant, the court
would probably be justified in adhering to the rule somewhat less strictly. State v. Jones, St.
Louis Court of Appeals, May No., 1882, Western Jurist, 322. But in any case, to justify a
reversal upon this ground, there should be a strong showing both of incompetency and
prejudice. State v. Benge, 61 Iowa, 658, 17 N.W. 100.
We think that the rule deducible from these cases is that a new trial should not be granted
by an appellate court in a criminal case on account of the incompetency or neglect of counsel
unless it is so great that the defendant is prejudiced and thereby deprived of a fair trial. 16
C.J. 1145.
4. There is nothing in the record to disclose such a situation. Counsel in the lower court is
criticized for not having made a motion for a change of venue. The crime was indeed a brutal
one, but there is nothing to indicate that a fair and impartial jury could not have been
obtained, or that any public feeling existed in the community against the accused, or that any
hostile feeling had been manifested against him at all. So far as appears, such a motion, if
made, would have been properly denied. Counsel was not required to make idle motions.
49 Nev. 217, 233 (1926) State v. Jukich
5. We find nothing in the claim that the examination of the jurors on the part of appellant
revealed inefficiency on the part of his counsel. True, one of the jurors finally sworn to try the
case said, during the course of his examination, that he thought the appellant should be
punished in some manner, and was not challenged by counsel. The juror had previously
stated that he had no opinion as to the guilt or innocence of the accused. The juror had never
served in a criminal case before, and we think his entire examination discloses that he had
neither formed nor expressed an unqualified opinion that the accused was guilty of the
offense charged, and that he would be guided solely by the evidence and the law as given him
by the court. The examination of the other jurors finally sworn to try the case shows that none
of them had an opinion as to the guilt or innocence of the accused. It further shows they were
not prejudiced against him in any way, and were fair and impartial jurors. Those who on their
voir dire stated that they had opinion were promptly challenged by appellant's counsel and
excused by the court. Two were peremptorily challenged by him.
Appellant's counsel asked two of the jurors on their voir dire if they had heard or read
anything in the papers regarding the case that would give them the opinion that the judge of
the court had expressed an opinion as to the guilt or innocence of the accused. When the
question was asked of the second juror the judge interposed and prevented counsel from
continuing this line of interrogation, and stated that he had expressed no opinion. Counsel
said: This is only asked in all fairness; I don't for a moment think that your honor has
expressed an opinion. It is claimed that counsel's conduct in this respect, evoking a
reprimand from the court, had a tendency to prejudice appellant's case. We fail to see how it
could have had any such tendency, or how counsel's examination in this regard can be said to
show incompetency.
6. The argument of appellant's counsel on this appeal to the effect that the failure of his
counsel in the court below to object to many questions asked by the district attorney
which it is claimed elicited testimony of a prejudicial nature, and evidence of a similar
nature introduced in defense, indicated incompetency, takes a very wide range.
49 Nev. 217, 234 (1926) State v. Jukich
to the effect that the failure of his counsel in the court below to object to many questions
asked by the district attorney which it is claimed elicited testimony of a prejudicial nature,
and evidence of a similar nature introduced in defense, indicated incompetency, takes a very
wide range. We do not propose to follow it and discuss in detail the various questions and
responses thereto stressed by counsel. We have examined the entire record in this regard, and
do not find anything worthy of serious consideration as sustaining the claim of neglect and
incompetency. An attorney's ability cannot be measured by the number of objections he
makes. Attorneys of little ability are sometimes prolific in this respect. There is immaterial
evidence in the record, but there are few records in criminal cases that are free from this
objection. It would probably not have been admitted in the presence of proper objections. We
cannot know counsel's reasons for not objecting to some of the questions complained of, but
we are not prepared at this distance from the atmosphere of the trial to charge him with
neglect or incompetency for not doing so. As said in Commonwealth v. Dascalakis, supra:
Doubtless evidence was admitted in the examination of witnesses by the counsel for the
defendant which could not have been introduced against his objection. That by itself alone is
a matter of slight consequence. It is a not infrequent occurrence in the trial of causes, and
even happens in criminal cases, that incompetent, immaterial and irrelevant evidence goes in
without objection. Various motives may induce such conduct by trial counsel. In the main it
is done for the supposed advantage of the client to obtain evidence which directly or
indirectly may operate in his behalf. Disappointment in the substance of the evidence thus
elicited, or misapprehension in its expected effect, is neither error in law nor incompetence or
negligence in fact. It is difficult to reproduce on a printed page the atmosphere of a trial. The
situation confronting an attorney during the examination of a witness, including information
conveyed in advance from various sources, anticipation concerning answers to be given,
and judgment as to results likely to follow, is generally fraught with difficulty.
49 Nev. 217, 235 (1926) State v. Jukich
concerning answers to be given, and judgment as to results likely to follow, is generally
fraught with difficulty. Methods differ. There are divergent theories as to the wisdom of
insistent conformity to every technical rule of evidence. Even tenable objections sometimes
are not taken in the belief that an ultimate favorable verdict is more likely without them. * * *
Experience, capacity, industry, alertness, faithfulness, learning, and character make great
differences in the efficiency of different members of the bar in the trial of cases. Perfection
cannot be demanded even if a standard of perfection could be formulated. All cannot be held
to the same degree of excellence. Criticism after an adverse event is easy.
7, 8. The fact that counsel did not question Katie Madek to ascertain whether she was
competent as a witness or not on account of her age is charged as a dereliction of duty on his
part. We do not so consider it. The witness was 9 years of age, but if she was capable of
receiving just impressions of the facts concerning which she testified and of relating them
truly, she was competent under our statute. That she was competent in these respects seems to
be indicated by the testimony of the three adult eyewitnesses to the tragedy, who received
similar impressions and related them in a similar manner. If counsel was satisfied from his
observations of the witness that she was competent, no duty rested upon him to object to her
testifying, or to undertake an examination to test her competency. Moreover, the duty of
ascertaining the capacity of a witness of tender years to testify rests primarily with the court,
and if the court in this instance was satisfied from the age of the witness, her appearance on
the stand and manner of testifying, that she was competent, a special examination for this
purpose was unnecessary. We must presume that the court was convinced that the witness
was competent.
9, 10. The testimony of the appellant elicited by the questioning of his counsel as to the
marriage agreement, the amount of money he had spent on the girl and her refusal to marry
him certainly cannot be said to have helped his case, as its tendency was to disclose a
motive for the deed.
49 Nev. 217, 236 (1926) State v. Jukich
refusal to marry him certainly cannot be said to have helped his case, as its tendency was to
disclose a motive for the deed. But as the state had already introduced in evidence his
statements to the officers to the same effect, which were not denied by him, it is difficult to
see how his relation of these matters to the jury could have prejudiced his case. It is urged that
his defense of extreme drunkenness and lack of intent in consequence thereof was a wrong
theory; that some other defense was a proper one. But there is no showing that appellant had
any other defense. Cases of murder without any real defense are not uncommon. If appellant
had no other defense, should his counsel be charged for the failure of the only one available
to him? Certainly not. Moreover, defending on a wrong theory is not evidence of
incompetency. Sayre v. Commonwealth, supra. If appellant had any true defense it was his
duty to disclose it to his counsel, and if the latter was unwilling to present it, to appeal to the
court to assign him counsel who would. He cannot wait until after his conviction and expect
to have another trial on another theory of defense by shifting the blame for the one which
failed upon his counsel. Sayre v. Commonwealth, supra. While counsel for appellant may not
have been as skillful in the examination of witnesses and in the presentation of his defense as
some other attorney may have been, it does not appear from a careful examination of the
entire record that his management resulted in an unfair trial. There is nothing in the record to
indicate that the jury was obtained, or the trial concluded, with undue haste.
11. As previously stated, it appears from the record that no objections were taken on the
trial of the case to questions which elicited evidence now claimed to have been improper and
prejudicial. The question of the admissibility of such evidence is therefore not before us on
this appeal. This court has so held in a number of cases, civil as well as criminal. Sharon v.
Minnock, 6 Nev. 377; State v. Jones, 7 Nev. 408; State v. Murphy, 9 Nev. 394
49 Nev. 217, 237 (1926) State v. Jukich
9 Nev. 394; State v. C.V.M. Co., 13 Nev. 194; State v. Lawrence, 28 Nev. 440, 82 P. 614;
Karns v. State Bank & T. Co., 31 Nev. 170, 101 P. 564; State v. Williams, 31 Nev. 360, 102
P. 974; State v. Mangana, 33 Nev. 511, 112 P. 693; State v. Clarke (Nev.) 228 P. 582.
Stress is placed upon the fact that it is a capital case. The rule we have stated of not
considering objections to the admissibility of evidence made for the first time on appeal has
been uniformly adhered to in capital cases by this court. State v. Murphy, supra; State v.
Williams, supra; State v. Mangana, supra. It is a necessary rule of procedure. Not only would
it be unfair to the trial court to reverse for errors not called to its attention by a proper
objection, but it would also deprive the opposite party of an opportunity to obviate the
objection. Sharon v. Minnock, supra. We see no reason for a departure from the rule in this
case.
12. Objection is taken to instruction No. 5 given to the jury. The instruction reads:
There are certain kinds of murder which carry with them evidence of premeditation and
deliberation. These the legislature has enumerated in the statute, and has taken upon itself the
responsibility of saying that they shall be deemed and held to be murder in the first degree.
These cases are of two classes: First, where the killing is perpetrated by means of poison, or
lying in wait, or torture, or any other kind of willful, deliberate and premeditated killing, and
here the means used is held to be evidence of premeditation and deliberation.
It is urged that the words, and here the means used is held to be evidence of
premeditation and deliberation, could have been susceptible of but one meaning to the jurors
which was that the court was referring to the case on trial, and meant to tell them that the
pistol used by appellant was evidence of premeditation and deliberation. We do not think that
it was misleading in this respect. The court was not talking about the evidence in the case but
was attempting to classify certain kinds of murder of the first degree, and the word here
was used to refer to the class stated.
49 Nev. 217, 238 (1926) State v. Jukich
used to refer to the class stated. The classification, however, is not clearly drawn, for two
different classes of murder of the first degree are really stated as one. But this ambiguity,
occurring as it does in an abstract instruction, could not have been harmful, even if appellant's
contention of its meaning to the jury were conceded. The means used in this case did tend to
show deliberation and premeditation, but the jury was correctly instructed, in another
instruction directly referring to the case, that deliberation and premeditation must be proven
beyond all reasonable doubt before the defendant could be convicted of murder in the first
degree. In regard to the evidence of drunkenness the court instructed as follows:
Instruction No. 29. You are instructed that in order to find the defendant guilty of murder
in the first degree, you must find from the evidence, beyond all reasonable doubt, that the
murder was perpetrated by willful, deliberate and premeditated killing. This ingredient of
deliberate premeditated killing must be clearly shown and proven beyond all reasonable
doubt. It is not sufficient that you think that the killing was deliberate and premeditated, the
evidence must convince you of that fact to an abiding certainty and beyond all reasonable
doubt. The evidence of deliberation and premeditation must be such as to convince you that
the deliberate premeditated design and purpose to murder was knowingly and intentionally
formed and considered in the mind of the defendant and meditated upon before the fatal shot
was fired; and, in considering whether such a design was formed in the mind of the
defendant, you should consider the evidence, if any, of drunkenness. If the defendant was
drunk at the time, and was too much intoxicated to form such a deliberate and premeditated
purpose, he cannot be found guilty of murder in the first degree. It is true that drunkenness is
no excuse for the commission of an offense, but nevertheless the jury must consider the
evidence of drunkenness and determine whether it was sufficient to so cloud the mind of the
defendant as to interfere with the formation of deliberate and premeditated purpose to
kill.
49 Nev. 217, 239 (1926) State v. Jukich
defendant as to interfere with the formation of deliberate and premeditated purpose to kill. If
the drunkenness was sufficient to create a reasonable doubt in your minds as to the existence
of such a deliberate premeditated purpose, you cannot find the defendant guilty of murder in
the first degree.
Instruction No. 30. You are instructed that it is a well settled rule of law that drunkenness
is no excuse for the commission of a crime. Temporary insanity, produced by intoxication,
does not destroy responsibility, when the party, when sane and responsible made himself
voluntarily intoxicated; and drunkenness forms no defense whatever to the fact of guilt, for,
when a crime, committed by a party while in a fit of intoxication, the law will not allow him
to avail himself of his own gross vice, and misconduct to shelter himself from the legal
consequences of such crimes, evidence of drunkenness can only be considered by the jury for
the purpose of determining the degree of the crime, and for this purpose, must be received
with great caution, you should discriminate between the conditions of mind merely excited by
intoxicating drink yet capable of forming a specific and deliberate intent to take life, and such
a prostration of the faculties as renders a man incapable of forming intent or of deliberation or
premeditation. If an intoxicated person has the capacity to form the intent to take life, and
conceives and executes such intent, it is no ground for reducing the degree of his crime that
he was intoxicated to conceive it, or to conceive it more suddenly by reason of his
intoxication.
13. Exception is taken to instruction No. 30, wherein the court said that evidence of
drunkenness must be received with great caution. The two instructions together correctly
state the law on this phase of the case. In the case of State v. Johnny, 29 Nev. 203, 87 P. 3,
practically the same instructions were given and approved by this court, in which the jury was
twice told that evidence of drunkenness should be received with great caution. See, also, State
v. Thompson, 12 Nev. 140, in which an instruction was approved which stated that:
"Evidence of drunkenness can only be considered by the jury for the purpose of
determining the degree of the crime, and for this purpose it must be received with
caution."
14. It is a general rule that in cases of homicide evidence of drunkenness should be
received with caution.
49 Nev. 217, 240 (1926) State v. Jukich
Nev. 140, in which an instruction was approved which stated that:
Evidence of drunkenness can only be considered by the jury for the purpose of
determining the degree of the crime, and for this purpose it must be received with caution.
14. It is a general rule that in cases of homicide evidence of drunkenness should be
received with caution. 29 C.J. p. 1061; State v. Hawkins, 23 Wash, 289, 63 P. 258; People v.
Vincent, 95 Cal. 425, 30 P. 581; People v. Calton, 5 Utah, 451, 16 P. 902; U.S. v. Meagher
(C.C.) 37 F. 875.
15. When evidence is of such character that its weight may be easily misjudged it is proper
for the court to advise that it should be received with great caution. State v. Streeter, 20 Nev.
403, 22 P. 758. This does not mean that it is not entitled to credit even if believed, but merely
that it should be weighed with care.
Counsel for appellant in the court below filed an opening brief, in which he assigned
certain errors, which we have considered and find to be without merit. Counsel who have
displaced him on this appeal concede that his contentions are untenable.
As there is no prejudicial error in the record, the judgment and order appealed from are
affirmed, and the district court is directed to make the proper order for the carrying into effect
by the warden of the state prison the judgment rendered.
On Petition for Rehearing
April 7, 1926.
Per Curiam:
Rehearing denied.
____________
49 Nev. 241, 241 (1926) State v. Randolph
STATE v. RANDOLPH
No. 2719
January 22, 1926. 242 P. 697.
1. HomicideEvidence Held to Show Willful, Deliberate, and Premeditated Design to Kill.
Evidence held to show a willful, deliberate, and premeditated design to kill, warranting conviction of
first degree murder under Stats. 1919, c. 248.
2. HomicideInstruction Distinguishing First and Second Degree Murder Held Not
Erroneous.
Instruction as to distinction between first and second degree murder held not erroneous.
3. HomicideRule of Ejusdem Generis Held Not Applicable under Statute Enumerating
Acts Constituting First Degree Murder.
That Stats. 1919, c. 248, provides that all murders perpetrated by means of poison, lying in wait,
torture, or any other kind of willful, deliberate, and premeditated killing, shall constitute first degree
murder, does not require application of doctrine of ejusdem generis so as to render applicable only to acts
of same general nature or class as those enumerated.
4. HomicideNew Trial for Newly Discovered Cumulative Evidence Properly Refused.
New trial for newly discovered evidence as to defendant's mental condition before assault on
deceased held properly refused, where last person to see defendant before assault testified as to his
condition.
See 29 C.J. sec. 79, p. 1105, n. 41; 30 C.J. sec. 538, p. 294, n. 95; sec. 641, p. 396, n. 23; sec. 687, p. 435, n. 22.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
John H. Randolph was convicted of murder in the first degree, and he appeals. Affirmed
with direction. Rehearing denied. (Sanders, J., dissenting.)
A. Grant Miller, for Appellant:
Express malice was not proved. If malice can be implied, killing is murder; if not,
manslaughter. When homicide is proved, presumption is that it is in second degree. If state
would elevate it to first degree it must show characteristics of that degree; if defendant would
reduce it to manslaughter, burden is on him. State v. Melvern, 72 P. 489.
49 Nev. 241, 242 (1926) State v. Randolph
Malice aforethought and premeditation have often been confused. Intention may be
instantaneous as successive thoughts of mind, but premeditation implies reflection for some
appreciable time, else how does it differ from sudden heat of passion, which is characteristic
of manslaughter? Malice may be presumed, intention may be inferred, but deliberate design
must be proved. Cases holding malice and premeditation may be presumed from class of
weapons used are not applicable here. Henning v. State, 55 Am. Rep. 756; 13 R.C.L. 742.
Murder in second degree has all elements of murder in first degree except deliberation.
State v. Darling, 97 S.W. 592.
To constitute first degree, killing must be deliberate and premeditated. State v. Hunt, 47
S.E. 49.
Long period of habitual intoxication or narcotic stupefication may extenuate. Instant
condition to such degree that nonresponsibility can be predicated will preclude any
presumption of premeditated design. It was error to deny application for new trial on ground
of newly discovered evidence showing such condition. People v. Gerdvine, 104 N.E. 129;
Cooke v. State, 35 S. 665; Rev. Laws, 6282; Roberts v. People, 19 Mich. 423.
There is grave doubt as to exact cause of death. Most likely cause is blood clot on brain
caused by fall to floor, not blow of fist.
M. A. Diskin, Attorney-General; L.D. Summerfield, District Attorney, and H.L. Heward,
Assistant District Attorney, for state:
Express malice was clearly proved. Defendant said, I will kill you. I will kill you, while
beating his prostrate mother.
In this state, premeditation and deliberation do not have separate meanings, but are
synonymous. State v. Lopez, 15 Nev. 407. They may be inferred from circumstances of crime
where facts show, as matter of logic, deliberate intent. Decision on question is peculiarly
within province of jury. 1 Wharton Criminal Law {11th ed.), sec.
49 Nev. 241, 243 (1926) State v. Randolph
within province of jury. 1 Wharton Criminal Law (11th ed.), sec. 507; 30 C.J. 142; 13
R.C.L. 768; State v. Millian, 3 Nev. 409.
Any other kind of willful, deliberate and premeditated killing is totally separate
classification from all murder which shall be perpetrated by means of poison, etc., and
principle of ejusdem generis does not apply. 29 C.J. 1105; People v. Vinunzo, 180 N.W. 502.
Applications for new trials on ground of newly discovered evidence are viewed with
suspicion. Such applications are not granted as matter of right, but lie in sound discretion of
court. Such evidence must in fact be new, not merely cumulative or impeaching. Due
diligence must be shown. State v. Wilberg, 45 Nev. 192; Stats. 1917, 423; 16 C.J. 1182.
To render slayer guiltless of higher degree, intoxication must have made him utterly
incapable of forming intent. If person has any intent or does any premeditating, he is guilty of
higher degree. Case of People v. Leonardi, 38 N.E. 372, holding there need not be entire lack
of intent represents minority view. How can there be a fractional part of intent? Condition of
mind merely excited by intoxicating drink yet capable of forming specific intent is
distinguished from such prostration of faculties as renders forming of intent impossible. State
v. Johnny, 29 Nev. 203; 16 C.J. 108; 29 C.J. 1060.
Insanity in this state is affirmative defense to be proved by defendant by preponderance of
evidence. State v. Lewis, 20 Nev. 333. Burden of proving mitigation is on defendant. Rev.
Laws, 6399.
OPINION
By the Court, Coleman, C. J.:
John H. Randolph was convicted of murder in the first degree. A motion for a new trial
having been denied, he has appealed from the sentence inflicting the death penalty and from
the order denying his motion for a new trial.
Three points have been made to support the contention that the judgment and order
should be reversed, viz.:
49 Nev. 241, 244 (1926) State v. Randolph
that the judgment and order should be reversed, viz.: First, that the trial court erred in
instructing the jury as to the distinction between first and second degree murder; second, that
the verdict is contrary to the evidence; and third, that a new trial should have been granted
because of newly discovered evidence.
The evidence shows that the defendant is a man about 45 years of age; that he had long
been addicted to the use of drugs, and on two or three occasions had been committed for
treatment for the habit. It further appears from the testimony that on or about the night of June
30, 1925, he was residing with his mother in Reno, Nevada, and about 1:30 a.m. went home
in an intoxicated condition and was helped into the house by one Gaffney; that he found his
way into his mother's room where she was in bed; that he requested her to get up and make
him a cup of coffee, and was told that she was sick and could not do it. He then requested her
to get up and help him undress for bed, to which she replied that she was too sick, but she
finally started to get out of bed to help him, at a moment when he began to use vile language
toward her, whereupon she threw a glass of water in his face. He then assaulted her, knocking
her down. He then jumped on her and caught her by the throat and was in the act of choking
her, declaring, I will kill you; I will kill you, when roomers in the house came in and pulled
him off. His mother was a woman weighing about 350 pounds and was between 70 and 75
years of age. At the request of the mother, the police were called. When they arrived, he went
to his mother and asked her to tell them it was all a mistake. She replied, Not this time. She
was removed to a hospital, where she died three days later, the autopsy showing several
bruises about the head and body. It appears he had kicked her in the abdomen. The immediate
cause of death was the injuries received on the head.
The only evidence introduced in behalf of the defendant was that going to show his years
of dissipation and the effect thereof upon his physical and mental condition.
49 Nev. 241, 245 (1926) State v. Randolph
condition. There was no evidence to the effect that he was, or had ever been, insane.
1. We will first consider the second contention. Our statute defines murder to be the
unlawful killing of a human being, with malice aforethought, either express or implied. The
unlawful killing may be effected by any of the various means by which it may be occasioned.
Express malice is that deliberate intention unlawfully to take away the life of a fellow
creature which is manifested by external circumstances capable of proof. In 1919 the
legislature enacted:
Malice shall be implied when no considerable provocation appears, or when all the
circumstances of the killing show an abandoned and malignant heart. All murder which shall
be perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful,
deliberate and premeditated killing, or which shall be committed in the perpetration, or
attempt to perpetrate, any arson, rape, robbery, or burglary, or which shall be committed by a
convict in the state prison serving a sentence of life imprisonment, shall be deemed murder of
the first degree. 1919 Stats. p. 468.
Counsel for defendant concedes that malice might have been implied by the jury but
contends, as we understand him, that it must have been proven that the killing was willful,
deliberate, and premeditated before the jury could have been justified in bringing in a verdict
of murder of the first degree, and that there was no such proof. Just how counsel thinks
deliberation and premeditation should be proven is not made clear. One thing is evident,
however, and that is, if we accept his theory, proof of deliberation and premeditation could
never be made in a case depending entirely upon circumstantial evidence. But it does not
seem that it should be necessary to determine his contention, for it seems there is positive
evidence in this case of a willful, deliberate, and premeditated design to kill. Defendant
assaulted his mother, kicking her in the abdomen and knocking her down, got upon her, and
while in the act of choking her, said, I will kill you; I will kill you.
49 Nev. 241, 246 (1926) State v. Randolph
This utterance, we must presume, was the expression of his real design. His mother died three
days later as the result of his misconduct. To us it seems that no clearer case of willful,
deliberate, and premeditated design to kill can be conceived. It is true that the immediate
cause of death was the blows on the head, but the assault continued up to the moment the
defendant was pulled off of the deceased, and his utterances during the making of the assault
showed the state of mind of the defendant.
2. We will now take up the contention that the court erred in giving instruction No. 2,
which reads:
The court instructs the jury that, in dividing murder into two degrees, the legislature
intended to assign to the first, as deserving of greater punishment, all murders of a cruel and
aggravated character, and to the second all other kinds of murder, which are murder at
common law, and to establish a test by which the degree of every case of murder may be
readily ascertained. That test may be thus stated: Is the killing willful (that is to say,
intentional), deliberate, and premeditated? If it is, the case falls within the first, and, if not,
within the second, degree. There are certain kinds of murder in which the legislature makes
the malice which is implied from the circumstances of the killing, whether voluntary or not,
to stand in the place of that express malicethe deliberate intention unlawfully to take away
the life of a fellow creaturewhich is, in all other cases, essential to the crime of murder in
the first degree; these the legislature has enumerated in the statute, and has taken upon itself
the responsibility of saying that they shall be deemed and held to be murder of the first
degree. These cases are of two classes: First, where the killing is perpetrated by means of
poison, etc.; the second is where the killing is done in the perpetration, or attempt to
perpetrate, some one of the enumerated felonies. Where the case comes within either of these
classes, the test question, Is the killing willful, deliberate, and premeditated?' is answered by
the statute itself, and the jury have no option but to find the prisoner guilty in the first
degree.
49 Nev. 241, 247 (1926) State v. Randolph
guilty in the first degree. Hence, so far as these two cases are concerned, all difficulty as to
the question of degree is removed by the statute. But there is another and much larger class of
cases included in the definition of murder in the first degree, which are of equal cruelty and
aggravation with those enumerated, and which, owing to the different and countless forms
which murder assumes, it is impossible to describe in the statute. In this class the legislature
leaves the jury to determine, from all the evidence before them, the degree of the crime, but
prescribes for the government of their deliberation the same tests which have been used by
itself in determining the degree of the other two classes, to wit, the deliberate and
preconceived intent to kill. It is only in the latter class of cases that any difficulty is
experienced in drawing the distinction between murder of the first and murder of the second
degree, and this difficulty is more apparent than real. The unlawful killing must be
accompanied with a deliberate and clear intent to take life in order to constitute murder of the
first degree. The intent to kill must be the result of deliberate premeditation. It must be
formed upon a preexisting reflection, and not upon a sudden heat of passion sufficient to
preclude the idea of deliberation. There need be no appreciable space of time between the
intention to kill and the act of killing; they may be as instantaneous as successive thoughts of
the mind. It is only necessary that the act of killing be preceded by a concurrence of will,
deliberation, and premeditation on the part of the slayer; and, if such is the case, the killing is
murder in the first degree, no matter how rapidly these acts of the mind may succeed each
other, or how quickly they may be followed by the act of killing.
3. In the case of State v. Harris, 12 Nev. 414, a very similar instruction was given, and,
though a portion of it was criticized, it was not held erroneous. The instruction in the instant
case was drawn to meet the criticism in the Harris Case. The instruction was again assailed in
State v. Hymer, 15 Nev. 49, and in State v. Gee Jon, 46 Nev. 41S
49 Nev. 241, 248 (1926) State v. Randolph
46 Nev. 418, 211 P. 676, 217 P. 587, 30 A.L.R. 1443, in each of which it was held that the
instruction was not prejudicial. It is settled in this state that such an instruction is not
erroneous, and we decline to consider the matter further. In this connection we may state that,
though it does not seem to be made as a real ground for reversal of the judgment, something
is said to the effect that, under the rule of ejusdem generis, the portion of the statute which
provides, All murder which shall be perpetrated by means of poison, or lying in wait, torture,
or by any other kind of willful, deliberate, and premeditated killing, is limited to murder
committed by means of poison, lying in wait, or torture. Such is not the law. The correct rule
is stated in 29 C.J. 1105, as follows:
The fact that the statute provides that all murders which shall be perpetrated by means of
poison or lying in wait or any other kind of willful, deliberate, and premeditated killing shall
constitute murder of the first degree does not require the application of the doctrine of
ejusdem generis so that it shall be construed as applicable only to acts of the same general
nature or class as those enumerated.
See, also, People v. Vinunzo, 212 Mich. 472, 180 N.W. 502; People v. Bealoba, 17 Cal.
389; Com. v. Jones, 1 Leigh (28 Va.), 598.
4. Did the court err in refusing to grant a new trial upon the ground of newly discovered
evidence? We think not. The evidence sought to be introduced goes simply to the mental
condition of the defendant some time prior to the assault, ranging from two hours and a half
to a few minutes. At most this evidence could be only cumulative, since the witness Gaffney
was the last person to see the defendant prior to the making of the assault and he testified to
the condition of the defendant when he helped him into the house. The ruling of the trial court
was right.
No error appearing, it is ordered that the judgment and order appealed from be affirmed,
and that the district court make the proper order for carrying into execution by the warden of
the state prison the judgment rendered.
49 Nev. 241, 249 (1926) State v. Randolph
execution by the warden of the state prison the judgment rendered.
Ducker, J.: I concur.
Sanders, J., dissenting:
This homicide was unusual, because of the relations of the parties and the character of the
deed. It was matricide; i.e., the murder of a mother. The defendant did not deny the killing,
but interposed and sought to establish the defense of toxic insanity, brought about by the long
continued use of morphine and alcoholic stimulants, combined with a chronic case of
syphilis.
The jury having found the defendant mentally responsible for his act, the only question for
their determination was the degree of the crime; yet I observe from this record that, when the
jury retired to consider the case, they were given 27 instructions and 7 forms of verdicts; why,
I do not understand. A more ragged record in a capital case has never reached this court.
Bare proof of an unlawful killing does, it is true, establish prima facie a case of murder,
but only murder in the second degree. If the state demands a verdict of murder of the first
degree, the burden is upon it to prove beyond a reasonable doubt some facts or circumstances
from which it may be rationally inferred that there was on the part of the defendant a
deliberate purpose to take the life of the deceased. The question of the degree of the crime is
exclusively for the jury, and their determination will not be disturbed when there is any
evidence to support it. I shall therefore, confine myself to a discussion of the single question
of the sufficiency of the evidence to establish murder of the first degree.
In a case of homicide, the relations existing between the parties are worthy of much
consideration. Undoubtedly where the party slain is a parent (particularly a mother), or some
near friend or relative, and no particular cause for the act is assigned, it raises a fair
presumption that it was due to insane impulse or misadventure. Dean's Medical
Jurisprudence, 577; Wharton's Crim. Law (11th ed.), sec. 158. The mere motiveless
destruction of life can with difficulty be regarded as the act of a sane mind."
49 Nev. 241, 250 (1926) State v. Randolph
motiveless destruction of life can with difficulty be regarded as the act of a sane mind. We
look in vain for a motive on the part of this defendant to take the life of his mother. The jury,
in finding the defendant guilty of murder in the first degree, obviously ignored the relations of
the parties, and apparently were not influenced by the fair presumption that his act was the
result of an insane impulse, but, on the contrary, must have inferred from his violence, taken
in connection with his exclamation, I will kill you; I will kill you, that he designed to effect
the death of his mother. Such I concede might be the natural inference in the absence of
surrounding circumstances repelling the idea.
The relations between the parties were such that they occupied the same room in the
lodging or rooming house owned and conducted by the deceased in Reno, Nevada. The
defendant was unfit for any employment, and was supported by his mother. The evidence
tends to show that he was a physical wreck. We know nothing of their mode of living, but the
inference is that the defendant was, in fact, a man child. He came home in the early morning
hours of June 30, 1925, in such an intoxicated condition that he had to be assisted into the
house and to his room, where he was left on a couch. His mother refused to get up and make
him a cup of coffee and to undress him for bed, and, because of his abusive epithets, threw a
glass of water upon him; she then started to call for help. The defendant in a temper struck
her a blow on the head with his fist that knocked her to the floor. He then beat and kicked her.
Neighboring roomers hearing a noise emanating from the room entered and found the
defendant with his knees upon his mother's stomach and his hands to her throat, exclaiming,
I will kill you; I will kill you. The mother died on the 2d of July, 1925.
Assuming this account as given by the deceased to a third party of the assault made upon
her by the defendant was true, and that it was properly admitted in evidence, a question upon
which I express no opinion, the inference is irresistible that the killing was the result of an
insane impulse or of the unusual and unnatural excitement under which the defendant
labored.
49 Nev. 241, 251 (1926) State v. Randolph
inference is irresistible that the killing was the result of an insane impulse or of the unusual
and unnatural excitement under which the defendant labored. The defendant used no weapon;
all he did to the deceased was with his fists and feet. Undoubtedly the act was cruel and
malignant, but, in my opinion, there is absolutely no evidence from which it can rationally be
inferred that there was any deliberate intention on the part of the defendant to take the life of
his mother. The testimony of the autopsy surgeon shows that death was caused from a
hemorrhage on the brain produced by some blunt force which caused a shaking of the brain,
enough to tear one of the blood vessels. There was no fracture of the skull and no marks on
the head. There were, however, a number of blue spots on the body, and both lids of the left
eye were discolored.
It is argued that the blow with the fist followed by beating and kicking, taken in
connection with the exclamation, I will kill you; I will kill you, warranted the jury in
finding the existence of deliberation. I am of opinion that under the circumstances this
exclamation, instead of being indicative of deliberation, accentuates the fact that the
defendant was laboring under a frenzy produced by anger.
I concede that uncontrollable or irresistible impulse, beginning on the eve of the
criminal act and ending with its consummation, has no legal standing as a defense to crime;
but it should be remembered that, while irresistible impulse, the mind being sane, is no
defense to crime, yet violent passion is to be taken into account as a mitigating element, since
the law treats assaults committed in hot blood as of a lower grade than those committed
deliberately. Wharton & Stille's Med. Jur. (5th ed.), vol. 1, sec. 194. Evidence of
circumstances of provocation, as tending to arouse passion, is admissible in mitigation of the
crime under certain conditions as to disprove premeditation. This is especially so where it is
not certain whether accused designed to effect the death of deceased and his act was not one
likely to cause death.
49 Nev. 241, 252 (1926) State v. Randolph
likely to cause death. 30 Corpus Juris, 224, sec. 456. I concede that there was no provocation
in this case sufficient to excite a rational or sane person to do an unlawful act; but, however
trivial the provocation may have been, the defendant in a frenzy of anger made a cruel and
malignant assault upon his mother, whom it was his duty to shield and protect. Every fact and
circumstance attending the killing, in my opinion, refutes the state's position that the law may
infer deliberation from the peculiar cruelty of the deed, and takes this case without the rule
established by those extreme cases cited by Wharton in support of the text that the killing
under circumstances of great atrocity warrants an inference of malice, premeditation, and
deliberation. Wharton on Homicide (3d ed.), sec. 151. Under a statute which divides murder
into two degrees I have been unable to find a case like the present where the accused was
convicted of murder in the first degree.
There is another view which may, and I think should, be taken of this case. The
defendant's life from childhood was before the jury. I shall not review it. Suffice to say that
from youth on the defendant wandered through life in both moral and intellectual darkness,
making his own path. For twenty years prior to the homicide he was a confirmed morphine
fiend. He had been twice committed to the Nevada State Hospital for Mental Diseases for
having narcotic drugs in his possession, once in 1922 and once in 1924. It is conceded that for
three for four years prior to the homicide he was an habitual user of intoxicating liquors,
ostensibly of bootleg manufacture, commonly conceded to be a predisposing cause of toxic
insanity. For the past ten years the defendant had been treated intermittently for syphilis. It is
true the state, in rebuttal, produced evidence tending to show that the defendant at the time of
the homicide was mentally responsible for his act, but the fact that he was so responsible did
not make the killing murder of the first degree. Morphine, alcohol, and syphilis have much to
do with the genisis of all forms of mental disease.
49 Nev. 241, 253 (1926) State v. Randolph
forms of mental disease. True, the mere use of morphine or alcohol is no excuse for crime,
but it must be conceded that the long-continued use thereof produces serious disturbances of
the central nervous system. Mental derangement is a common effect of the long-continued
use of these poisons, and crime is its unfortunate accompaniment. See discussion of toxic
insanities in A System of Legal Medicine (Hamilton and Others), vol. 2, 205.
If it be conceded that one afflicted as the defendant was never loses the power to
distinguish between right and wrong, and is at all times master of himself and may control his
actions, still his mind may be enfeebled, and the power of his will weakened, so that he will
readily yield to the influence of the least and most trivial provocation without that willful,
deliberate, and premeditated malice which is essential to constitute murder in the first degree.
Anderson v. State, 43 Conn. 526, 21 Am. Rep. 669. Conceding that this defendant could
distinguish between right and wrong, still the best evidence that his mind was enfeebled and
his will weakened by disease is that, without any sufficient provocation, justification, or
excuse, he committed an act of violence upon his mother which resulted in her death. If there
is no mental disease, one who commits a homicide in a frenzy produced by anger, although
he may be unable to control himself, is fully responsible for the homicide. 29 Corpus Juris,
secs. 16, 1056. But, in a case like the present, where the accused is shown to be afflicted with
disease which leads to a degeneration of the entire nervous system and to mental imbecility,
the jury, in fixing the degree of the crime, should make allowance for his enfeebled mind and
weakened will.
Upon a careful consideration of all the evidence, I am of opinion that it did not warrant the
jury in finding the existence of the deliberation and premeditation necessary to constitute the
highest degree of felonious homicide. I therefore register my dissent from the order directing
the court below to make the proper order for carrying into effect the judgment sentencing
the defendant to the lethal chamber.
49 Nev. 241, 254 (1926) State v. Randolph
for carrying into effect the judgment sentencing the defendant to the lethal chamber.
On Petition for Rehearing
March 2, 1926.
Per Curiam:
Rehearing denied. (Sanders, J., dissenting.)
____________
49 Nev. 254, 254 (1926) Sweet v. Sweet
SWEET v. SWEET
No. 2695
March 10, 1926. 243 P. 817.
1. Divorce.
Where husband is forced to leave wife on account of her cruelty, she is chargeable with desertion
within meaning of divorce statutes.
2. Appeal and ErrorOn Appeal from Judgment, Court Can Determine whether There Is
Any Evidence to Support It.
On appeal from judgment, sufficiency of evidence cannot be considered, in view of Rev. Laws, 5328,
but court can determine whether there is any evidence to support judgment.
3. DivorceAdverse Decree in Suit for Divorce for Cruelty, in which Desertion Was Not
Pleaded, Held No Bar to Suit for Desertion.
Adverse decree in suit for divorce for cruelty, in which desertion was not pleaded, held no bar to later
suit for desertion, where it appeared that cause of action for desertion had not ripened when prior action
was commenced, since it is only where complainant fails to plead existing cause for divorce of which he
has knowledge that decree denying it will bar subsequent suit.
4. Judgment.
One pleading former judgment as bar to present action must assume burden of proving subject matter
of two suits identical, unless such fact appears from record.
See (1, 3) 19 C.J. secs. 116-117, p. 61, n. 92, 99; sec. 439, p. 178, n. 96 (new); (2) 4 C.J. sec. 2558, p. 666, n.
17; (4) 34 C.J. sec. 1225, p. 802, n. 6; sec. 1338, p. 935, n. 30; sec. 1509, p. 1067, n. 79.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by William N. Sweet against Grace A. Sweet. Judgment for plaintiff, and defendant
appeals. Affirmed.
49 Nev. 254, 255 (1926) Sweet v. Sweet
Ayers & Gardiner, for Appellant:
In suit between same parties on same cause judgment is conclusive of all issues presented
and every other matter within issues, whether considered or not. 15 R.C.L. 962-964.
This suit upon constructive desertion is not different from Connecticut suit upon cruelty.
Constructive desertion is really legal fiction. It arose in state where cruelty is ground for
separation, desertion for absolute divorce, and has no place here, where both causes are
grounds for absolute divorce. To constitute constructive desertion, conduct must be of such
gravity as to be ground for divorce. 19 C.J. 61, n. 98; Van Dyke v. Van Dyke, 19 A. 1061;
Vickers v. Vickers, 45 Nev. 274.
Full year's desertion must be shown. Time action is pending is not counted. Hurning v.
Hurning, 83 N.W. 343; Gruner v. Gruner, 165 S.W. 865.
Refusal of sexual intercourse is not desertion but merely one element if it causes mental
anguish and impairs health. Black v. Black, 47 Nev. 346; Kelly v. Kelly, 18 Nev. 49.
It is not necessary to appeal from order denying new trial. We do not ask new trial. Only
requirement is that motion be made and determined. Rev. Laws, 5328; Gill v. Mng. Co., 43
Nev. 1. It would be strange requirement if litigant desiring only to reverse judgment and does
not want new trial could get relief only by appealing from order denying motion for new trial.
Our motion for new trial was not based on Rev. Laws, 5322, subdivision 7, but on Rev.
Laws, 5320, subdivision 6insufficiency of evidence and that judgment is against law. As
matter of fact, a brief argument was made, though common practice is not to make argument
if to do so seems useless.
Of what use is statutory right to bill of exceptions upon appeal from judgment. (Stats.
1923, 163) if it cannot be used at all? We did not offer it to disclose errors, but to present
testimony to show its insufficiency and contrarity of judgment to law.
49 Nev. 254, 256 (1926) Sweet v. Sweet
Contradictory statements in various sworn complaints cannot be excused because of
change of counsel.
Opposed to Lister v. Lister, 111 Mass. 327, weight of authority is that misconduct causing
separation is sufficient, after lapse of sufficient time, to charge offending spouse with
desertion, where it constitutes ground for divorce. 19 C.J. 61; Van Dyke v. Van Dyke, supra.
Respondent's much cited case directly in point, Rand v. Rand, does indeed support his
contention, and is only case which does, but it is not mentioned in Shepherd's Citations,
Keezer, or Bishop, but is sporadic case entirely ignored by later decisions.
Platt & Sanford, for Respondent:
By stipulation appeal from order denying motion for new trial was dismissed. However,
so-called transcript on appeal, including testimony, was filed subject to be stricken.
Appellant's failure to file memorandum of errors prevents this court from considering
them. Rev. Laws, 5322.
Very purpose of motion for new trial, to give court opportunity to correct errors, is
nullified when movant submits mere pro forma motion without argument or attempt to
convince court. Such motions are always summarily overruled.
Connecticut judgment is not bar. This suit is based on desertion, not cruelty. Cause did not
and could not arise in Connecticut.
Black v. Black should be reversed, but nothing in it should preclude this court, in
accordance with very respectable authority from holding that denial of intercourse by wife in
good health, coupled with utter failure to perform household duties, which caused husband to
leave home, constitutes constructive desertion.
Justifiable desertion may be based upon cruelty which would not warrant divorce. Keezer,
Marriage and Divorce, 252; 9 R.C.L. 364.
Desertion may exist though both parties live under same roof.
49 Nev. 254, 257 (1926) Sweet v. Sweet
same roof. Baker v. Baker, 195 P. 347. Party who intends to end cohabitation commits
desertion regardless of who leaves home. Hudson v. Hudson, 51 S. 857.
Pendency of Connecticut proceedings did not interfere with running of statute. 9 R.C.L.
361; Easter v. Easter, 73 A. 30.
Former decree is not conclusive of matters not involved therein. Wulke v. Wulke, 183
N.W. 349.
Burbank v. Rivers, 20 Nev. 51, is conclusive that because appeal is from judgment only
this court has no jurisdiction to consider alleged errors, and it outlines procedure invariably
followed. It shows purpose of motion for new trial. Without appeal from order denying
motion for new trial, order becomes final. That appellant does not want new trial does not
justify him in departing from statutory method of taking appeal.
Effinger v. Effinger, 48 Nev. 208, settles question whether Burbank v. Rivers is sui
generis, holding when right of trial by jury is given in divorce actions verdict is conclusive as
in action at law and can be set aside only by granting new trial.
Findings support judgment. Judgment should be affirmed.
OPINION
By the Court, Sanders, J.:
1. This was an action for divorce brought by the husband upon the ground of wilfull
desertion based upon alleged acts and conduct of the defendant damaging to the plaintiff's
health, and which rendered cohabitation intolerable and unsafe. We shall not particularize the
charges made in the complaint against the defendant. Suffice it to say that, after a hearing
upon the pleadings and evidence, judgment was rendered in favor of the plaintiff because of
the defendant's constructive desertion; that is to say, the acts and conduct of the defendant
were such as to justify the plaintiff in leaving the home of the parties, and to confer upon
plaintiff the right to obtain a divorce, upon the well-recognized principle that, where the
husband or wife is forced to leave the other on account of his or her cruelty, the offending
spouse is chargeable with desertion within the meaning of the divorce statutes.
49 Nev. 254, 258 (1926) Sweet v. Sweet
the other on account of his or her cruelty, the offending spouse is chargeable with desertion
within the meaning of the divorce statutes. 9 R.C.L. sec. 149, p. 362.
The defendant moved for a new trial upon the ground of the insufficiency of the evidence
to justify the decision and that the decision was against law. The motion was overruled. The
defendant gave notice of appeal from the order overruling said motion for new trial, but did
not perfect her appeal. The case is here upon the defendant's appeal from the judgment.
2. The first question presented is one of practice. The bill of exceptions, duly certified and
made a part of the record, is a transcript of the proceedings in the court below. Relying upon
the provisions contained in section 386 of the practice act (section 5328, Revised Laws),
counsel for appellant insist that this court may upon an appeal from a judgment review the
evidence to determine whether it supports the judgment. Counsel for respondent object to our
reviewing the evidence for this or any purpose, and insist that, the appeal having been taken
from the judgment, we cannot pass upon the sufficiency of the evidence, and, unless the
invalidity of the judgment appears upon the face of the judgment roll, the judgment must be
affirmed. We agree with counsel for respondent to this extentthat we cannot consider the
sufficiency of the evidence, because the appeal is from the judgment, and not from the order
overruling the defendant's motion for a new trial. We are of opinion, however, that, upon
exceptions to a judgment, and upon appeal therefrom, we can examine the evidence to
determine the legal question whether there is any evidence to support the judgment.
3. Upon an examination of the evidence we conclude that there is but one question with
respect to the alleged invalidity of the judgment that is worthy of discussion. It appears from
the answer of the defendant that the marital domicile of the parties was in the state of
Connecticut; that the plaintiff brought a suit in that jurisdiction against the defendant for a
divorce, upon the ground of "intolerable cruelty."
49 Nev. 254, 259 (1926) Sweet v. Sweet
ground of intolerable cruelty. The suit was decided adversely to the plaintiff by the
Supreme Court of Connecticut, and was dismissed pursuant to its order. Sweet v. Sweet, 118
A. 36, 97 Conn. 693. The plaintiff then left Connecticut, and came to Reno, Washoe County,
Nevada. After residing there for the statutory period of six months, he commenced this action
for a divorce upon the ground of willful desertion based upon alleged cruelties of the
defendant of such nature as to compel the plaintiff to leave the defendant. The defendant
denied the allegations of the complaint, and for a defense set up in her answer the former
judgment as a bar or estoppel of the plaintiff's right to maintain this action for desertion.
The court's finding with respect to the issue of res judicata is as follows:
That the right of plaintiff to a decree of divorce from the defendant on the ground of
desertion cannot be barred by the Connecticut court action upon the ground that the cause of
action alleged in the second amended complaint herein had accrued under the laws of Nevada
prior to the commencement of the Connecticut action for intolerable cruelty'; the desertion
cause not having ripened under the Connecticut laws at the time of instituting the latter
proceeding.
The court's conclusion of law from this finding is as follows:
That said Connecticut judgment is not a plea in bar and defense to the complaint of the
plaintiff herein, or to the alleged cause of action for desertion set out in plaintiff's second
amended complaint herein, nor a final or other adjudication of said cause of action herein.
4. It is held in numerous cases that the party pleading a former judgment as a bar to the
present action must assume the burden of proving, if the fact does not appear from the record,
that the subject matter or cause of action in the former suit was identical with that now in suit.
23 Cyc. 1534.
It is obvious that there is no identity between a cause of action for a divorce for cruelty
and a cause of action for divorce for desertion.
49 Nev. 254, 260 (1926) Sweet v. Sweet
of action for a divorce for cruelty and a cause of action for divorce for desertion. They form
separate and distinct issues governed and controlled by different rules of evidence, and each
constitutes a separate and distinct statutory ground for divorce under the laws of both
Connecticut and Nevada. The fact that the plaintiff's former suit for intolerable cruelty was
dismissed for insufficiency of proof is no bar to the present action for desertion, even though
the defendant's acts and conduct were of such nature as to cause the separation.
It is only where several causes of divorce exist to the knowledge of the complainant and a
divorce is sought upon one ground only that a decree on the merits denying the petition is
held a bar to a subsequent petition based on another of such existing causes. 9 R.C.L. sec.
165, p. 375. And so, when the plaintiff's original action for intolerable cruelty was dismissed
for insufficiency of proof, the plaintiff could not maintain this action for desertion, if known
to him when the first suit was brought, without showing a sufficient reason for its
nonallegation in such suit. 9 R.C.L. sec. 165, p. 375. But it appears affirmatively from the
pleadings, supported by the findings in this case, that the plaintiff's action for desertion had
not ripened when the prior action was commenced. Consequently, the former judgment is no
bar to this action either upon the ground that the causes of action are identical or that the
causes of action existed and were known to the plaintiff when the original suit was brought.
We have examined the evidence to determine whether there is any legal evidence to
support the judgment, and, being of the opinion that there is, the judgment is affirmed.
____________
49 Nev. 261, 261 (1926) Nicora v. Cerveri
NICORA v. CERVERI
No. 2705
April 5, 1926. 244 P. 897.
1. AutomobilesEvidence Held to Support Finding of Negligence in Driving Automobile
Around Curve, Causing Injury to Passenger.
Where defendant's automobile approached curve at excessive speed, and, in rounding it, skidded and
struck guy wire six feet from road, injuring a guest passenger, evidence supported finding that defendant
was negligent, and that his negligence was proximate cause of the injuries.
2. Appeal and Error.
Credibility of witnesses is for the trial court.
3. Automobiles.
Invited automobile guest must exercise ordinary care for own safety.
4. Automobiles.
Ordinary care by guest in automobile depends on facts.
5. AutomobilesEvidence Held to Support Finding Guest in Automobile Skidding on Curve
was Free from Contributory Negligence.
Where a guest passenger, riding in rear seat of defendant's car, was injured when car, in rounding a
curve, skidded on to a guy wire near edge of road, evidence supported finding that passenger was free
from contributory negligence.
6. NegligenceNegligence of Automobile Driver Held Not Imputable to Passenger.
Where an invited passenger, riding in defendant's car, was injured on a pleasure trip, held that
defendant's negligence was not imputable to her on theory of joint enterprise, since she did not have equal
right to direct route and manner of going.
7. Damages.
Award of $3,600 to married woman for injured finger, causing permanent stiffness, and fractured
pelvis, causing shortening of leg and permanent lameness, held not excessive.
See (1, 3, 4, 5) 28 Cyc. p. 41, n. 46 (new); p. 47, n. 20; p. 48, n. 28; (2) 4 C.J. sec. 2833, p. 484, n. 36; (6) 29
Cyc. p. 543, n. 9; p. 549, n. 50; p. 550, n. 55; (7) 17 C.J. sec. 408, p. 1091, n. 85.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by Lazzaro Cerveri and Teresa Cerveri against A. Nicora. From a judgment for
plaintiffs, defendant appeals. Affirmed.
49 Nev. 261, 262 (1926) Nicora v. Cerveri
W. M. Kearney, for Appellant:
Where driver heeds request of guest to go fast, management of car is concurrent act of
driver and guest, they are engaged in joint enterprise, negligence of driver is imputed to guest,
and he cannot recover damages if injury results. Langley v. S.R. Co., 101 S.E. 286; Routledge
v. Auto Co., 95 S.W. 749.
Where guests knows danger but remains silent and makes no effort to reduce it, he is
guilty of contributory negligence. Bauer v. Tougaw, 224 P. 20; Hardie v. Barrett, 101 A. 75.
Law frowns upon one who laughs in face of danger but, after being injured, seeks to blame
creator of such danger. City v. Thuis, 63 N.E. 315; Bush v. R.R. Co., 64 P. 624.
Guest in car driven at excessive speed should caution driver of danger; protest against it,
and unless delivered from it, should quit car, if that may be done with safety, or direct vehicle
to be stopped, and when stopped, get out. Clark v. Traver, 200 N.Y.S. 52; Jepson v. C.S. Ry.,
129 N.Y.S. 233.
Findings of trial court are not necessarily binding on court of review, but may be set aside
when clearly against weight of evidence if productive of injustice. Thuringer v. Traston, 144
P. 866; Burch v. S.P. Co., 32 Nev. 75.
Res ipsa loquitur cannot apply when facts are observed and testified to. Then there is no
occasion for inference. Baldwin v. Smitherman, 88 S.E. 854; Hennekes v. Beetz, 217 S.W.
533.
S. H. Rosenthal and L.D. Summerfield, for Respondents:
Being successful in lower court, we should have evidence considered as proved, under
elemental rule that where evidence conflicts, findings will not be disturbed.
Driver is liable for negligence causing injury to guest. Huddy on Automobiles (6th ed.),
sec. 678; Babbitt, Motor Vehicles (3d ed.), sec. 1598.
49 Nev. 261, 263 (1926) Nicora v. Cerveri
Unreasonable speed is in itself negligence. Huddy, sec. 305; Babbitt, sec. 1308.
Losing control through excessive speed on curve shows negligence. Huddy, sec. 326;
Berry (4th ed.), sec. 160.
Res ipsa loquitur has been applied in similar situation. Lawrence v. Pickwich Stages, 229
P. 885.
Decisions are not consistent as to when passenger has any control. In many cases mere
quest has no such control as to charge him with negligence at failure to protest against driver's
acts. Better authority relieves guest from stricter obligation. Drivers resent interference;
guests feel great reluctance to protest. Being invited he sits back and leaves driving to driver.
Any duty imposed on passenger should be confined to warning of danger unseen by driver, or
protesting when driving is so reckless no sane person would risk remaining in car. Babbitt,
sec. 1622.
OPINION
By the Court, Ducker, J.:
The court in this case awarded the respondents the sum of $3,600 as compensatory
damages suffered by the respondent Teresa Cerveri as the result of an automobile driven by
appellant, with whom she was riding as a guest, striking the guy wire of a telephone pole. The
court found that appellant was negligent, in that he was driving at an unreasonable and
excessive rate of speed around a right angle turn of the county highway in an effort to escape
from a police officer who had signaled him to stop.
The parties reside in the city of Reno. On Sunday afternoon, June 1, 1924, they went for a
ride in appellant's automobile. Appellant drove the machine, and on the front seat with him
were his younger daughter and Jose Sessano, a guest of the former. Appellant's wife, Mrs.
Cerveri, and her little daughter occupied the rear seat. They left Reno, going to Bowers
Mansion, and, returning to Reno, passed through this city, and went to the city of Sparks.
49 Nev. 261, 264 (1926) Nicora v. Cerveri
returning to Reno, passed through this city, and went to the city of Sparks. Here Sessano left
the automobile, and appellant started to drive back to Reno. He reached Fifteenth Street in
Sparks, and continued to where Fifteenth Street connects by a right angle turn with the county
highway leading west to Reno. There was a telephone pole about six feet north of the point
where the northern line of the county highway meets the curve. A guy wire extended from the
pole to the ground at a point the same distance north of the highway. Appellant drove around
the turn, and the right side of the automobile struck the guy wire. The impact stopped the
machine, but did not overturn it. None of the occupants were thrown from their seats, and
none were hurt, except Mrs. Cerveri, who sustained severe injuries. She was unable to get out
of the automobile, and was removed and taken to a physician in Reno. It was disclosed that
the third finger of her right hand was torn down deeply into the bone, and her pelvis was
fractured. She suffered considerable pain. She remained in the hospital for over a month, and
at the time of the trial was still being treated by a doctor. By reason of the injury to her finger
it will be permanently stiff. As a result of the fractured pelvis there is a shortening of
three-quarters of an inch or an inch of the right leg. She will always walk lame, and may
probably require the use of a cane for the rest of her life.
1. Appellant contends that the accidence was unavoidable. He testified that at no time on
his return from the place in Sparks where Sessano left the automobile to the curve on
Fifteenth Street was he traveling in excess of 25 miles an hour. Before he reached the curve
he saw two automoblies coming towards him almost abreast on the county highway about 25
feet from the curve. To avoid a collision, he was obliged to make a wide turn. He slowed
down to about 18 or 20 miles an hour, applied the brakes, and the automobile skidded striking
the guy wire.
Mrs. Nicora, the wife of the appellant, was a witness in his behalf. She did not testify as to
speed of the automobile in Sparks, except to say that Mrs.
49 Nev. 261, 265 (1926) Nicora v. Cerveri
automobile in Sparks, except to say that Mrs. Cerveri was urging appellant to go faster, and
that sometimes he would go faster at her request, but slowed down on the curves.
Appellant was driving a 1923 model Buick car. Two witnesses connected with the
Heidtman Buick Agency, who had had considerable experience in driving automobiles,
testified to demonstrations made by them in driving a Buick car of the same model as
appellant's around the curve. In substance, their testimony in part was to the effect that, on
account of a certain peculiarity of the curve, an expert driver could not drive around it at a
great speed that 20 miles an hour and remain on the pavement, or faster than 25 miles an hour
without danger of overturning, and that one who was not a good driver could not hold the car
on the pavement at 20 miles an hour. One of these witnesses also testified that one could not
drive an automobile safely around the corner from C Street into Fifteenth Street at 25 miles
an hour. He said also that the tendency of an automobile making this turn would be to slide
sideways and throw up a lot of dust and dirt. This witness was the manager of the Heidtman
Buick Agency, and had sold the automobile to appellant. He testified that it had traveled
50,000 miles before it was purchased by appellant, and that a Buick car of that type, used to
that extent, could not, in his opinion, run at a greater rate of speed than about 40 miles an
hour.
Respondents contend that their evidence established the appellant's negligence, and that
they are therefore entitled to the benefit of the general rule that, where there is a conflict of
evidence, the findings of the lower court cannot be disturbed. Besides Mrs. Cerveri, four
witnesses testified on the part of respondents as to the speed with which appellant's
automobile was traveling through Sparks shortly before the accident happened. According to
them, he went up C Street and turned into Fifteenth Street. When he was about five blocks
distant from Fifteenth Street, a traffic officer whistled for him to stop and, on this failing to
obey the signal, the former mounted his motorcycle and pursued him.
49 Nev. 261, 266 (1926) Nicora v. Cerveri
former mounted his motorcycle and pursued him. The traffic officer testified that when he
whistled appellant was traveling about 35 miles an hour going west on C Street. When he
whistled appellant looked squarely at him and increased his speed. The officer estimated the
speed of the automobile when it reached Fifteenth Street to be between 40 and 50 miles an
hour. The officer was then about a block behind him, and was traveling between 50 and 60
miles an hour. When the officer turned into Fifteenth Street, he saw appellant's automobile at
the point where it struck the wire. This point is distant from the corner of C Street and
Fifteenth Street the length of two blocks and the width of two streets. The blocks are about
300 feet long.
Another witness for respondents, a locomotive engineer, testified that he was on the front
porch of his residence on C Street when appellant drove by. The witness saw the officer, and
heard him whistle. He estimated that appellant was traveling about 40 miles an hour. He
increased his speed when the officer whistled, and increased it as he proceeded up C Street.
He turned into Fifteenth Street. The witness judged that appellant was driving 60 miles an
hour when he turned into Fifteenth Street.
Two other witnesses saw appellant driving on Fifteenth Street. One of them testified that
the automobile was traveling between 35 and 40 miles an hour when the officer whistled. The
other said it was traveling between 40 and 45 miles an hour when he saw it, and was
increasing in speed.
The sheriff of Washoe County was a witness on behalf of respondents. He had driven from
Reno to Sparks, and was driving south on Fifteenth Street. He had nearly reached the corner
of C Street when he observed the appellant coming out of the street. He testified further that,
when appellant turned from C Street into Fifteenth Street, his car threw up a lot of dust and
came near to turning over. He judged that appellant's car was going between 35 and 40 miles
an hour when it passed him and seemed to be picking up it speed as it approached him.
49 Nev. 261, 267 (1926) Nicora v. Cerveri
passed him and seemed to be picking up it speed as it approached him. He also saw the traffic
officer in pursuit. About 10 minutes later the sheriff returned and went to the scene of the
accident. In regard to his observations there he testified that appellant's car was right side up.
He thought that all four wheels were off the pavement, and observed no damage to the car,
except a broken windshield. I could see, he said, where the car slid on the pavement for 30
or 40 feet. It looked like the same car where it slid on the pavement.
In substance, Mrs. Cerveri testified that, after appellant let Sessano out at Sparks, he drove
very fast; that she looked at the speedometer several times, and saw it registered 55 miles;
that the automobile was traveling 55 miles an hour when it went into the ditch. She further
testified that she heard the traffic officer whistle and saw him coming behind. She testified
also that she told appellant that the police officer was right behind him and to stop; and the
appellant replied: I know the police officer is coming up, and I want to go faster, so I won't
pay no fine. She said that he did go faster. Clearly, the foregoing summary presents a
conflict of evidence with substantial evidence supporting the finding of the court on the issue
of appellant's negligence.
No witness testified as to how rapidly the automobile was running on or near the curve
where the accident happened, except Mrs. Cerveri and appellant, and their evidence is in
sharp conflict. If the speed of the automobile there was 55 miles an hour, or approximately
that, the trial court was justified in concluding, as it did, that such fast driving amounted to
negligence on the part of the appellant, and was the proximate cause of the injuries sustained
by respondent. The highway is a well-traveled one. This may be inferred from the fact that it
connects the cities of Reno and Sparks, and from the facts that at the time the accident
happened there were at least four automobiles traveling on the highway at Fifteenth Street
near the curve, and a large number of cars collected at the scene of the accident shortly
afterwards.
49 Nev. 261, 268 (1926) Nicora v. Cerveri
shortly afterwards. This was a right angle turn, and, according to two expert drivers who
made demonstration there, a skillful driver could not drive around it safely at a greater speed
than 20 miles an hour. One of these witnesses testified that an ordinary driver could probably
hold his car on the road at about 15 miles an hour. Appellant was a driver of little experience.
To use his own expression, the automobile he was driving was the first he had his hands on,
and it appears he had only been driving that during the four months he owned it prior to the
accident.
The testimony of respondent's witnesses tends to show that appellant drove at a fast rate of
speed through C Street and down Fifteenth Street. Their estimates range from 35 to 60 miles
an hour. The manager of the Buick agency, as we have previously stated, was of the opinion
that the turn from C Street into Fifteenth Street could not be made safely by an automobile
going 25 miles an hour. The sheriff's testimony tends to show that appellant made this turn
recklessly; that his automobile came near to turning over at the turn, and immediately
afterwards was going between 35 and 40 miles an hour, and was increasing its speed. During
all of this course appellant was pursued by a traffic officer on a motorcycle, and, according to
Mrs. Cerveri, had knowledge of the pursuit, and was endeavoring to escape.
These circumstances tended to show that, when the accident occurred, appellant was not
exercising ordinary care in managing his automobile. An inexperienced autoist, driving
through a city at a high rate of speed, pursued by a traffic officer from whom he is
endeavoring to escape, suddenly confronted on a sharp turn by two automobiles coming
abreast, does not inspire confidence of that mental poise essential to the exercise of
reasonable care. The undisputed testimony of the two expert drivers to the effect that a
skillful driver could not drive an automobile around the curve and keep it on the pavement at
a higher rate of speed than 20 miles an hour is not sufficient to disprove negligence. The car
was off, or almost off, the pavement when it stopped.
49 Nev. 261, 269 (1926) Nicora v. Cerveri
or almost off, the pavement when it stopped. What effect the striking of the guy wire may
have had in preventing it from going further off the pavement, or of turning over, no one can
tell. Moreover, conceding the fact, which their testimony and appellant's testimony tends to
prove, that he was traveling 18 or 20 miles an hour when the accident happened, the fact,
which the testimony of the other witnesses tends to establish, that he was going at a high rate
of speed just before he reached the curve would have a tendency to show his inability to
suddenly slow down when confronted with an emergency with the same care that he
otherwise might have exercised had he been proceeding at a moderate gait. This is especially
true of an inexperienced driver. The sheriff was of the opinion that appellant's car slid on the
pavement for 30 or 40 feet.
The trial court found that there was no contributory negligence on the part of respondent
Mrs. Cerveri. This finding is also sustained by substantial evidence. Appellant disputes this. It
is contended that the testimony of appellant and his wife shows that during the entire trip
Mrs. Cerveri repeatedly urged appellant to drive faster, and that her insistence on fast driving
amounts to contributory negligence. While the record discloses that this testimony was not
denied by Mrs. Cerveri in detail, it shows that it was denied by her generally. She was asked
the question: On June 1, 1924, at any time, did you tell Mr. Nicora what to do while you
were riding with him? The answer was: No. She also declared that she asked appellant to
permit her to get out three different times as they were passing through Reno on the way to
Sparks, and assigned as a reason for the request that he was driving too fast. She testified
further that he would not stop and permit her to get out and walk home as she requested him
to do. She also testified, as we have previously stated, that on the return from Sparks, when
she heard the traffic officer whistle, she told appellant to stopthat the police officer was
right behind. So on the whole of her testimony we do not think that the claim that her
insistence on fast driving was not substantially denied, is sustained.
49 Nev. 261, 270 (1926) Nicora v. Cerveri
insistence on fast driving was not substantially denied, is sustained. What would be a correct
conclusion of law under the facts of this case, if it appeared without contradiction that Mrs.
Cerveri was urging appellant to drive fast at or near the scene of the accident, it is
unnecessary to state. Such a case is not presented by the evidence. Consequently we need not
comment on the authorities presented on this theory.
2-5. On the question of contributory negligence as well as on appellant's negligence,
appellant insists that Mrs. Cerveri's testimony is so contradictory and so refuted by other
testimony as to render it unworthy of belief, and that it does not therefore amount to
substantial evidence in support of either of the findings. We do not share this view. The
circumstances in this regard pointed out by counsel in his argument went to the credibility of
the witness, and were for the trial court. Mrs. Cerveri had an opportunity to leave the
automobile when it stopped in Sparks, and it is contended that by her failure to do so she
acquiesced in appellant's fast driving, and cannot recover. Stated in general terms, the duty
imposed by law upon Mrs. Cerveri as a guest in the automobile was the exercise of ordinary
care for her own safety. What constitutes such ordinary care on the part of an invited guest in
an automobile is dependent upon the facts and circumstances of each case. We are not
prepared to say that the evidence up to the point of stoppage of the car in Sparks is sufficient
to charge her with negligence in not leaving the automobile. Up to this point there is no
evidence of excessively fast driving or reckless driving. True, Mrs. Cerveri said she wished to
get out in Reno because he was driving too fast, but she did not say how fast, or testify to any
fact from which excessive speed under the circumstances could be inferred. As to the speed
of the automobile on the return from Bowers Mansion to Reno, the appellant testified as
follows:
And anybody coming I slow down to 20, 25 miles like that.
49 Nev. 261, 271 (1926) Nicora v. Cerveri
that. Any time nobody in the road I go a little faster, about, 30, 35 miles.
This testimony is not contradicted. Thirty or thirty-five miles on a clear highway may have
been too fast to suit Mrs. Cerveri, but it does not follow that because she did not get out at the
first opportunity thereafter she acquiesced in the kind of driving that the evidence of
respondent's witnesses tends to show appellant exhibited on the return from Sparks.
Moreover, according to her testimony, she did all she could to prevent it. She did more than
make a mild protest. She called on the appellant to stop in obedience to the command of the
traffic officer.
6. It is contended that appellant's negligence is imputable to Mrs. Cerveri, for the reason
that they were engaged in a joint enterprise; namely, a pleasure trip for the mutual benefit of
each. This contention is resolved against appellant by the findings of the trial court. The court
found that there is evidence to sustain the finding that Mrs. Cerveri was an invited guest. The
automobile belonged to appellant. Mrs. Cerveri had no proprietary interest in it, and
consequently no right of control over the driver who owned it. But it is claimed that she
assumed control over the appellant by directing him to drive faster. This phase of the
evidence was rejected by the trial court when it found that she at all times and under all
circumstances leading up to and surrounding said accident exercised due care and caution.
But, conceding that she did, as claimed, direct the driver to drive faster, said action would not
show that she was engaged in a joint enterprise with appellant. While the decisions are not
harmonious as to what constitutes a joint enterprise within the rule of imputable negligence,
we think the true rule is stated in 20 R.C.L. p. 150:
Parties cannot be said to be engaged in a joint enterprise, within the meaning of the law
of negligence, unless there be a community of interests in the objects or purposes of the
undertaking, and an equal right to direct and govern the movements and conduct of each
other with respect thereto.
49 Nev. 261, 272 (1926) Nicora v. Cerveri
and govern the movements and conduct of each other with respect thereto. Each must have
some voice and right to be heard in its control and management.
Appellant and Mrs. Cerveri, as well as the other occupants, had the common purpose of
the pleasure trip, but the other elements required by the rule to constitute a joint enterprise,
that is, an equal right on the part of Mrs. Cerveri to direct the route to be traveled and the
manner of going, was entirely lacking. Appellant had the exclusive right in this regard. The
foregoing rule was adopted in Pope v. Halpern, 223 P. 470, 193 Cal. 168.
The facts of that case disclosed that the plaintiff's minor son was killed while riding on the
rear fender of a motorcycle operated by a friend when the motorcycle collided with an
automobile. It was contended that the negligence of the driver of the motorcycle was
imputable to plaintiff's son. The court held that they were not engaged in such a joint
enterprise as to bring the decedent within the rule of imputable negligence. The court said:
The circumstances of this case do not show that the decedent and Garns together had such
control and direction over the motorcycle as to be practically in the joint or common
possession of it. If the decedent did participate in the selection of the route, or the regulation
of the speed of the motorcycle, he did so apparently as a guest, and not as one entitled as of
right to be heard in such matters.
And again:
* * * it is not sufficient merely that the passenger of the machine indicate the route, or
that both parties have certain plans in common, such as a joy ride,' but the community of
interest must be such that the passenger is entitled to be heard in the control and management
of the vehicle.
This is a well-reasoned case, and, in our opinion, correctly states the law as to the
imputation of negligence on account of a joint enterprise. The ruling of the court in
Wentworth v. Town of Waterbury, 96 A. 334, 90 Vt. 60, cited by appellant on this question,
is repudiated by Pope v. Halpern, supra, and also by a former decision of that court. In
Kelly v. Hodge Transportation System {Cal. Sup.), 242 P.
49 Nev. 261, 273 (1926) Nicora v. Cerveri
repudiated by Pope v. Halpern, supra, and also by a former decision of that court. In Kelly v.
Hodge Transportation System (Cal. Sup.), 242 P. 76, the same doctrine is approved.
7. We have examined the evidence as to the damages sustained by Mrs. Cerveri, and are of
the opinion that the amount awarded by the court is not excessive.
The judgment is affirmed.
____________
49 Nev. 273, 273 (1926) Twilegar v. Stevens
TWILEGAR v. STEVENS (DONOVAN, Intervener)
No. 2704
April 5, 1926. 244 P. 986.
On Motion to Dismiss Appeal
1. Appeal and ErrorUndertaking Filed More Than Five Days After Notice of Appeal Held
Not Within Time Limit (Rev. Laws, 5330, 5346, 5358).
Where notice of appeal was filed April 23, undertaking filed on May 5, was not within the five-day
limit of Rev. Laws, secs. 5330, 5346; tendering of sufficient bond, in view of section 5358, and showing
excusable neglect, on receipt of notice to dismiss and before hearing thereon, not being sufficient.
2. Appeal and Error.
Filing appeal bond, under Rev. Laws, 5330, 5346, is jurisdictional.
See 3 C.J. sec. 1141, p. 1107, n. 57; sec. 1253, p. 1180, n. 80.
Appeal from the Seventh Judicial District Court, Esmeralda County; Wm. E. Orr, Judge.
Action by A.J. Twilegar and others against Theron Stevens, trustee, and another. Judgment
for plaintiffs, and intervener, James Donovan, appeals. Appeal dismissed.
James G. Pfanstiel and John F. Kunz, for Movants:
Appeal must be taken within six months after rendition of final judgment. Rev. Laws, sec.
5329, as amended 3 Rev. Laws, p. 3340.
Appeal is taken by filing and serving notice within six months from date of final judgment,
and filing undertaking within five days after filing notice of appeal. Rev.
49 Nev. 273, 274 (1926) Twilegar v. Stevens
Laws, 5330, 5346; Lambert v. Moore, 1 Nev. 345; Peran v. Monroe, 1 Nev. 486; Stafford
v. White River Co., 24 Nev. 184.
Sustaining demurrer without leave to amend pleading is final judgment. 23 Cyc. 671; 2
Freeman on Judgments, 1567.
Rev. Laws, 5358 provides for insufficiency, not entire lack of undertaking. Pedroli v. Scott,
44 Nev. 266.
James Donovan (Intervener), in pro per.:
To constitute sufficient judgment on demurrer there should be formal adjudication thereon,
such as, It is therefore adjudged that demurrer be overruled or sustained. 23 Cyc. 669, n.
16.
Statute does not authorize appeal from mere sustaining or overruling of demurrer. Keyser
v. Taylor, 4 Nev. 435.
Action on demurrer can be reviewed only on appeal from final judgment entered in action or
special proceeding. Hanke v. McLaughlin, 20 Cal. App. 204; Ashley v. Olmstead, 54 Cal.
516; Hadsall v. Case, 15 Cal. App. 541. In all these cases demurrers were sustained without
leave to amend.
Rule in Peran v. Monroe 1, Nev. 484, is subject to modification. Appeal should not be
dismissed if party brings himself within Rev. Laws, 5358. Reese M. Co. v. Rye Patch M. Co.,
15 Nev. 341. We therefore ask court to approve new bond tendered herewith and hear case on
merits.
OPINION
By the Court, Coleman, C. J.:
1. This case is before the court on respondent's motion to dismiss the appeal. Respondent
moves to dismiss upon two grounds, namely, that more than six months elapsed from the date
of the rendition of the final judgment and the filing of the notice of appeal and the
undertaking before the appeal was taken, and because more than five days elapsed between
the filing of the notice of appeal and the filing of the undertaking on appeal.
49 Nev. 273, 275 (1926) Twilegar v. Stevens
on appeal. Since the motion must be sustained upon the latter ground, we do not deem it
necessary to consider the former.
Section 5330, Rev. Laws, reads:
An appeal is taken by filing with the clerk of the court in which the judgment or order
appealed from is entered, a notice stating the appeal from the same or some specific part
thereof, and within three days thereafter serving a similar notice or copy thereof on the
adverse party or his attorney. * * * The order of service is immaterial, but the appeal is
ineffectual for any purpose unless within five days after service of the notice of appeal an
undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or
the undertaking be waived by the adverse party in writing.
Section 5346, Rev. Laws, reads:
To render an appeal effectual for any purpose, * * * a written undertaking shall be
executed on the part of the appellant * * * to the effect that the appellant will pay all damages
and costs which may be awarded against him on the appeal, not exceeding three hundred
dollars; or that sum shall be deposited with the clerk with whom the judgment or order was
entered, to abide the event of the appeal. Such undertaking shall be filed, or such deposit
made with the clerk, within five days after the notice of appeal is filed. * * *
The notice of appeal was filed on April 23, 1925, and the undertaking was filed on May 5,
1925, twelve days later; hence the bond was not filed within the time limit.
Appellant claims, however, that in view of section 5358, Rev. Laws, and the showing of
excusable neglect, he should be relieved from the failure to file the undertaking within the
five days after the notice of appeal was filed, since he promptly tendered a good and
sufficient bond upon the receipt of notice to dismiss, and before the hearing thereon, in
compliance, as he contends, with section 5358, which reads:
No appeal shall be dismissed for insufficiency of the notice of appeal or undertaking
thereon; provided, that a good and sufficient undertaking approved by the justices of the
supreme court or a majority thereof, be filed in the supreme court before the hearing
upon the motion to dismiss the appeal; provided, that the respondent shall not be
delayed, but may move when the cause is regularly called, for the disposition of the same,
if such undertaking be not given.
49 Nev. 273, 276 (1926) Twilegar v. Stevens
notice of appeal or undertaking thereon; provided, that a good and sufficient undertaking
approved by the justices of the supreme court or a majority thereof, be filed in the supreme
court before the hearing upon the motion to dismiss the appeal; provided, that the respondent
shall not be delayed, but may move when the cause is regularly called, for the disposition of
the same, if such undertaking be not given. An appeal shall not be dismissed for any
irregularity not affecting the jurisdiction of the court to hear and determine the appeal or
affecting the substantial rights of the parties and where any defect or irregularity can be cured
by amendment, such amendment shall be allowed on proper application upon such terms as
the supreme court shall deem just.
In support of his contention appellant says that as soon as the notice of appeal is filed and
served this court acquires jurisdiction of the case, and that the filing of the undertaking is not
jurisdictional, hence the motion to dismiss should be denied.
2. We think the contention that the filing of the undertaking is not jurisdictional is not well
founded. This seems to be settled by the last sentence of section 5330, Rev. Laws, quoted
above, which provides that the appeal is ineffectual for any purpose unless within five days
after service of the notice of appeal an undertaking be filed, or deposit made, or unless the
undertaking or deposit be waived. This is an unequivocal requirement. Substantially the same
provision is found in section 5346.
The question presented is not a new one. In fact, the law may be said to be settled in this
state as to the point made. In Lambert v. Moore, 1 Nev. 347, construing the language
mentioned, the court said:
The language of this section is explicit, and it has been held in California, under the
section of their act, from which ours is copied, that if more than five days intervened between
the notice and bond or undertaking, the whole proceeding is void, and no appeal is perfected.
In Peran v. Monroe, 1 Nev. 484, where the question was presented, the court said: "The
appeal is taken by filing and serving the notice, and the appeal so taken becomes
effectual or complete only by the filing of an undertaking within five days after such
notice.
49 Nev. 273, 277 (1926) Twilegar v. Stevens
The appeal is taken by filing and serving the notice, and the appeal so taken becomes
effectual or complete only by the filing of an undertaking within five days after such notice.
The failure to file such undertaking within five days renders the filing of the notice nugatory,
but if filed within that time the last act relates back to the first, and the appeal becomes
complete.
See, also, Spafford v. White River Valley L. &. L. Co., 51 P. 115, 24 Nev. 184; Shute v.
Big Meadow Inv. Co., 170 P. 1049, 41 Nev. 361.
It is contended that in view of section 5358, Rev. Laws, we should deny the motion. As
quoted above, this section provides that no appeal shall be dismissed for insufficiency of the
undertaking on appeal, provided that a good and sufficient one, approved by a majority of the
justices of this court, be filed before the hearing on the motion to dismiss. Appellant tendered
such an undertaking, which was approved, subject to the disposition of the motion. In
opposition to the contention it is said that the statute in question does not authorize the filing
of a bond after the expiration of the five days, where none has been filed, but merely the filing
of a bond to cure any insufficiency in an undertaking which was filed within the time limit.
On the other hand, it is said that we held to the contrary in Shute v. Big Meadow Co., supra.
We do not think the case supports the contention. It appears from the opinion that the
question here raised was not considered or determined by the court. While there was in the
record an instrument in the form of an undertaking, which was filed 2 1/2 months after the
filing of the record on appeal, it also appears that the instrument was not tendered for
approval or approved, nor does it appear what would have been done had it been tendered for
approval. Nor do we think the statute open to the construction now contended for. It provides
that no appeal shall be dismissed for insufficiency of the undertaking. There is a wide
difference between insufficiency of an undertaking and the total lack of an undertaking. The
statute does not say that when there is a failure to file an undertaking relief may be had in
the manner stated.
49 Nev. 273, 278 (1926) Twilegar v. Stevens
is a failure to file an undertaking relief may be had in the manner stated. We think the
question is disposed of in the case of Ward v. Pittsburg Silver Peak G.M. Co., 153 P. 434,
436, 39 Nev. 80, 101, where we said:
We are mindful of that section of our Code (Rev. Laws, 5358) which provides * * * An
appeal shall not be dismissed for any irregularity not affecting the jurisdiction of the court to
hear and determine the appeal or affecting the substantial rights of the parties and where any
defect or irregularity can be cured by an amendment,' etc. The matter with which we are
confronted in the case at bar is one of jurisdiction. As has been stated by this court in
numerous decisions, the right of appeal is one regulated by statute; and, where there is a
failure on the part of the appellant to at least substantially comply with the provisions of the
statute, this court can do naught else than dismiss the matter.
The court acquired no jurisdiction over the subject matter as a result of the motion to
dismiss.
It is ordered that the appeal be dismissed.
____________
49 Nev. 278, 278 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
TRUCKEE-CARSON IRRIGATION DISTRICT ads.
McLEAN
TRUCKEE-CARSON IRRIGATION DISTRICT ads.
CENTRAL PACIFIC RAILWAY CO.
No. 2596
April 5, 1926. 245 P. 285.
1. Water.
Irrigation Act of 1919 (Stats. 1919. c. 64) held constitutional.
2. Water.
In so far as proceedings for organization of irrigation district are concerned, irrigation laws should be
liberally construed.
3. WaterCourt Held Not to Have Exceeded Jurisdiction in Finding Irrigation District Duly
Organized.
The trial court held not to have exceeded its jurisdiction in adjudging and finding that an irrigation
district had been duly organized and constituted, where no interested person was deprived of a single
substantial right in matter of organization.
4. WaterProposed Contract of Irrigation District with United States for Construction by
Government of Drainage System for District Held Valid.
Proposed contract between irrigation district, created and authorized under Act Cong. June 17, 1902
(U.S. Comp. Stats. sec. 4700 et seq.), and organized under Rev. Laws Nev. secs.
49 Nev. 278, 279 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
4723-4791, amended by Stats. 1915, c. 278, and by Stats. 1917, c. 150, with later proceedings in
attempted compliance with substitute act of 1919 (Stats. 1919, c. 64), and the United States, for
construction by the government of a drainage system for the district, carried by two-thirds majority vote
of qualified electors of the district in accordance with sections 15 and 56 of the act of 1919, held valid
under sections 54-65, inclusive, and under Act Cong. Feb. 21, 1911, sec. 2 (U.S. Comp. Stats. sec. 4739),
and Act Cong. Aug. 13, 1914 (U.S. Comp. Stats. secs. 4713a et seq.).
5. Appeal and ErrorSupreme Court Is Not Concerned with Question as to Construction of Proposed
Contract, or Its Enforceability when Questioned in Lower Court as to Validity.
The supreme court on appeal is not concerned with question as to construction of proposed contract
of irrigation district with the government, or its enforceability, where question put to lower court was as
to validity of contract.
6. WaterLegislature Held to Have Power to Provide for Assessing Benefits for Construction of Drainage
Works in Irrigation District To Be Apportioned to Higher Lands Not Then Actually Requiring Drainage.
Legislature held to have power to provide under Stats. 1919, c. 64, sec. 17, for assessment of benefits
for construction of drainage works to be apportioned to higher lands not then actually requiring drainage
because contribution of water by their irrigation must be carried off from lower lands.
7. Water.
Assessment for drainage of irrigation district, based on flat rate, and not on actual benefits accruing to
land, is invalid.
8. Water.
Where benefits derived by drainage are equal, the assessment may be the same.
9. Water.
Under Stats. 1919, c. 64, sec. 54, irrigation district may be used for drainage purposes to forestall, or
remedy, unfortunate conditions.
10. Water.
Stipulation between attorneys for irrigation district and railway company, excluding right of way from
district, held properly confirmed by lower court decree.
11. Constitutional LawApportionment of Assessment Benefits for Drainage, Reduced after
Investigation by Irrigation District Directors, Held not Denial of Equal Protection of
Law or Deprivation of Due Process of Law.
Apportionment of assessment benefits for drainage purposes, reduced after investigation by directors
of irrigation district, held not denial of equal protection of law or deprivation of due process of law.
12. Water.
Owner of irrigable land within irrigation district must respond to assessments, where water is made
available for his use, though not used.
49 Nev. 278, 280 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
13. Water.
Question of whether land is susceptible of irrigation is one of fact, involving question of benefits.
14. Water.
Assessment for drainage project must be based on benefits derived from it, and not on benefits derived
from irrigation.
15. WaterAssessment for Drainage Project Must Be Based on Benefits Immediately
Accruing, or which Will Accrue, from Construction.
An assessment for drainage project, basing on benefits, must be based on benefits immediately
accruing, or which will clearly accrue, from construction of the work.
16. Appeal and ErrorSupreme Court Will Not Disturb Trial Court's Findings on
Conflicting Evidence as to Benefits from Drainage Project Accruing to Land within
Irrigation District, where No Principles were Misapplied in Arriving at Confirmation of
Apportionment of Benefits.
Trial court was exclusive judge of question of benefits from drainage project to lands within irrigation
district, and supreme court will not disturb its findings on conflicting evidence, where no principles were
misapplied in arriving at confirmation of apportionment of benefits.
See 40 Cyc. p. 817, n. 85 (new), 86; p. 819, n. 95 (new); p. 820, n. 11; p. 821, n. 23 (new); p. 824, n. 51, 56; (5,
16) 3 C.J. sec. 580, p. 689, n. 41; sec. 618, p. 718, n. 50; 4 C.J. sec. 2855, p. 883, n. 33.
Appeal from the Eighth Judicial District Court, Churchill County; C.J. McFadden, Judge.
Special proceeding on petition of the Truckee-Carson Irrigation District, opposed by Annie
McLean and others and the Central Pacific Railway Company. Decree was rendered,
confirming the organization of the district and annexation of certain land, and confirming and
approving a proposed contract of the district with the United States government to construct a
drainage system, and apportionment of benefits to accrue thereunder, and adjudging said
contract valid. From orders denying the respective motions for a new trial, Annie McLean and
others and the Central Pacific Railway Company separately appeal. Affirmed. Rehearing
denied.
W. M. Kearney and McCarran & Mashburn, for McLean; Brown & Belford and W.M.
Kennedy, for Central Pacific Railway Co., Appellants: This court said in Hendrich v. Walker
River Irrigation District, 44 Nev. 321
49 Nev. 278, 281 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
This court said in Hendrich v. Walker River Irrigation District, 44 Nev. 321, that it was
plan of assessment of benefits required to be carefully ascertained and fairly apportioned that
commended it as wise public policy. Benefits charged are presumed to be returned in
enhanced value of land.
If these are not treated as original proceedings in district court, sec. 6 of art. 6 of
constitution is violated. Ormsby Co. v. Kearney, 37 Nev. 314; Knox v. Kearney, 44 Nev. 393.
Not all constitutional questions were settled in Hendrich case, supra. Courts hold opposing
views of law when different phases are presented. Compare Pitt v. Scrugham, 44 Nev. 418,
with Vineyard etc. Co. v. District Court, 42 Nev. 1.
Hendrich case, supra, holds affairs of district should be left to those affected, yet act excludes
noncitizen and small land owners from even voice in election, and subjects them to
assessments, thereby violating electoral privilege and due process clauses. It also held that
district is not municipal corporation. State v. Preble, 18 Nev. 251; 5 R.C.L. 580.
Act violates local and special laws clause.
Neither United States nor other mortgagee holding lien on individual pieces of land can
contract with district to take other lands in district for security. Art. 4, secs. 20 and 21.
Legislative power to specify what district board may do cannot be delegated to Congress,
much less to bureaus or departments. Clark v. Mobile Port, 67 Ala. 217.
Act attempts to confer sort of appellate power on district court to ratify administrative
proceedings. If this were possible appeal to supreme court would not be authorized. Scossa v.
Church, 43 Nev. 403.
Lands on east side of river should not be taxed to drain lands on west side. River is natural
drain. Eastern lands should be drained, if necessary, by local assessment. Stats. 1919, sec. 49.
49 Nev. 278, 282 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
Liability of obligations must be assumed voluntarily. Board of Directors v. Collins, 46
Nebr. 425.
Assessments are void where no benefits accrue. High lands not needing drainage should
not be assessed. K.C.S. Ry. Co. v. District, 256 U.S. 658.
Mere fact that certain land is within district does not necessarily mean that it is capable of
receiving benefits from irrigation or drainage. N.P. Ry. Co. v. Walla Walla Co., 200 P. 585.
Why should objectors disprove allegations of petition when petitioners have not proven
them? Failure to prove facts required compels court to deny petition. Fallbrook Irrigation
District v. Alila, 39 P. 793.
Public lands cannot be included or taxed if district is formed for purpose other than that
recognized in congressional act. United States v. Rickey etc. Co., 164 Fed. 496.
Unless and until electors authorize bond issue for definite sum, board has no power to
apportion benefits. Board's failure to examine each tract makes assessment void. Procedure is
statutory and must be complied with. Hendrich case, supra. Swamp etc. v. Gwynn, 12 P. 462.
Board has no power to stipulate to exclude railroad land. Statute provides method.
Medford Irrigation District v. Hill, 190 P. 857.
Obligation of contract cannot be impaired. Dartmouth College case, 4 L. Ed. 629.
If we follow Bond case, 69 L. Ed. 473, all project lands must be assessed. If we follow act,
cost of drains must be apportioned according to benefits received.
Levy proportioned to quantity of land is unconstitutional. Benjamin v. Bog etc., 68 N.J.L.
197.
Extent of watershed is not proper basis. Amount of surface water for which drainage is
required is. Blue v. Wentz, 43 N.E. 493.
Same principles govern in contracts between corporation and United States as between
individuals. Reading etc. Co. v. United States, 69 L. Ed. 538.
49 Nev. 278, 283 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
Cooke, French & Stoddard, for Respondent:
Similar irrigation acts have been attacked from every possible point, but uniformly upheld.
In Re Auxiliary etc. District, 207 P. 615; 3 Kinney on Irrigation (2d ed.), sec. 1045; Hendrich
v. Walker River etc., 44 Nev. 321.
Every irrigation district state has held irrigation district to be quasi public corporation, and
not municipal corporation. Cases supra; Randolph v. Stanislaus Co. 186 P. 627.
Notice of an opportunity to test correctness of levy were given. Due process clause was not
violated. Fallbrook case, 41 L. Ed. 369; Gallup v. Schmidt, 46 L. Ed. 207.
Ownership, citizenship and residence requirements have been upheld in all irrigation
states. Board etc. v. Collins, 64 S.W. 1087; Anderson v. District, 85 P. 316, and cases supra.
Appellants did not contend in trial court that they were alien bona fide residents of state,
holding property within district and do not now. Person questioning constitutionality of act
has no standing unless he belongs to class sought to be protected. 6 R.C.L. 91.
Alien owners have same privilege of being heard as citizens, hence are not deprived of
property without due process. Collins and Anderson cases, supra.
Irrigation district laws are not special or local. Walker River case, supra.
If there be any unwise provision in act, legislature and not court should remedy it.
Higher lands do or may contribute water to lower lands which must be drained.
If district duties are obnoxious to county officers, remedy is with legislature, not court.
We admit burden was on plaintiffs, and district as petitioner did establish prima facie case.
Appellants should have rebutted this, not sit idly by and claimed objectors were not required
to make any proof in confirmation proceeding.
Commissioners erroneously included certain railroad right of way land, and lower court
properly excluded it.
49 Nev. 278, 284 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
right of way land, and lower court properly excluded it. Stats. 1917, 256; Stats. 1919, 102.
Apportionment was not made on flat rate per acre, but varies with different tracts.
OPINION
By the Court, Sanders, J.:
The Truckee-Carson irrigation district was formed on a federal reclamation project, known
as, and called, Newlands Project, which was among those first selected and authorized
under the act of Congress of June 17, 1902, commonly known as the Reclamation Act, and
frequently referred to as the Newlands act, because sponsored by the late United States
Senator Newlands of Nevada. 32 Stat. L. 388 (U.S. Comp. Stat. sec. 4700 et seq.).
The Truckee-Carson irrigation district includes within its boundaries about 66,000 acres of
irrigable land lying under the Newlands project, approximately 45,000 acres of which are
now under irrigation from the government's irrigation worksthe Truckee canal and the
Lahontan reservoir.
This is a special proceeding brought on petition of the Truckee-Carson irrigation district,
seeking the examination, approval, and confirmation of the proceedings for the organization
of said district; also for the confirmation and approval of its proceedings relative to the
annexation of certain lands to the district; also for the confirmation and approval of the
proceedings relative to a proposed contract by the district with the government of the United
States for the construction by the government of a general drainage system within the district;
and also for the confirmation and approval of apportionment of benefits to accrue from the
construction of said drainage works.
The immense record involves two appeals: One, the appeal of Annie McLean and others;
the other, that of the Central Pacific Railway Company, a corporation. The appeals involve
the same proceedings. They were argued together and submitted for decision, with the
request from the attorneys for the district for a speedy decision because of the great
public importance of the case and the vast pecuniary interest dependent upon the result.
49 Nev. 278, 285 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
argued together and submitted for decision, with the request from the attorneys for the district
for a speedy decision because of the great public importance of the case and the vast
pecuniary interest dependent upon the result. The importance of the case, both with reference
to the interesting legal questions and principles involved, and the vast economic and
pecuniary interest dependent upon the result, demand the most mature and deliberate
consideration of this court. The writer feels that the sensible minded will understand and
appreciate that he has been unable to keep abreast with the business of the court and render an
opinion within the time deemed reasonable by some of the interested parties. Furthermore,
the court is burdened with a record consisting of more than 3,000 pages of testimony, expert
and nonexpert, and much documentary evidence, all involving research, study, and careful
investigation. There is based upon the record a separate volume of 470 assignments of errors,
which refer to the record in such way as necessitated a review of practically all the evidence.
There have been injected into the case the long-standing differences and animosities between
the water users under the Newlands project and the United States reclamation service, which
do not concern this court in the least, but which seem to have been brought into the case to
emphasize the position taken by certain protestants that the assessment against their lands is
illegal, unfair, and without equity.
On or before the date fixed for the hearing of the petition for confirmation at least 145
interested persons answered the petition, and by their answers sought to have their lands
excluded from the district and to enjoin the district from making any apportionment of
benefits or assessments of costs affecting their property for the construction of a general
drainage system under a proposed contract between the district and the government of the
United States. After a full hearing upon the pleadings and evidence, the trial judge, Hon. C.J.
McFadden of the Ninth district, rendered a decree, which decree confirms respectively: (1)
The organization of the Truckee-Carson irrigation district in Churchill and Lyon Counties,
Nevada; {2) the annexation to said district of 12,672.6 acres of land lying under the
Newlands project; {3) the confirmation and approval of a proposed contract of the district
with the United States government to construct a drainage system for the district at a
cost not to exceed $700,000; {4) the confirmation and approval of the apportionment of
benefits to accrue to each tract or legal subdivision of irrigable land within the district
from the construction of said proposed drainage system; and {5) adjudging said proposed
contract to be valid and such as the board of directors of the district were authorized to
enter into.
49 Nev. 278, 286 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
the Truckee-Carson irrigation district in Churchill and Lyon Counties, Nevada; (2) the
annexation to said district of 12,672.6 acres of land lying under the Newlands project; (3) the
confirmation and approval of a proposed contract of the district with the United States
government to construct a drainage system for the district at a cost not to exceed $700,000;
(4) the confirmation and approval of the apportionment of benefits to accrue to each tract or
legal subdivision of irrigable land within the district from the construction of said proposed
drainage system; and (5) adjudging said proposed contract to be valid and such as the board
of directors of the district were authorized to enter into. The two appeals are prosecuted from
orders denying the respective motions of protestants for a new trial based upon the grounds of
the insufficiency of the evidence to support the decision of the court, and that the decision is
against law.
We shall consider first the appeal of Annie McLean and others, and dispose of the appeal
of the Central Pacific Railway Company in the concluding portion of this necessarily lengthy
opinion.
The applicable state law is to be found in the Revised Laws of Nevada, 1912 (sections
4723 to 4791, inclusive). This was amended by Act 1915, c. 278, p. 434, and by Act 1917, c.
150, p. 255. In 1919 the legislature enacted a complete substitute irrigation district law in
chapter 64, pp. 84 to 115. This act made many changes in the previous law, most of which,
however, are of a minor character.
The Truckee-Carson irrigation district was organized in November, 1918, under the
provisions of the prior law and amendments, but the district did not take steps to have its
organization confirmed by court order, as required by the statute. Aside from the proceedings
had for the formation of the district, all its acts and proceedings here involved were had in
attempted compliance with the provisions contained in the substituted act of 1919.
49 Nev. 278, 287 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
The applicable federal law is to be found in the reclamation act, supra; the act of Congress
of February 21, 1911, known as the Warren Act (36 Stat. L. 925, sec. 2 [U.S. Comp. St.
sec. 4739]), and the act of Congress of August 13, 1914, known as the Reclamation
Extension Act (38 Stat. L. 686 [U.S. Comp. St. sec. 4713a et seq.]).
To avoid prolixity, we have assembled the 470 assignments of error under the main
headings: (1) The power of the state and the United States to contract for purposes of
cooperation under the state and federal laws for drainage construction; (2) the legality of the
assessment, and the fairness and equity in the apportionment of benefits to accrue to
protestants' lands from the construction of the proposed drainage system; (3) the jurisdiction
of the district court to entertain the proceeding for confirmation of the organization of said
district and other matters in connection therewith.
1. Appellants in their answer assert that the court below was without jurisdiction of the
subject matter, because the Nevada irrigation district act of 1919 is unconstitutional. Courts
now dispose of this question with the statement that the constitutionality of irrigation district
laws has been so thoroughly and universally established that the subject need not be
elaborated. The several portions of the act here attacked were upheld as being constitutional.
In Re Walker River Irrigation District, 195 P. 327, 44 Nev. 321. Counsel deplore that as a
result of that decision Nevada stands alone in holding that an irrigation district is not a
municipal corporation in a strict sense, but a public corporation for municipal purposes;
thereby doing violence to our constitutional provisions relative to elections and property
qualifications of voters in irrigation districts. It is probable that Idaho, and not Nevada, stands
alone among the irrigation district states as to the applicability of constitutional provisions
relative to elections held by irrigation districts. For counsels' information we take the liberty
of citing Handbook of Irrigation District Laws {King & Burr), p. 20. We again declare the
Nevada irrigation district act of 1919 unconstitutional.
49 Nev. 278, 288 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
Irrigation District Laws (King & Burr), p. 20. We again declare the Nevada irrigation district
act of 1919 unconstitutional.
2, 3. It is contended that the court below exceeded its jurisdiction in adjudging the
Truckee-Carson irrigation district to be a legally organized and constituted irrigation district
because the proceedings for its formation were not had in compliance with the statute. We
have reviewed the 30 alleged defects in the organization proceedings, and conclude with the
trial court that the proceedings were in all respects in substantial compliance with the statute.
Therefore, we see no necessity for incumbering this opinion with answers to extended
technical arguments which in many respects misconstrue the applicable law. In one of the
cases cited by counsel it is declared that, in so far as proceedings for the organization are
concerned, a reasonably liberal rule of construction should be adopted to carry out the wise
purpose of the law. People v. Cardiff Irr. Dist., 197 P. 387, 51 Cal. App. 307. Applying this
rule to the organization under review, we are satisfied that no interested person was deprived
of a single substantial right in the matter of organization, and the trial court did not exceed its
jurisdiction in adjudging and finding the Truckee-Carson irrigation district to be a duly
organized and constituted irrigation district.
The petitioner sought the examination, approval, and confirmation of the proposed
contract between the district and the United States for the construction by the government of
a drainage system for the district. The statute of 1919 provides that a proposal to enter into
such a contract with the United States shall be voted upon and carried by a two-thirds
majority vote of the qualified electors (sections 15 and 56). The proposed contract contains
the provision that the government of the United States will not proceed with the construction
of the drainage work until the contract has been approved by the voters of the district and the
organization of the district confirmed as provided by the statute. An election was called
pursuant to the statute by the board of directors of the district for the 6th day of April, 1920,
to vote upon this question:
49 Nev. 278, 289 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
board of directors of the district for the 6th day of April, 1920, to vote upon this question:
Shall the Truckee-Carson irrigation district enter into a contract with the United States of
America for the construction by the United States of America of a general drainage system
within the said irrigation district, at a cost of not to exceed the sum of $700,000.00 without
interest; repayment of the moneys expended by the United States of America in said
construction, to be made by the Truckee-Carson irrigation district in forty (40) semiannual
installments, the first of which shall become due and payable on January 1st of the second
calendar year following the calendar year in which the Secretary of the Interior shall
announce that said expenditure has been made by the United States of America.
The contract was carried by the necessary two-thirds majority vote of the qualified
electors, to wit, 244 votes in favor of the contract and 87 votes against. The main question for
decision is: Is the contract valid and such as the board of directors of the district are
authorized to enter into. The consideration of the question calls for a review of both the state
and federal statutes.
The original act of Congress of June 17, 1902, the Reclamation Act, seems to
contemplate reclamation projects, each of which shall be complete in itself and served by
irrigation works constructed for it alone, the cost to be charged against the irrigable land
included in the project. No provision is made, and no authority is given, to connect with
private or other nongovernmental irrigation projects, or to furnish them with water or enter
into cooperative arrangements with them. Some years of experience, however, developed the
possibilities of enlarged usefulness in this direction, and Congress later made provision
therefor. This was done by the act of February 21, 1911, the Warren Act. 32 Op. Attys.
Gen. p. 43. This act comprises three sections, the second of which provides:
That in carrying out the provisions of said Reclamation Act and acts amendatory thereof
or supplementary thereto, the Secretary of the Interior is authorized, upon such terms as
may be agreed upon, to cooperate with irrigation districts, water users associations,
corporations, entrymen or water users for the construction or use of such reservoirs,
canals, or ditches as may be advantageously used by the government and irrigation
districts, water users associations, corporations, entrymen or water users for impounding,
delivering and carrying water for irrigation purposes.
49 Nev. 278, 290 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
thereto, the Secretary of the Interior is authorized, upon such terms as may be agreed upon, to
cooperate with irrigation districts, water users associations, corporations, entrymen or water
users for the construction or use of such reservoirs, canals, or ditches as may be
advantageously used by the government and irrigation districts, water users associations,
corporations, entrymen or water users for impounding, delivering and carrying water for
irrigation purposes. * * * U.S. Comp. St. sec. 4739.
The legal foundation and authority for the government to enter into the contract in
question must be sought in this legislation. Since the enactment of the Warren act, the policy
has been pursued by the reclamation service of securing amendments to state irrigation laws
providing for contractual relations between irrigation districts and the United States. The
result has been that practically all of the states that have irrigation district laws have
authorized districts to cooperate with the United States, and that districts have been organized
on many of the federal reclamation projects. Such projects are to be found in Idaho, Nebraska,
New Mexico, North Dakota, Oregon, Texas, Utah, Washington, and Newlands
(Truckee-Carson), Nevada. The project lands organized as irrigation districts were formed
largely with the motive of facilitating cooperation with the United States in drainage
construction.
The provisions for cooperation with the United States are taken from the individual
sections in the previous law, and are combined in consecutive sections in the Statutes of
1919, sections 54 to 65, inclusive. Section 54 of the act provides as follows:
In addition to the powers with which irrigation districts are or may be vested under the
laws of the state, irrigation districts shall have the following powers: To cooperate and
contract with the United States under the federal reclamation act of June 17, 1902, and all
acts amendatory thereof or supplementary thereto, or any other act of Congress heretofore
or hereafter enacted authorizing or permitting such cooperation, and to cooperate and
contract with the State of Nevada, * * * or for the assumption as principal or guarantor of
indebtedness to the United States on account of district lands or for the collection of
moneys due to the United States as fiscal agents or otherwise."
49 Nev. 278, 291 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
other act of Congress heretofore or hereafter enacted authorizing or permitting such
cooperation, and to cooperate and contract with the State of Nevada, * * * or for the
assumption as principal or guarantor of indebtedness to the United States on account of
district lands or for the collection of moneys due to the United States as fiscal agents or
otherwise.
The sections following make provisions for the carrying out of the enlarged powers
conferred upon the board of directors of the district by section 54. The legal foundation and
authority for the contract in question, in so far as the State of Nevada is concerned, must be
sought in section 54. The clause of the section, or for the assumption as principal or
guarantor of indebtedness to the United States on account of district lands, is the clause
under which irrigation districts formed upon federal projects have made contracts.
The Supreme Court of Idaho has held in several cases that boards of directors of irrigation
districts are authorized, upon compliance with sections 2396-2401, Revised Codes, to
contract with the United States for the construction, conjunctively, of a drainage system for
the purpose of properly draining water-logged land within the jurisdiction of such districts,
and that the secretary of the interior, under the acts of Congress above referred to, is
authorized to contract with such districts for the joint construction of a proper drainage
system. Nampa & Meridian Irr. Dist. v. Petrie, 153 P. 425, 28 Idaho, 227; Hillcrest Irr. Dist.
v. Brose, 133 P. 663, 24 Idaho, 376; Pioneer Irr. Dist. v. Stone, 130 P. 382, 23 Idaho, 344. We
note that the provisions of the Idaho Codes have practically been incorporated in the Nevada
statutes.
4. We find nothing in either the state or federal statutes to prevent the making of contracts
for cooperation with the United States under the reclamation and Warren acts, and our
conclusion is that the proposed contract between the Truckee-Carson irrigation district and
the United States is validated both by the state and federal laws.
49 Nev. 278, 292 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
and federal laws. In our preliminary examination into the law of this case we were concerned
as to whether the Warren Act was sufficiently elastic to permit without additional
legislation an irrigation district to be formed at the instance of the reclamation service on a
federal project for the purpose of drainage construction, but upon further research we have
found that the most prominent relations between irrigation districts and the federal
government have been with the reclamation service. Districts which have had such dealings
seem to be subdivided into two classes: First, districts which have contracted with the United
States, under the provisions of the Warren act, for the construction of irrigation or drainage
works or both; second, districts formed at the instance of the reclamation service on
reclamation projects, as substitutes for water users associations, for the assumption as
principal or guarantor of indebtedness of project lands to the United States with or without
bond. Section 54, c. 64, Statutes of Nevada 1919; U.S. Department of Agriculture, Bulletin
No. 1177, date September 22, 1923.
5. We are not concerned with the question raised as to the construction of the proposed
contract or its enforceability in its present form. The question put to the lower court was
whether the contract was valid and such as the board of directors of the district were
authorized to enter into.
The next question for determination is whether or not the apportionment for benefits and
assessments can be sustained. Protestants contend that their lands are not in need of drainage,
and that their irrigation does not contribute water which must be carried off or away from the
lower lands; that the lands owned and held by protestants are by natural and physical
conditions so located and situated as to preclude the possibility of benefits from the
construction of the proposed drainage system.
Section 17 of the statute contains this declaration:
Where drainage works are to be constructed benefits may be apportioned to higher
lands not then actually requiring drainage by reason of the fact that their irrigation
contributes water which must be carried off or away from the lower lands."
49 Nev. 278, 293 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
may be apportioned to higher lands not then actually requiring drainage by reason of the fact
that their irrigation contributes water which must be carried off or away from the lower
lands.
6. A similar provision is to be found in the statute of Idaho, as amended (Laws 1915, c. 42,
p. 123). The Supreme Court of Idaho has upheld the provision. In Re Drainage District No. 1,
161 P. 321, 29 Idaho, 393; Burt et al. v. Farmers' Co-op. Irr. Co., 168 P. 1078, 30 Idaho, 752.
The language of our statute is a sufficient basis for a declaration from this court in harmony
with the Idaho case, which holds:
We have no doubt of the power of the legislature to provide that lands which by reason of
artificial irrigation contribute by seepage and saturation to the swampy condition of lower
lands shall contribute their just proportion of the cost of the construction of drainage works
for the reclamation of such lower lands.
The legislative declaration that highlands may be assessed for drainage of lowlands shows
that the lawmaking body considered that the principle of assessments based on benefits called
for the recognition of the physical unity of the drainage area, and the partial responsibility of
the owners of higher lands for the drainage difficulties.
It is practically conceded that the lands irrigated by the Truckee canal laterals are the
highlands and the lands irrigated by the Lahontan reservoir are the lowlands. Undoubtedly the
proof shows that the irrigable lands in the district are in urgent need of drainage. The voters
of the district have said so by their votes; the reclamation service has so declared through its
drainage engineers; expert drainage engineers have so testified; and the secretary of the
interior has approved as to form a contract for the expenditure of $700,000 of public moneys,
subject to the appropriation by Congress, for the construction of a drainage system for the
district. In this situation it would be the height of judicial usurpationthe worst kind of
usurpationfor this court to say that the district is not in need of drainage.
49 Nev. 278, 294 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
for this court to say that the district is not in need of drainage. We have carefully considered
the testimony of protestants who protest their unwillingness to have their project lands under
the guise of an irrigation district organization held responsible for an indebtedness created at
the instance of the reclamation service solely for the benefit of the Newlands reclamation
project, and not contemplated by their original settlement under the project. These farmers are
of recognized intelligence, industry, and integrity, and they gave such testimony with respect
to the use of water upon their lands as makes it appear that they fully appreciate the menace
of the rise of ground water, and their own counsel concede that the question of drainage is
one which calls for expert testimony. Speaking generally, the problems of seepage and
percolating waters, and the concomitant evil, alkali, are among the most difficult in
engineering and local operations, as well as in law, on account of the lack of exact knowledge
of the causes and effects which influence the course of water beneath the surface of the
ground. Handbook of Irrigation District Laws, p. 32. The evidence does not show that
protestants' lands are now actually in need of drainage, but, in view of seepage, alkali, the
rapid rise of ground water, and the urgent necessity of drainage for the district, it may be that
the time is not far distant when they will be in need of drainage. Where large areas are being
irrigated, and where the ground water must travel for a considerable distance through sand,
clay, silt, gravel, or mixtures of these, before finding any natural outlet, a general rise in the
water plane must occur. Field investigations and studies of the rise of ground water in the
case at bar lead to the conclusion that the need for drainage is due to the subsoil formation of
more or less impervious material on which irrigation water accumulates or which hinders the
movement of underground waters. Report of Bernard A. Etcheverry, drainage engineer, a
witness in this case. The rapid rise of ground water is shown in the crop reports made to the
reclamation service.
49 Nev. 278, 295 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
to the reclamation service. In the year 1917 there were 2,166 acres under the Newlands
project rendered unfit for cultivation by seepage; in 1918, 2,248 acres; in 1919, 2,847 acres;
in 1920; 3,411 acres. Mr. Etcheverry testified that in 1919 the seepage from the main Truckee
canal and laterals and from the north and south Carson river divisions totaled 175,992 acre
feet, which, expressed otherwise, in cubic contents, signifies 175,000 acres of land covered
with water one foot deep. This estimate does not include 26,950 acre feet of seepage from the
Lahontan reservoir in the year 1919 or the seepage incident to 134,000 acre feet of water
applied to the irrigation of 44,324 acres of land in 1919. The testimony of the expert
witnesses, taken in connection with the reports of drainage examinations, shows that the
irrigation of protestants' land does contribute water which must be carried off or away from
the lower land of the district. The actual condition of the other lands of the district refutes the
theory of counsel for protestants that the natural and physical condition of protestants' lands
precludes the possibility of benefits from the construction of the drainage system.
7, 8. It is contended that the assessment for drainage in this case is a flat rate of $10.15 per
acre on all irrigable lands in the district contrary to the sections of the statute governing the
apportionment of benefits and assessments which provide that the assessment must be made
in accordance with the benefits which will accrue to each of the tracts or subdivisions of land
from the construction of the drainage system. We agree with counsel that an assessment for
drainage, based on a flat rate, and not upon actual benefits accruing to the land, is invalid.
Nampa & Meridian Irr. Dist. v. Petrie, 223 P. 531, 38 Idaho, 529. But on rehearing in that
case the court states:
So, also, if the benefits derived by different tracts from the construction of irrigation or
drainage works are equal, the assessment may be the same.
We are of the opinion that the board of directors of the district in apportioning the
benefits considered that the benefits derived by the irrigable lands from the construction
of the drainage system were equal.
49 Nev. 278, 296 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
district in apportioning the benefits considered that the benefits derived by the irrigable lands
from the construction of the drainage system were equal.
9. It is contended that the Truckee-Carson irrigation district was organized as an irrigation
district; therefore this court has no authority to make a drainage district out of an irrigation
district. Our answer to this contention is found in the section of the statute which provides
that drainage works may be covered by contract with the United States upon such projects as
are assisted or undertaken by the federal government. Section 54 of the statute is equivalent to
a legislative determination that an irrigation district should and may be used for drainage
purposes to forestall or remedy unfortunate conditions; in other words, to protect the
irrigation project from suicide or natural death.
10. It is contended that the court erred in confirming by its decree a stipulation entered into
at bar between the attorneys for the irrigation district and the Central Pacific Railway
Company excluding the company's right of way lands from the district. We do not think the
court exceeded its jurisdiction, power, or authority in confirming the stipulation.
This brings us to the consideration of the separate appeal of the Central Pacific Railway
Company. Pending the organization proceedings before the board of county commissioners of
Churchill County the Central Pacific Railway Company petitioned to have included in the
district 1,587 acres of its contiguous land. As other lands in the district, the soil and
topographic conditions have been and are limiting factors in the improvement of these lands.
They are low-lying lands, containing a high percentage of alkali, and, like other areas in the
district, are sandy, porous, of varying composition, rough, and easily wind blown. The
roughness and irregularity make leveling for irrigation expensive and the lands hard to
subdue. A statute designed to assist the irrigation farmers under the Newlands project in
leveling their lands was once before this court for review.
49 Nev. 278, 297 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
review. State v. Churchill County, 185 P. 459, 43 Nev. 290.
11. In this instance the board of directors of the district levied an assessment of from $10.15
per acre down to $4.91 per acre against the lands in question to pay the cost of the proposed
drainage system. The company protested the assessment and the board appointed a committee
to make an investigation of the lands, and subsequently, by resolution, reduced the prior
apportionment of benefits to $4.29 per acre. The company now contends that the entire
acreage, except 126 acres, is not susceptible of irrigation, because of the high alkali content
and exceeding roughness, and that the lands cannot with profit be subdued, and any
assessment of benefits to accrue from the construction of a drainage system cannot possibly
result in benefit to the lands. Furthermore, it is contended that the board of directors applied a
different rule of assessment to the company's lands from that applied to other lands, and that
the assessment is arbitrary and discriminatory, and, also, that the lands are without a water
right. We do not understand upon what theory it can be successfully asserted that the
apportionment of benefits denies the company the equal protection of the laws or deprives it
of due process of law.
12-16. Counsel insist that the proof shows that the lands, with the exception of 126 acres
thereof, are not susceptible of irrigation, and in support of this contention rely upon the
testimony of the company's engineer and the testimony of one of the protestants in this case.
We concede that, if we were dealing with a question of the cost and maintenance of an
irrigation system, and the company's lands were charged with an assessment for its
maintenance and protection, when in fact the land was not, and could not be, benefited by
irrigation, we should decide that a legal fraud would result from the assessment. Northern
Pacific Railway Company v. Walla Walla County, 116 Wash. 684, 200 P. 586. But, on the
other hand, the owner of irrigable land within an irrigation district must respond to
assessments where water is made available for his use, though the water is not used.
49 Nev. 278, 298 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
an irrigation district must respond to assessments where water is made available for his use,
though the water is not used. Otis Orchards Co. v. Otis Orchards Irr. Dist. No. 1 et. al., 215 P.
23, 124 Wash, 510. It is conceded or must be conceded, that the question of whether land is
susceptible of irrigation or not is one of fact, and likewise is a question of benefits. We might
dispose of counsels' argument by saying that the evidence bearing upon the question of the
irrigability of the land in question was submitted to the trial court upon evidence in which
there is substantial conflict, and that under the rule we are in no position to disturb the
assessment. But, as pointed out in the opinion on rehearing in Nampa & Meridian Irr. Dist. v.
Petrie, 223 P. 531, 38 Idaho, 529, where the assessment is for the drainage project, it must be
based on benefits derived from it, and not on benefits derived from irrigation. Therefore,
whether the land in question was susceptible of irrigation or not is not controlling. We are not
called upon in this case to determine just what may be considered in determining whether or
not land benefits from the consideration of a drainage project. The rule is that an assessment
for a drainage project based upon benefits must, like an assessment for any other public
improvement, be based upon benefits, immediately accruing, or which will clearly accrue,
from the construction of the work. As a general rule, the benefit contemplated by the statute
does result in an increase in the value of the land. There may be some cases where there is an
actual benefit, though it is not possible to prove an actual increase in value. It is sufficient if
an actual benefit accrues. Nampa & Meridian Irr. Dist. v. Petrie, supra, on rehearing. As to
the question of benefits the trial court was the exclusive judge, and, not having misapplied
any principle in arriving at the confirmation of the apportionment of benefits to accrue to the
company's land from the construction of the drainage system, upon conflicting evidence we
are not in position to disturb the court's findings and grant the company a new trial.
49 Nev. 278, 299 (1926) Truckee-Carson Irr. Dist. v. Central Pacific Railway Co.
The respective orders denying protestants' motions for a new trial are affirmed.
On Petition for Rehearing
July 30, 1926.
Per Curiam:
Rehearing denied.
____________
49 Nev. 299, 299 (1926) Jones v. Edwards
JONES v. EDWARDS
No. 2707
April 7, 1926. 245 P. 292.
1. Husband and WifeHusband Held Authorized to Apply Amount Due Wife from Boarder
as Payment on Note Made by Him, where Income Was Community Property.
Amount due from plaintiff for board and lodging to defendant's wife, who owned house, which was
also home of husband and children, and did all work, held community property, which husband could
have applied as payment on note made by him, since Rev. Laws, secs. 2167, 2168, and 2169, as amended
by Stats. 1917, c. 77, limiting husband's power over such property, are inapplicable, and there was no
evidence of gift as contemplated by Rev. Laws, sec. 2169.
2. Husband and Wife.
Loan to husband after marriage is presumed to be loan to community.
3. Husband and Wife.
All property acquired after marriage is presumed to be community property and burden of proof is on
person claiming to contrary.
4. Husband and WifeCourt Held Not Required by Statute to Order that Wife Be Made
Party to Action against Husband on Note, where Board Bill Due Her, which Was
Community Property, Had Been Applied as Payment Thereon.
Where payee of note showed that amount he owed maker's wife for board and lodging was applied as
payment thereon, court held not required, under Rev. Laws, sec. 5008, to order that she be made party to
action on note, where amount due from plaintiff was shown to be community property, since wife is in
legal effect party to every action involving community property.
5. Husband and Wife.
Husband is deemed sole owner of community property, under statute, for purposes of defending
action involving it.
49 Nev. 299, 300 (1926) Jones v. Edwards
6. Interest.
Judgment on note bearing interest at 5 1/2 per cent, cannot bear higher rate, in view of 3 Rev. Laws,
sec. 2500.
See 31 C.J. sec. 1107, p. 27, n. 2; sec. 1142, p. 49, n. 3; p. 50, n. 11; sec. 1144, p. 53, n. 47; sec. 1175, p. 82, n.
63; sec. 1233, p. 148, n. 86 (new); sec. 1234, p. 148, n. 87; sec. 1246, p. 152, n. 9, 10; sec. 1247, p. 153,
n. 38 (new); sec. 1261, p. 156, n. 36; 4 C.J. sec. 2855, p. 883, n. 33; (6) 33 C.J. sec. 114, p. 229, n. 93,
94; sec. 137, p. 1205, n. 61.
Appeal from Second Judicial District Court, Washoe County; Geo A. Bartlett, Judge.
Action by Robert Jones against Albert W. Edwards. Judgment for plaintiff, and defendant
appeals. Modified and affirmed. Rehearing denied.
Mack & Green and A.F. Lasher, for Appellant:
Court erred in failing to order wife to be made party when it appeared she claimed money
due for services as separate property. Rev. Laws, 5008, which is mandatory. Robinson v.
Kind, 23 Nev. 330; Bliss v. Grayson, 24 Nev. 422.
Judgment is binding only on parties to action or those in privity with them. Ahlers v. Thomas,
24 Nev. 407; Vickers v. Vickers, 45 Nev. 274.
Wife is not in privity with husband as to rights acquired before institution of suit against him.
34 C.J. 1020.
It was impossible for lower court to find for plaintiff without passing on claim of wife who
was not party to action.
In absence of wife's agreement her separate property will not as rule be liable for
community debts. 31 C.J. 116.
Mrs. Edwards was not shown to have performed services for charity. Law implies promise
to pay where one allows another to work for him under circumstances in which no reasonable
person would expect it was to be done for nothing. 13 C.J. 274.
Huskey & Souter, for Respondent:
Defendant filed four answers. In first, second and third, he admitted nothing had been paid
on note. In fourth he denied that no part had been paid except $330.
49 Nev. 299, 301 (1926) Jones v. Edwards
fourth he denied that no part had been paid except $330. In first and second answers
defendant set up counterclaim, admitted he had furnished board and lodging and sought to
recover, not $10 but $40 per week therefor. In third and fourth answers he omitted
counterclaim and plead statute of limitations.
At trial another case, that of wife and husband against plaintiff, was introduced in
evidence, wherein they jointly sought to recover $50 per week for same services. Court
wisely preferred to believe plaintiff.
When case was tried by court without jury, judgment shall not be reversed for want of or
defective finding, unless, etc. Rev. Laws, 5345.
Failure to pay interest as provided terminated, stated rate and legal rate became thenceforth
operative. 3 Rev. Laws, p. 2855.
Judgment extinguished instrument by merger. 8 C.J. 621.
Assumptions necessary to bring case within Rev. Laws 5008that wife was not party in
court below and that it appeared she had material outstanding interest in subject matter
recognized by law and which would be affected by judgment, are lacking.
Husband is proper party in suit upon chose in action which is common property. Wife is
not necessary party. Crow v. Vansickle, 6 Nev. 146.
It is not necessary to prove property acquired during coverture is community. Burden is on
opposite party. If acquired entirely by efforts of husband, though wife does not lift finger in
aid or though she is burden and detriment, still property is common. Lake v. Bender, 18 Nev.
361. Same rule applies to wife.
In Youngworth v. Jewell, 15 Nev. 45, where wife actually complied with sole traders' act,
but husband intermingled his skill and industry with hers without agreement for
compensation, Hawley, J., held property paid for with funds so raised was common and liable
for husband's debts.
In jurisdictions where wife is not necessary party in actions against husband affecting
community real property, judgment against husband is binding against him, wife, and
community estate.
49 Nev. 299, 302 (1926) Jones v. Edwards
property, judgment against husband is binding against him, wife, and community estate. 31
C.J. 160.
OPINION
By the Court, Ducker, J.:
Action on a promissory note. The note, a copy of which is set out in the complaint, was
executed by appellant in favor of respondent on March 1, 1917, for the principal sum of
$1,000. It is alleged in the complaint that no part of the note, either principal or interest, has
been paid, except $330, which was paid on account of said note as follows: March 1, 1920,
$10; November 1, 1920, to June 5, 1921, at the rate of $10 each and every week, $320; and
that said sums so paid have been credited on account of the principal and interest of said note.
In the third amended answer the execution and delivery of the note were admitted and all
other allegations of the complaint denied. For a separate answer and defense the statue of
limitations was pleaded. The trial court found said allegations of the complaint to be true, and
rendered judgment for respondent.
This appeal is from the judgment and order denying appellant's motion for a new trial.
In order to maintain the action against the alleged bar of the statute of limitations, it was
necessary for respondent to prove the payments made on the note as alleged in his complaint.
It appeared from the evidence that respondent had boarded and roomed at appellant's home in
Reno for a week beginning March 1, 1920, and also from November 1, 1920, to June 5, 1921.
In regard to the payments respondent testified that some time in May, 1921, at appellant's
home, the latter agreed with him that his board and lodging during the times mentioned was
to be charged for at the rate of $10 per week, and to be credited on the note. Appellant denied
that any such agreement was made, and contends that the evidence shows that the amount due
for respondent's board was the earnings of appellant's wife, and, as such, is her separate
property. He contends that, when this appeared in evidence, it became the duty of the
court on its own motion to order appellant's wife, Emily Gladys Edwards, to be made a
party, and that the failure of the court to do so constitutes jurisdictional error.
49 Nev. 299, 303 (1926) Jones v. Edwards
when this appeared in evidence, it became the duty of the court on its own motion to order
appellant's wife, Emily Gladys Edwards, to be made a party, and that the failure of the court
to do so constitutes jurisdictional error. Briefly summarized, the testimony and evidence
bearing on this claim is as follows: Respondent roomed and boarded at the home of appellant
and his wife for for several years before the times mentioned, and had always paid his bill for
the same to Mrs. Edwards; never to appellant. Respondent applied to her to be received as a
roomer and boarder. The home where respondent boarded and lodged was the property of
Mrs. Edwards. Respondent was ill during the time in question, and Mrs. Edwards took care of
him. She cooked his food. She had his washing done with her own, and attended to the
mending of his clothes. She attended to his room, except at times when she had a maid.
Appellant wanted respondent to be removed to a hospital, but Mrs. Edwards would not permit
it.
On the trial of the case, which commenced December 3, 1924, respondent introduced in
evidence a complaint filed November 28, 1924, in which appellant and his wife, Emily
Gladys Edwards, are plaintiffs, and respondent is defendant. In that complaint the claim
which respondent seeks in the instant action to apply as credits on the promissory note is set
forth, including claims for care and nursing as a cause of action in favor or Mrs. Edwards
against respondent, and judgment is prayed for her by her against him.
Respondent also introduced in evidence appellant's answer, and the first amended answer
in the instant case verified by him, in each of which a counterclaim is set forth by appellant
and his wife against respondent for board and lodging, nursing and care, at appellant's house
from the 1st day of November, 1920, to and including June 5, 1921.
Explanatory of his position taken in the counterclaims of the answer and first amended
answer that the respondent's board and lodging constituted a debt due to him, appellant
testified as follows:
A. I presumed that I was entitled to the same as Mrs.
49 Nev. 299, 304 (1926) Jones v. Edwards
Mrs. Edwards. Whatever Mrs. Edwards done was for me, but she took the opposite stand, and
considered it for herself, not for me.
Q. Your idea that everything that belonged to the wife belonged to you? A. Yes.
Q. You felt that way? A. Yes, certainly.
Q. Until you A. Until I found out different.
He testified also that during the time in question he had no business of any kind or
character with respondent with reference to his board and lodging. He testified, further, that
the place where respondent boarded and roomed belonged to Mrs. Edwards, but admitted that
it was his home, where he had lived for a number of years, and the place from which he
registered for the purpose of voting.
The claim that the evidence disclosed such an interest in the amounts owed by respondent
sought to be applied as payments on the note as made it mandatory upon the court to make
her a party is made under section 5008 of the Revised Laws of Nevada, which in part reads:
The court may determine any controversy between parties before it, when it can be done
without prejudice to the rights of others, or by saving their rights; but when a complete
determination of the controversy cannot be had without the presence of other parties, the
court must then order them to be brought in. * * *
1. Did the court err in not making Mrs. Edwards a party? The determination of the
question is dependent upon whether the property concerning which the agreement was made
between respondent and appellant was community property or the separate property of the
wife, and, if community property, whether it was subject to any exceptions to the provisions
of law giving the husband the absolute power of disposition thereof. That such an agreement
was actually made is settled by the finding of the court on the conflicting testimony of
respondent and appellant. Section 2160 of the Revised Laws, as amended by Stats. 1917, p.
121, reads:
The husband shall have the entire management and control of the community property,
with the like absolute power of disposition thereof, except as hereinafter provided, as of his
own separate estate; provided, that no deed of conveyance or mortgage of a homestead
as now defined by law, regardless of whether a declaration thereof has been filed or not,
shall be valid for any purpose whatever unless both the husband and wife execute and
acknowledge the same as now provided by law for the conveyance of real estate;
provided further, that the wife shall have the entire management and control of the
earnings and accumulation of herself and her minor children living with her, with the like
absolute power of disposition thereof, when said earnings and accumulations are used for
the care and maintenance of the family."
49 Nev. 299, 305 (1926) Jones v. Edwards
provided, as of his own separate estate; provided, that no deed of conveyance or mortgage of
a homestead as now defined by law, regardless of whether a declaration thereof has been filed
or not, shall be valid for any purpose whatever unless both the husband and wife execute and
acknowledge the same as now provided by law for the conveyance of real estate; provided
further, that the wife shall have the entire management and control of the earnings and
accumulation of herself and her minor children living with her, with the like absolute power
of disposition thereof, when said earnings and accumulations are used for the care and
maintenance of the family.
The first proviso of the foregoing section is obviously inapplicable in his case, and there is
no evidence tending to show that the property sought to be applied as payments on the note
was subject to the sole disposition of the wife as contemplated by the second proviso. Section
2167 of the Revised Laws provides:
The earnings of the wife are not liable for the debts of the husband.
2. This section is likewise inapplicable. If it were conceded that the amount due for
respondent's board and lodging was the earnings of the wife, there is nothing to show that it
was applied to the payment of the debt of the husband. The loan evidenced by the note was
made after marriage, and, nothing appearing to the contrary, it must be presumed to be a loan
to the community. 5 R.C.L. 857, 858. Was the property then community property subject to
the disposition of the husband? As is seen from the evidence stated, respondent's board and
lodging was furnished after appellant's marriage. Under the existing statutory law all property,
with certain exceptions, acquired after marriage is community property. Property acquired
afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is
among the exceptions. It is the separate property of the spouse so acquiring it. The other
exceptions are as follows:
The earnings and accumulations of the wife and of her minor children, living with her,
or in her custody, while she is living separate from her husband, are the separate property
of the wife."
49 Nev. 299, 306 (1926) Jones v. Edwards
her minor children, living with her, or in her custody, while she is living separate from her
husband, are the separate property of the wife. Section 2168, Rev. Laws.
When the husband has allowed the wife to appropriate to her own use her earnings, the
same, with the issue and profits thereof, is deemed a gift from him to her, and is, with such
issues and profits, her separate property. Section 2169, Rev. Laws.
3. Appellant and his wife and their children were living together during all of the times
mentioned; consequently section 2168 has no application. All property acquired after
marriage is presumed to be community property, and the burden of proof is upon the person
claiming to the contrary. Lake v. Bender, 4 P. 711, 7 P. 74, 18 Nev. 361; State v. Langan, 105
P. 568, 32 Nev. 176. As said in the first case above cited:
It is conceded that property acquired during coverture presumably belongs to the
community. The burden is on the defendant in this case to overthrow this presumption, by
proof sufficiently clear and satisfactory to convince the court and jury of the correctness of his
claim, as in other cases.
Applying this rule to the evidence, the claim of a gift from appellant to his wife is not
sustained. In fact, there is no evidence of a gift as contemplated by section 2169. No
agreement of this kind appears in the record. True, respondent formerly paid his bills to Mrs.
Edwards, but it is nowhere indicated that the moneys so received by her were appropriated to
her use. It also appears that she did all the work in connection with the care and maintenance
of respondent as a boarder and roomer, except at times when a maid was employed, and also
cared for him in his sickness, but this, standing alone, has no bearing on the question of a gift.
And, further, the counterclaims in the answers, and appellant's explanation thereof as
heretofore stated, furnish strong evidence of the fact that there was no intention on his part of
allowing his wife to appropriate the amount to be paid by respondent for his board and
lodgings to her own use.
49 Nev. 299, 307 (1926) Jones v. Edwards
paid by respondent for his board and lodgings to her own use.
4. Stress is laid on the fact that the house where respondent boarded and roomed belonged
to Mrs. Edwards, having been acquired by her before marriage. This would not help
appellant, unless it also appeared that the moneys due for respondent's board and lodging
were the rents, issues of such separate property, which under the statute would also become
her separate property. We do not think this is established under the evidence. Mrs. Edwards
was not running a hotel on her own account and using the profits for such purpose. The house
was the home of appellant and his wife and their children, and the keeping of respondent was
merely incidental. Its ordinary use was as a home, and, in the absence of evidence to the
contrary, it must be presumed, under the rule heretofore stated, that the necessaries for the
main and incidental purpose were supplied from the community funds. Any profits flowing
therefrom would belong to the community. Our opinion, therefore, is that the lower court was
justified in concluding from the evidence that respondent's indebtedness for board and
lodging was community property, which appellant had the right, under the statute, to have
applied as payment on the note. Being community property, it was not incumbent on the court
under section 5008 to have made an order that Mrs. Edwards be brought in as a party to the
action.
5. As the suit involved community property, her husband was, under our statute, deemed
the sole owner of such property for purposes of defending such action. Referring to the
provision of our law which gives the husband the entire management and control of the
community property, with the like absolute power of disposition as of his own separate estate,
this court, in Crow v. Van Sickle, 6 Nev. 146, said:
By virtue of it, the husband isfor the purpose of bringing suits upon choses in action
which are common property, and so far as the disposition of such property is concernedthe
sole owner, and he alone is the proper party to bring actions upon them."
49 Nev. 299, 308 (1926) Jones v. Edwards
is concernedthe sole owner, and he alone is the proper party to bring actions upon them.
If he is the proper party to bring actions upon community property, he is certainly the
proper party to defend actions involving it.
In Malmstrom v. People's Ditch Co., 107 P. 98, 32 Nev. 246, this court held that, where
title to land purchased with money earned after marriage is taken in the name of the wife, the
land is community property under the husband's control, so that an action for injury thereto
may be maintained by him alone.
In Jordan v. Moore, 65 Tex. 366, the court said:
The husband, as the representative of the community, under the statute, may alone sue for
and collect any claim due to the community, and a judgment in his favor, or against him, will
bind the wife, as to such estate, as fully as she could be bound were she a party to the action.
In Ballenger on Community Property, in section 176, the author states what we conceive to
be the true rule deducible from the cases under a statute making the husband the
representative of the community:
In suits involving community interests, the husband, as the representative of the
community, may alone sue for and collect claims due the community, and a judgment in his
favor or against him will bind the wife as to such estate as fully as she could be bound were
she a party to the action, unless in cases in which the right of the wife to assert claims to
community property is recognized for her own protection. The wife is, however, in legal
effect a party to every action involving the community, and a judgment against the husband
alone, touching community property, is conclusive as to the title to the property upon both
husband and wife. The authorities are uniform in holding that, in actions involving the rights
and liabilities of the common property, the husband is the proper person to prosecute and
defend the interests of the marital partnership, and that she is neither a necessary nor a proper
party thereto.
We have no quarrel with the authorities cited by appellant to the effect that, under the
provisions of section 500S, when it appears that one not a party is a necessary party, it is
the duty of the court of its own accord to order such a one to be brought in.
49 Nev. 299, 309 (1926) Jones v. Edwards
appellant to the effect that, under the provisions of section 5008, when it appears that one not
a party is a necessary party, it is the duty of the court of its own accord to order such a one to
be brought in. But by virtue of the rule involved it appears from the evidence that Mrs.
Edwards was in legal effect a party to the action, and no duty was imposed upon the court by
that section. Moreover, had the court ultimately concluded that the compensation due was her
separate property, her presence as a party would not have been necessary to a complete
determination of the controversy. The plaintiff would simply have failed in his action.
6. The court entered judgment in favor of respondent for the unpaid principal and interest,
with interest thereon at 7 per cent per annum, and this is assigned as error. It is claimed that,
as the note bore interest at 5 1/2 per cent per annum, the judgment thereon must bear the same
rate of interest. This contention is well taken. Section 2500 of 3 Rev. Laws in part provides:
Parties may agree for the payment of any rate of interest on money due, or to become due,
on any contract, not exceeding, however, the rate of twelve per cent (12%) per annum. Any
judgment rendered on any such contract shall conform thereto, and shall bear the interest
agreed upon by the parties, and which shall be specified in the judgment.
By virtue of this plain provision the judgment rendered should bear interest at the rate of 5
1/2 per cent per annum, the rate of interest expressly agreed upon in the note. To this extent
the judgment is ordered modified, and in all other respects affirmed.
On Petition for Rehearing
July 30, 1926.
Per Curiam:
Rehearing denied.
____________
49 Nev. 310, 310 (1926) Siebert v. Smith
SIEBERT v. SMITH
No. 2671
April 12, 1926. 244 P. 1012.
On Petition for Rehearing
1. Appeal and ErrorDefendant, on Appeal, May Not Make a Contention Opposite to that
Made by Him on Demurrer in the Lower Court and Sustained by It.
Defendant, having demurred to the first cause of action on the ground that it did not plead a valid
contract, and demurrer having been sustained, may not, on appeal from judgment for plaintiff on the
second cause of action, on quantum meruit, shift his position and claim that plaintiff had a valid contract.
See 4 C.J. sec. 2609, p. 701, n. 49.
On petition for rehearing. Rehearing denied.
For opinion on merits, see 49 Nev. 120.
William M. Kearney, for Petitioner:
Recovery cannot be had on quantum meruit where express contract exists. Perkins v. Hart,
11 Wheat. 463.
Party must perform contract unless performance is made impossible through no fault of
his. Himld v. Jones (U.S.), 17 L. Ed. 762.
If claim is on quantum meruit and proof shows express contract, there is fatal variance.
Edinger v. Sigwart, 110 P. 521.
Plaintiff must recover on cause alleged and not upon some other developed in proof.
Mondran v. Goux, 51 Cal. 151.
If agreement is to be carried out in some way other than by payment of money, general rule
is it must be declared on specially. Eastland v. Sparks, 22 Ala. 607.
Proposition of law once decided by appellate court is not open to reconsideration upon
subsequent appeal or writ of error. Bouvier's Law Dictionary, The Law of the Case;
Messinger v. Anderson (U.S.), 56 L. Ed. 1152.
Ruling on demurrer is not such final adjudication that court may not reconsider its action
and enter contrary order. Dowie v. Priddle, 75 N.E. 243.
49 Nev. 310, 311 (1926) Siebert v. Smith
John D. Hoyt, for Appellant:
Petitioner urges this court to place construction upon pleadings and facts diametrically
opposite to his position in court below. He seeks to establish premise, which neither facts nor
law of case as established by ruling on demurrer justifies, that appellant proved valid express
contract and that court below recognized it as such, ignoring fact that lower court held it not
valid and express, but indefinite, uncertain and unenforceable. Whether right or wrong, court
should and did adhere to ruling and follow it to logical conclusion.
OPINION
Per Curiam:
Counsel for respondent, in his petition for a rehearing, says:
In the case at bar, if I am not mistaken, Mr. Siebert, the appellant, had a valid contract by
which he could have received the stock which, according to his complaint, was to be
delivered to him upon the fulfillment of the conditions specified in the alleged contract.
The first cause of action pleaded in the complaint was upon the alleged contract. This
cause of action was demurred to by respondent upon the ground that it did not state facts
sufficient to constitute a cause of action, in that it did not plead a binding contract. The
demurrer was sustained. It seems that respondent seeks to shift his position, in that he now
says the plaintiff had a valid contract. This he cannot do. This court, in State ex rel. v.
Commissioners of Lander County, 35 P. 300, 22 Nev. 71, quoted from Bigelow on Estoppel,
as follows:
It may accordingly be laid down as a broad proposition that one who has taken a
particular position in the course of a litigation must, while that position remains unretracted,
act consistently with it.
See Wheeler v. Hurley, 49 Nev. 70.
After a careful consideration of the petition, we fail to find any justification for the granting
of a rehearing.
Petition for a rehearing is hereby denied.
49 Nev. 310, 312 (1926) Siebert v. Smith
On Costs
May 19, 1926. 246 P. 1.
1. Costs.
Cost bill, filed within time limit after filing of order denying petition for rehearing, is
in due time.
2. CostsVerified Bill Stating Costs are Correct and Necessarily Incurred Is Sufficient
(Supreme Court Rule 6).
Under supreme court rule 6, requiring that one seeking to recover costs file bill
stating actual costs, a bill stating that costs listed are correct and necessarily
incurred is sufficient.
See 15 C.J. sec. 655, p. 262, n. 24, 28 (new); 3 C.J. sec. 1589, p. 1420, n. 31; 4 C.J. sec.
2528, p. 641, n. 9.
From a ruling of the clerk of court, overruling objections to cost bill of plaintiff, defendant
appeals. Ruling sustained.
OPINION
By the Court, Coleman, C. J.:
The respondent filed objections to the cost bill of the appellant, the grounds of objection
being:
(1) That the said cost bill is not in conformity with the rule of the supreme court with
reference to cost bills, particularly rule VI of the supreme court.
(2) That rule VI has not been complied with in showing the actual cost of typing and
printing.
(3) That said cost bill was not filed within the time allowed by law or the rule of court in
that the said decision and opinion was published in the year 1925.
The clerk of the court overruled the objection and allowed costs as claimed in the cost bill.
Respondent has appealed from the ruling of the clerk.
1. There is no merit in the objection. As to the last point made, it appears that the cost bill
was filed within the time limit after the order denying respondent's petition was filed. This is
within time. Ramelli v. Sorgi, 40 Nev. 281, 161 P. 717.
2. As to the second ground of objection, it may be said that the proof of the claim was
identical to that in the case of Sorge v. Sierra Auto Supply Co. et al., 48 Nev. 60, 227 P. 320;
hence it is sufficient.
49 Nev. 310, 313 (1926) Siebert v. Smith
The first objection is very general, and does not point out wherein the cost bill is not in
conformity with the rules of the court. Counsel does not refer to it in his brief, and hence
evidently waives the point. An inspection of the cost bill shows, however, that it is sufficient.
The ruling of the clerk is sustained.
____________
49 Nev. 313, 313 (1926) Segale v. Pagni
SEGALE v. PAGNI, Et Al. (PAGNI, Et Al., Interveners).
No. 2724
April 13, 1926. 244 P. 1010.
On Motion to Dismiss Appeal
1. Appeal and Error.
Absence of bill of exceptions in record, settled and allowed by the court or stipulation of parties, is
not ground for dismissal, as judgment may be reversed for errors appearing on face of judgment roll
alone.
2. Appeal and Error.
Appellant, failing to file properly prepared and certified transcript of record, will be given opportunity
to prepare and file it in compliance with Stats. 1923, c. 97, and supreme court rule 4.
3. Appeal and ErrorUnder Stats. 1923, c. 97, Sec. 1, Transcript of Record Properly
Certified becomes Bill of Exceptions (Stats. 1915, c. 142, Sec. 3); In Lieu Of.
Under Stats. 1923, c. 97, sec 1, transcript of testimony, certified by court to be full, true, and correct,
becomes bill of exceptions, notwithstanding Stats. 1915, c. 142, sec. 3; in lieu of, as used in Stats.
1923, meaning in place of, or instead of.
See 4 C.J. sec. 1808, p. 209, n. 21; sec. 1811, p. 213, n. 48; sec. 2380, p. 572, n. 31 (new); sec. 2399, p. 588, n.
87 (new); 37 C.J. p. 347, n. 1.
Appeal from Eighth Judicial District Court, Lyon County; Clark J. Guild, Judge.
Action by Eugene Segale, as administrator of the estate of Mike Moroni, deceased, against
Sabatino Pagni and others, in which Antoinetta Pagni and another intervened. From the
judgment, interveners appeal. On motion to dismiss appeal and affirm judgment. Motions
denied with directions.
49 Nev. 313, 314 (1926) Segale v. Pagni
William M. Kearney, for Movant:
There can be no bill of exceptions without five days service and notice that it was filed as
such. There was no service in this case of any bill of exceptions. Proposed record on appeal
only, was served. Stats. 1915, 142; Stats. 1923, c 97; Stats. 1915, c. 142. If appellants claim
they served bill of exceptions, they then served no record on appeal. Transcript is bill of
exceptions only when filed, allowed, settled and certified to as such. Stats. 1915, c. 142.
Court must settle bill of exceptions, if within five days objections are made thereto. Stats.
1923, c. 97; Capurro v. Christensen, 46 Nev. 249; Scossa v. Church, 43 Nev. 407.
Document designated notice of appeal which was not attached to and made part of record,
nor certified to, and no showing made that it was served has no place in files on appeal.
Reinhart Co. v. Oklahoma Co., 48 Nev. 32.
It is apparent that there is no means of settling or correcting bill of exceptions because it is
too late to serve bill to correct lack of service, jurisdiction has escaped lower court, and this
court cannot now take jurisdiction. 3 C.J. par. 1252, 1366; Baker v. Borello, 63 P. 914.
Frame & Raffetto, for Appellants:
Reporter's certified transcript was served November 2, 1925, not as purported bill of
exceptions but as complete transcript of proceedings. Within two or three days judgment roll
was also served. Movant attempts to make obsolete statue apply to later provisions of Stats.
1923, c. 97, which provides new method for preserving record in addition to that heretofore
provided, including Stats. 1915, and says filing of full and complete transcript certified by
reporter shall stand as bill of exceptions. Transcript becomes bill of exceptions upon signing
and certifying. It would be idle to contend for necessity of settling it by judge when it is
expressly provided it need not be so settled. It may be corrected at any time on written
application.
49 Nev. 313, 315 (1926) Segale v. Pagni
OPINION
By the Court, Coleman, C. J.:
This case is before the court on respondent's motion to dismiss the appeal and for an order
affirming the judgment.
1. The first three grounds of the motion are based upon the proposition that there is no bill
of exceptions in the record settled and allowed by the court or judge or by stipulation of the
parties. There is a pretended bill of exceptions in the record, certified and sworn to by the
court stenographer, but, if not effort had been made to embody a bill of exceptions in the
record, the motions should be denied so far as the first three grounds are concerned, for the
reason that we cannot, at this stage of the proceedings, assume that appellants may not
contend that, for errors appearing upon the face of the judgment roll alone, the judgment
should be reversed.
2. The fourth ground of the motion is that appellants did not serve and file, as provided by
law, a completed record on appeal, and that no certificate of the clerk of the trial court was
served upon respondent prior to December 2, 1925. There is not such a transcript on file as
the law contemplates, but, as we said in Shirk v. Palmer, 232, P. 1083, 48 Nev. 449:
While there is not in the record in this case a properly prepared and certified transcript of the
record, we would not feel justified in dismissing this appeal, without giving the appellant an
opportunity to prepare and file such a transcript, in compliance with rule 4 of this court and
the statutes pertaining to such matters. Such is the spirit of the act of 1923.
See, also, E. Reinhart Co. v. Oklahoma Gold Mining Co., 226 P. 902, 48 Nev. 32.
In this connection we may say that, in the recent case of Water Co. v. Tonopah Belmont
Development Co. (Nev.), 241 P. 1079, we made certain rulings relative to the requirements in
bringing up a record on appeal.
It is next contended that the so-called record on appeal was not filed within 30 days after
the appeal was perfected.
49 Nev. 313, 316 (1926) Segale v. Pagni
perfected. There is an undisputed affidavit in the record showing that the notice and
undertaking on appeal were served upon respondent on October 23, 1925. The so-called
record on appeal was filed with the clerk of this court on November 6, 1925. It seems to have
been filed within 30 days from the taking and perfecting of the appeal.
As to the motion to strike the so-called record on appeal, and that the judgment be
affirmed because of failure to comply in various ways with paragraphs 1, 3, and 4, of rule IV
of this court, we may say that, in view of the act of 1923, as construed and applied in Shirk v.
Palmer, supra, we do not see how we can consistently make an order to strike and dismiss
except on condition that appellants be first given an opportunity to comply with the rule.
In passing on the first three grounds of the motion, we have not deemed it necessary to
refer to the nature of the attack upon the bill of exceptions.
3. Since the motions in this case were orally argued, and, after a tentative opinion had been
prepared, counsel for respondent filed herein a further memorandum of points and authorities
in support of the motions. The point therein made is that section 1 of chapter 97, Stats. 1923,
relative to the settling of a bill of exceptions is inpari materia with section 3, c. 142, Stats.
1915, and that, since the statute of 1915 allowed five days within which a respondent might
take steps to correct such so-called bill of exceptions, and since said so-called bill of
exceptions was transmitted by the clerk of the trial court to and filed by the clerk of this court
before said five days were up, there is no bill of exceptions in the record. It is further said that
the attorney for the respondent was not served with a bill of exceptions, though it is admitted
that he was served with a transcript of the testimony certified to as being correct by the
official court reporter. Section 1 of chapter 97, Stats. 1923, reads:
At any time after the filing of the complaint and not later than twenty (20) days after final
judgment, or if a motion be made for a new trial, then within twenty {20) days after the
decision upon such motion, any party to an action or special proceeding may serve and
file a bill of exceptions to such judgment or any ruling, decision, order, or action of the
court, which bill of exceptions shall be settled and allowed by the judge or court, or by
stipulation of the parties, by attaching thereto or inserting therein a certificate or
stipulation to the effect that such bill of exceptions is correct, contains the substance of
the proceedings relating to the point or points involved and has been settled and allowed,
and when such bill of exceptions has been so settled and allowed it shall become a part of
the record in such action or special proceeding.
49 Nev. 313, 317 (1926) Segale v. Pagni
(20) days after the decision upon such motion, any party to an action or special proceeding
may serve and file a bill of exceptions to such judgment or any ruling, decision, order, or
action of the court, which bill of exceptions shall be settled and allowed by the judge or court,
or by stipulation of the parties, by attaching thereto or inserting therein a certificate or
stipulation to the effect that such bill of exceptions is correct, contains the substance of the
proceedings relating to the point or points involved and has been settled and allowed, and
when such bill of exceptions has been so settled and allowed it shall become a part of the
record in such action or special proceeding. A transcript of the proceedings certified by the
court reporter to be a full, true, and correct transcript thereof may be filed in lieu of such bill
of exceptions and when so filed shall be and constitute the bill of exceptions without further
stipulation or settlement by the court; provided, however, that on motion duly noticed, the
court may at any time correct any error in such transcript by appropriate amendment thereto.
The transcript of the testimony is in strict conformity to the provision of the last sentence
of the section. That sentence provides that a transcript duly certified to by the court reporter
may be filed in lieu of the bill of exceptions. This seems clear enough. The Standard
Dictionary defines the word lieu as place; steadused chiefly in the phrase in lieu of.
Webster's New International Dictionary defines it as follows: Place; room; steadused
chiefly in the phrase in lieu of; that is, instead of. Giving the words of the statute their usual
meaning, it provides that the transcript of the testimony certified to by the court reporter
might be filed in the place of, or instead of, a bill of exceptions. But the language of the
statute needs no interpretation, for it says that, when so certified and filed, the transcript of
the evidence shall be and constitute the bill of exceptions without further stipulation or
settlement. The bill of exceptions is in strict conformity with the law. There being a perfect
bill of exceptions in the record, all objections thereto are without force.
49 Nev. 313, 318 (1926) Segale v. Pagni
record, all objections thereto are without force. We do not mean to be understood as holding
that such bill of exceptions cannot be corrected, but section 3 of the 1915 act in no way
affects the settling of a bill of exceptions when settled as in this case, pursuant to the 1923
act. Our statutes use the term bill of exceptions very loosely. A transcript of the testimony
in a case, properly speaking, is only a tendered bill of exceptions until it is settled in one of
the methods provided by law, when it becomes a bill of exceptions. The 1915 act provides the
method to be resorted to, to bring about the settlement of what is really a tendered bill of
exceptions, which becomes a bill of exceptions when settled. The same may be said as to the
first portion of section 1 of the 1923 act, but the last sentence of this act provides, in
substance, that a transcript of the testimony, properly certified, shall have the force and effect
of a bill of exceptions.
The situation here presented, along with the confusion which has been created by the
numerous amendments since the revision of our practice act in 1912, demonstrates the
importance of an act authorizing this court, with the aid of a committee of experienced
practitioners, to draft, adopt, and promulgate rules regulating the procedure in taking an
appeal from judgments and orders of the district courts.
It is ordered that the various motions made by the respondent be, and the same are hereby,
denied. It is further ordered that appellants have 15 days in which to prepare, serve, and file
herein a corrected transcript of the record proper in compliance with the statute and rule IV of
this court. For failure to comply with this order, the appeal may be dismissed.
____________
49 Nev. 319, 319 (1926) McGuire v. Ehrlich
McGUIRE v. EHRLICH
No. 2715
May 5, 1926. 245 P. 703.
1. Executors and AdministratorsAdministratrix's Right of Action in Unlawful Detainer
Rests on Right of Estate to Possession of Such Property.
Sole test as to administratrix's right of action in unlawful detainer is right of estate to possession of
property.
2. Executors and AdministratorsPossessory Right of Administratrix to Property of
Deceased Terminates when Estate Is Settled or Delivered Over by Order of District
Court to Heirs or Devisees.
When estate is settled or delivered over by order of district court to heirs or devisees, possessory right
of administratrix to estate of deceased, and right to receive rents and profits thereof under Rev. Laws, sec.
5950, terminates.
3. Executors and AdministratorsTitle to Property of Deceased Sold by Administratrix
Vests in Vendee by Order of Confirmation of District Court.
Under Rev. Laws, secs. 5980, 5999, title to property of deceased sold by administratix vests in
vendee by order of confirmation of district court, and deed is nothing more than an act of officer of court
pursuant to decree.
4. Executors and AdministratorsAdministratrix Held Real Party in Interest Prior to
Confirmation of Sale Entitled to Maintain an Action for Possession of Leased Property
of Estate and to Recover Accrued Rents.
Administratrix held real party in interest, in view of Rev. Laws, sec. 5950, entitled to maintain an
action for possession of leased property of estate, and to recover accrued rents, notwithstanding her sale
thereof by court order to another, where such sale had not been confirmed by district court.
5. Executors and AdministratorsNotice, Served on Tenant for Payment of Rent or
Surrender of Premises Belonging to Deceased, Held Not Invalid Because Signed by
Attorney for Administratrix.
Notice, served on tenant calling for payment of rent or surrender of premises belonging to estate of
deceased, held not invalid because signed by attorney of administratrix, and without showing that he was
an attorney at law or in fact.
6. Executors and Administrators.
In administratrix's action to recover property belonging to estate, question of ownership of property
by deceased held one of fact.
7. Appeal and Error.
Trial court's finding of fact, based on conflicting evidence, is conclusive on appeal.
8. Appeal and Error.
Reviewing court cannot consider papers or files which do not constitute a part of judgment
roll, and have not been incorporated in a bill of exceptions.
49 Nev. 319, 320 (1926) McGuire v. Ehrlich
not constitute a part of judgment roll, and have not been incorporated in a bill of exceptions.
See (1-4) 24 C.J. sec. 596, p. 133, n. 42; sec. 603, p. 135, n. 62; sec. 609, p. 139, n. 86; sec. 610, p. 139, n. 92;
sec. 1532, p. 608, n. 41; sec. 1709, p. 695, n. 62; sec. 1710, p. 695, n. 69; sec. 2267, p. 910, n. 90; (5) 36
C.J. sec. 1840, p. 641, n. 15; (6) 36 C.J. sec. 1885, p. 667, n. 61 (new); (7, 8) 4 C.J. sec. 1786, p. 180, n.
34.
Appeal from the Fifth Judicial District Court, Nye County; Frank T. Dunn, Judge.
Action by Ethel B. McGuire, as administratrix of the estate of I.M. Hensley, deceased,
against Joe Ehrlich. From a judgment for plaintiff and an order denying a motion for new
trial, defendant appeals, and plaintiff appeals from so much of judgment as relates to costs.
Affirmed.
I.S. Thompson, for Appellant:
Plaintiff was not real party in interest, owner, nor entitled to possession when she sold
property. Order confirming sale directed administratrix to execute conveyance of whatever
title deceased had in property, giving purchaser title from date of sale. 11 A. & E. Ency. 1114;
Halliburton v. Sumner, 29 Ark. 460.
Purpose of action of forcible entry and unlawful detainer is purely for rent and possession,
not to try rights of parties nor title. Rev. Laws, 6743; Iburg. v. Fitch, 57 Cal. 189; 13 A. & E.
Ency. 743.
Notice to quit must be given immediately upon default in payment of rent. Suit must be
commenced promptly after notice. 13 A. & E. Ency. 771; New v. Collins, 21 Okl. 430.
Plaintiff's name must be signed to notice, even though it is signed by representative. 26
C.J. 838.
Occupancy of house on tract does not constitute forcible entry or unlawful detainer of
entire tract, particularly when there was offer to prove portions were rented to and occupied
by others. Thompson v. Smith, 28 Cal. 528.
Possession is the issue, rent and damage only incidental. Caulfield v. Stevens, 28 Cal. 121.
49 Nev. 319, 321 (1926) McGuire v. Ehrlich
Orr Ditch and Frezeau cases are cited by respondent. The Orr Ditch case was on contract;
the Frezeau case upon promissory note. Neither was upon forcible entry and unlawful
detainer and does not apply.
Counsel's stipulation did not make judgment roll plaintiff's bill of exceptions, and
appellant's bill does not help respondent. In Ehrlich's bill she has no notice of appeal, no
assignment of errors, and no record on which to base hearing here. Statute regulates what
shall constitute judgment roll. Any additional papers are surplusage. Rev. Laws. 5273.
Ryland G. Taylor, for Respondent:
It matters not whether plaintiff is real party in interest or not because it does not appear
that defendant had any interest in property. Only those interested can make objection. Estate
of Arguello, 50 Cal. 308. Nor can sale be collaterally attacked. Estate of Devincenzi, 51 P.
845. Sales must be reported to court and confirmed before title passes. 1 Ross Probate Law
and Practice, 589.
Lang could not have been made party until sale was confirmed. In any event it was
appellant's duty to move that Lang be made party. No such motion was made. It is too late to
make that claim for first time here. He who is silent when he ought to have spoken shall not
be heard when he ought to be silent. 96 U.S. 720.
It was not error to refuse defendant's testimony as to Alred's taking possession. Their
differences were collateral. There is no complaint that plaintiff did not permit defendant
peaceable enjoyment.
Penal features of unlawful detainer statute have been nullified by Hoopes v. Myer, 1 Nev.
433. Mere fact that prayer of complaint demands treble damages could not damage defendant
if they were waived and denied by court. Court did not impose penalty or damages but
allowed agreed rental. No damage was done defendant by alleging statutory notice in
unlawful detainer and demand for treble damages. Statute provides what complaint shall
contain.
49 Nev. 319, 322 (1926) McGuire v. Ehrlich
complaint shall contain. Complaint showing good cause is not bad because of unnecessary
averments contained therein. Orr Water Ditch Co. v. Reno Water Ditch Co., 19 Nev. 60.
It does not matter what complaint demands, providing court does not exceed prayer and
judgment is supported by evidence.
Delay in bringing suit would not waive rent due. Defendant cannot claim that because he
did not pay rent when demanded, he should not pay it at all.
Attachment may issue in action upon contract for direct payment of money not secured by
mortgage, etc. Rev. Laws, 5147. What is agreement to pay rent if not such contract?
Where plaintiff recovers three hundred dollars or more, costs are allowed of course. Rev.
Laws, 5377.
If appellant has bill of exceptions, respondent has one also for reason that bill of appellant
has been adopted by parties as bill of respondent. This case differs from Shirk v. Palmer, 48
Nev. 451. In this case there is bill of exceptions properly before court. Matters complained of
are before court in judgment roll.
OPINION
By the Court, Sanders, J.:
The plaintiff below, respondent, as administratrix of the estate of I.M. Hensley, deceased,
leased the real property of said estate, consisting of 160 acres of land, together with a frame
store building, dwelling, and improvements thereon, situate in Nye County, Nevada, to the
defendant below, appellant, at a monthly rental of $25, payable in advance. The defendant
entered into the possession of the premises. Subsequently the plaintiff, as administratrix of
said estate, applied to the court for an order to sell the rented premises for the benefit of the
estate. The order of sale was obtained, and the property was advertised for sale, and sold by
the administratrix on the 17th day of November, 1923, to H.B. Lang for the price of $250. On
the 4th day of January, 1924, the plaintiff, as administratrix, caused a demand in writing to
be made upon the defendant for the payment of rent or for the surrender of the premises
within three days after the service upon him of said demand.
49 Nev. 319, 323 (1926) McGuire v. Ehrlich
1924, the plaintiff, as administratrix, caused a demand in writing to be made upon the
defendant for the payment of rent or for the surrender of the premises within three days after
the service upon him of said demand. The defendant neglected and refused for the space of
three days after said demand to pay the rent or surrender the premises. Thereafter, on, to wit,
the 8th day of August, 1924, the plaintiff as administratrix brought this action in unlawful
detainer for the restitution of the premises and demanded judgment for $275 as rent, and for
such additional sum as might become due during the pendency of the action. Subsequent to
the commencement of the action, to wit, on the 1st day of October, 1924, the court made an
order in the matter of said estate confirming the sale of the property in November, 1923, to
H.B. Lang.
The case was tried without a jury. The court, after a full hearing upon the pleadings and
evidence, found in favor of the plaintiff, and rendered judgment against the defendant for the
sum of $325, and adjudged and ordered that each side pay its own costs.
The defendant has appealed from said judgment, and also from an order denying the
defendant's motion for new trial. The plaintiff has appealed form so much of said judgment as
relates to costs.
We shall consider first the defendant's appeals.
1-4. Appellant contends that the court below erred in refusing to grant his motion to quash
the proceedings on the ground that the proof showed that plaintiff as administratrix was not at
the time of the commencement of her action the real party in interest, and was, therefore, not
entitled to maintain this action. In support of this position it is insisted that through the
administratrix's sale of the property by court order to H.B. Lang he became, and was, the real
party in interest, and the only person entitled to the possession of the property and to the rents
and profits thereof. This contention involves the construction of certain sections of the statute
relative to the settlement of estates of deceased persons. The sole test to the administratrix's
right of action is right of the estate to the possession of the property.
49 Nev. 319, 324 (1926) McGuire v. Ehrlich
action is right of the estate to the possession of the property. The executor or administrator
has a right to the possession of all the real, as well as personal, estate of the deceased, and
may receive the rents and profits of the real estate until the estate shall be settled, or until
delivered over by order of the district court to the heirs or devisees. Section 5950, Rev. Laws.
When either of these events happen, the possessory right of the administrator under the
statute terminates. Meeks v. Hahn, 20 Cal. 620; Touchard v. Keyes, 21 Cal. 208. But it is
contended that section 5950, Rev. Laws, has no application, where the property is sold for the
benefit of the estate by court order upon the petition of the administratrix. Under our statute
(section 5980, Rev. Laws) no sale of any property of an estate of a deceased person shall be
valid, unless made under an order of the district court. And section 5999, Rev. Laws,
provides that, if upon the hearing for confirmation it shall appear to the court that the sale was
legally made and fairly conducted, the court shall confirm the sale and direct proper
conveyances to be made and executed, and such sale from that time shall be confirmed and
valid. The meaning of these provisions, it is said, clearly is that the title vests in the vendee
by the order of confirmation, and the deed is nothing more than the act of an officer of the
court pursuant to the decree. 11 Cal. Jur. sec. 588, p. 948. Passage of title takes place upon
the confirmation of the sale, and there is nothing in the statute authorizing the construction
that before the confirmation of the sale the executor or administrator is not the proper person
or real party in interest to maintain an action for the possession of the leased property of the
estate and recover the accrued rents.
5. It is argued on behalf of appellant that no legal notice was served upon him before the
commencement of this action to surrender the premises or pay rent. The notice or demand
served upon the defendant was signed by the attorney for the administratrix. We are of
opinion that such notice may be signed by an agent or attorney, and a notice signed by an
attorney need not show whether he is an attorney at law or in fact.
49 Nev. 319, 325 (1926) McGuire v. Ehrlich
show whether he is an attorney at law or in fact. Arnold v. Krigbaum, 146 P. 423, 169 Cal.
143, Ann. Cas. 1916d, 370.
6, 7. It is contended that the proof shows that the relation of landlord and tenant did not
exist between the parties, for the reason that the property claimed by the defendant was not
owned by the deceased at the time of his death, but, on the contrary, was the property of a
third person from whom it had been purchased by the defendant during the lifetime of the
deceased, and with his knowledge. The question of ownership was one of fact, and, there
being a substantial conflict in the evidence bearing upon this question, we cannot under the
rule disturb the court's finding to the effect that at the time of the decedent's death he was the
owner of all the property described in the plaintiff's complaint.
We shall not dispose of the respondent's appeal from the judgment with respect to costs.
8. The appellant, defendant below, moved to strike from the judgment roll those certain
papers or files designated as Memorandum of Costs, Notice of Motion, and the order
signed Frank T. Dunn, District Judge. The papers or files so designated do not constitute a
part of the judgment roll, and, not having been incorporated in a bill of exceptions, we cannot
consider them in connection with the plaintiff's appeal. We therefore sustain appellant's
motion to strike.
The judgment is affirmed.
____________
49 Nev. 326, 326 (1926) Barcellos v. Gompertz
BARCELLOS v. GOMPERTZ
No. 2700
May 6, 1926. 245 P. 700.
1. Appeal and Error.
Reviewing court should disregard all errors that do not affect a substantial right.
2. Appeal and Error.
Findings of trial court, supported by substantial evidence, though conflicting, will not be disturbed.
3. SalesFinding of Trial Court, that Parties Intended Title of Property Should Pass at Time
of Sale, Held Supported by Evidence.
In action to recover possession of personal property sold defendants, finding of trial court that parties
intended title should pass at time of sale held supported by evidence, although conflicting.
4. SalesAdmission in Evidence of Unexecuted Bill of Sale which Defendant Sent to
Plaintiff with Payment of Purchase Price, Held Not Erroneous, though Nothing Was
Said About Bill, Since Parties May Have Agreed that Title Would Pass when Payment
Was Made.
In action to recover possession of personal property sold defendants, admission in evidence of
unexecuted bill of sale, which defendant had prepared and set over with check to be executed by
plaintiffs, held not erroneous because nothing had been said about a bill of sale, since it may have been
agreed that title would pass when payment was made.
5. Appeal and ErrorAny Error in Admission in Evidence of Unexecuted Bill of Sale, in
that Nothing Had Been Said About Such Bill, Held Not Prejudicial, where There Was
Evidence that Bill Had Been Sent to Plaintiffs by Defendants.
In action to recover possession of personal property sold defendants, any error in admission in
evidence of unexecuted bill of sale held not prejudicial, in that nothing had been said about a bill of sale
during negotiations, where there was evidence that such bill of sale had been sent to plaintiffs by
defendants.
6. Appeal and ErrorAny Error in Refusing to Permit Cross-Examination of Defendant as
to Failure to Make Deferred payments on Property Sold Held Not Prejudicial, where
Title Passed at Time of Sale.
In action to recover possession of personal property sold defendants, any error in refusing to permit
cross-examination of defendant as to his failure to make deferred payments on the property held not
prejudicial, where title to property passed to defendant at time of sale.
7. Appeal and ErrorOverruling Motion to Strike Testimony Based on Particular Ground
Will Not Be Considered on Appeal, where Reason Urged for Sustaining Motion is
Different from that Assigned at Trial.
Overruling of motion to strike testimony based upon a particular ground in trial court will
not be considered, where reason urged on appeal for sustaining motion is entirely
different from that assigned at trial.
49 Nev. 326, 327 (1926) Barcellos v. Gompertz
particular ground in trial court will not be considered, where reason urged on appeal for sustaining
motion is entirely different from that assigned at trial.
8. EvidencePermitting Witness to Testify as to Telephone Conversation with Plaintiff
Held Not Error, because Talk Was Made After Sale Was Concluded, Since Such
Conversation Could Not Change Contract, and Court from Conversation Could Infer
that a Sale Was Made.
In action to recover possession of personal property sold defendants, permitting witness to testify as
to conversation with plaintiff held not error because talk was had after negotiations were concluded and
property had arrived at destination, since such conversation could not change the contract, and court from
conversation could infer that a sale was made.
See (1, 2, 5, 6, 7) 3 C.J. sec. 733, p. 819, n. 26; 4 C.J. sec. 2726, p. 776, n. 54; sec. 2855, p. 884, n. 37; sec.
2955, p. 975, n. 88; sec. 3190, p. 1168, n. 98, 10; (3, 4) 35 Cyc. p. 508, n. 94 (new); p. 517, n. 76; p. 518,
n. 93; (6) 40 Cyc. p. 2493, n. 37.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by Frank Barcellos and others against G.H. Gompertz and others, in which Sierra
Market, Inc., intervened. From a judgment for intervener and an order denying a motion for a
new trial, plaintiffs appeal. Affirmed.
Mack & Green and A.F. Lasher, for Appellants:
Rev. Laws 5006 prescribes that intervener shall file complaint stating grounds; file it with
leave of court; serve it upon parties who have not appeared; and upon attorneys of those who
have appeared. Intervener did not conform to first, second, or third requisites.
Rev. Laws 5038 was construed in State ex rel. Piper v. Gracey, 11 Nev. 223, to effect that
complaint must set forth specifically each fact in issuable form which is necessary to establish
right of action.
Having failed to allege title in Gompertz, intervener failed to allege any right in itself by
transfer from him. Gentry v. Low, 4 Nev. 99.
Parties to action in which intervention is filed have ten days to plead, as in any other case.
Rev. Laws, 5006.
If intervention should not have been allowed, evidence relating to issues presented by it
should be disregarded.
49 Nev. 326, 328 (1926) Barcellos v. Gompertz
relating to issues presented by it should be disregarded. Harlan v. Eureka Mining Co., 10
Nev. 92.
Practically whole of damages claimed occurred subsequently to institution of principal suit
and could not be made issue in case except by proper supplemental pleading. 17 C.J. 1000.
Rev. Laws 5076 prescribes proper way to plead damages.
Damages sought in answer in intervention were remote and speculative, not actual. 17 C.J.
753.
Alleged sale being fraudulent because of failure of immediate delivery and actual and
continued possession (Rev. Laws, 1078), intervening company could not be protected even as
purchaser for value without notice, since Rosenthal, its officer, assisted in transaction, thereby
charging company with notice of all he knew, even though he did not communicate it. 14a
C.J. 2350.
There was either contract for conditional sale by which seller retained title not required by
statute to be in writing (35 C.J. 663) or else no contract of sale at all.
Objection that pleading fails to state cause of action or defense may be raised at any time.
Neilsen v. Rebard, 43 Nev. 274.
W.M. Kearney, and S.H. Rosenthal (Harry Swanson on the brief), for Respondents:
Theory of amended complaint is that plaintiffs sold machinery to Gompertz upon
conditional sale.
If such be fact, fraudulent representation as to insolvency of vendee is immaterial, as
vendor was secured.
That complaint was called petition or answer is immaterial so long as it contained
allegations sufficient to conform to statute. People ex rel. Fogg v. Parris Irrigation District
(Hutchins, Intervener), 64 P. 399.
Objection that complaint in intervention does not state facts sufficient to constitute cause
of intervention comes too late when first raised upon appeal. People ex rel. Attorney General
v. Reis, 18 P. 309. As matter of fact, issues were joined by stipulation.
Petition was filed by leave of court; all parties accepted it as if it were called complaint,
and made no objection thereto.
49 Nev. 326, 329 (1926) Barcellos v. Gompertz
objection thereto. Marshall v. Golden Fleece Co., 16 Nev. 156. Objection to intervention
because of insufficiency of complaint or want of right must be made at time, or will be
considered waived. Gorham v. Heiman, 27 P. 289.
Gentry v. Low, 4 Nev. 99, is out of point because townsites require possession of lot.
Intervention must be made before trial. Rev. Laws, 5006.
Allowance or refusal of amendment will be reversed only in case court grossly abuses
discretion. 31 Cyc. 368. Rev. Laws, 5084. As no damage was allowed under amendment
appellants have no complaint.
Warehouse negotiations showed actual and constructive change of possession. Actual
manual delivery of bulky articles is not necessary. Any act done with intent to transfer
possession and dominion is sufficient. 35 Cyc. 187.
Bill of sale was not necessary, since delivery passed title in absence of contract to contrary.
Sanders v. Stokes, 30 Ala. 432; Gaudette v. Travis, 11 Nev. 149.
OPINION
By the Court, Coleman, C. J.:
This action was brought to recover the possession of certain personal property. The Sierra
Market, Inc., intervened, and judgment was rendered in its favor. The plaintiffs appealed from
the judgment and from the order denying their motion for a new trial. The parties will be
referred to as they were designated in the trial court.
The plaintiffs assigned numerous errors, among them the ruling of the court on objections
to the order permitting the intervention, and to other rulings in connection therewith. The
plaintiffs, who resided in Yerington, were the owners of the property in December, 1923. On
or about the 2d day of that month Gompertz went to Yerington, at which time he saw the
plaintiffs relative to purchasing the property. The plaintiffs agreed to take $S50 for the
property, half payable in cash, and the balance in four monthly payments; the theory of
the plaintiffs being that they were to retain the title until the deferred payments were
made, and that of Gompertz being that he was to get title on making the cash payment.
49 Nev. 326, 330 (1926) Barcellos v. Gompertz
agreed to take $850 for the property, half payable in cash, and the balance in four monthly
payments; the theory of the plaintiffs being that they were to retain the title until the deferred
payments were made, and that of Gompertz being that he was to get title on making the cash
payment. The testimony is to the effect that Gompertz sold the plant to the intervener after
acquiring possession of it.
1. The trial court found that the theory of the defendant and intervener as to the passing of
the title was sustained by the evidence. If we sustain this finding, it is unnecessary to
determine the other questions presented by the plaintiffs, since we should disregard all errors
that do not affect a substantial right. Ramezzano v. Avansino, 189 P. 681, 44 Nev. 86.
2, 3. It is a well-established rule in this state that, if the findings of the trial court are
supported by substantial evidence, though conflicting, such findings will not be disturbed.
Dixon v. Miller, 184 P. 926, 43 Nev. 288. Let us see if the evidence as to the passing of the
title is conflicting.
Frank Barcellos, one of the plaintiffs, testified in effect as follows: Gompertz and a man
named Davis called to see me about the property one Sunday morning early in December,
1923. My terms were $425 cash, the balance of $425 to be paid in four monthly payments, the
title to remain in us. Gompertz returned to Reno and was to let me know later if he would
take the plant. Some days later he telephone me, saying that he was going to send over a
couple of men to get the plant. Two men came over, bringing Gompertz's check and a bill of
sale. One of the men showed me the check, then put it in his pocket, and did not give me the
check and bill of sale until after they had torn down the plant and were ready to leave. They
wanted me to sign the bill of sale. I refused to do this, but gave a contract to one of the men to
deliver to Gompertz.
John Barcellos, the other plaintiff, testified:
A. He want to buy the ice plant and asked how much I want for it, and I said $S50.
49 Nev. 326, 331 (1926) Barcellos v. Gompertz
I want for it, and I said $850. He said after that he got enough money to pay for it, to buy it,
but he just starting business, and he just pay $425 down and get the plant and pay in four
payments. The first payment $125 the 10th of January, the second payment the 10th of
February $100, March $100 on the 10th, and April $100 the 10th. That is all I know about it.
Q. Was anything else said about the terms? A. He saidnever say anything about the
terms, just like that.
Q. What did the folks say about the terms? A. I said it is good enough if I get a mortgage
on the plant.
Q. You keep the mortgage on the property? A. Yes, sir.
Q. What do you mean by that?
Mr. Kearney: Objects to that as calling for a conclusion.
A. Keep security on the property.
This is all of the testimony on the part of the plaintiffs as to the terms of the contract.
In opposition to the testimony on behalf of the plaintiffs, Gompertz testified:
A. I looked up Mr. Barcellos, and after a while I found him and told him I came to buy an
ice machine, and he took me over and showed me the plant and what he wanted to sell. He
stated a price to me, and I told him I though it was a little high, but we finally agreed upon a
price of $850, and I said that I didn't think I was quite able to pay $850 right down then and
there, but, if he was willing to accept four and a quarter and four notes and give me the bill of
sale for the whole complete outfit, I would buy it. He told me he would have to talk to his
brother and would meet me about 4 o'clock that evening; and about 4 o'clock his brother
showed up, and he says, Yes; we will take the proposition you offered'; and I said Well, I
haven't decided I want it, but I will think it over.' And I went home, and possibly a day or two
later I telephone to Mr. Barcellos and asked him if he still had the machine and if he was
satisfied to sell on the terms I offered, and I told him I would send a truck and I would give
this man the money and the bill of sale and the notes, and they would be down possibly
the next day or the day after.
49 Nev. 326, 332 (1926) Barcellos v. Gompertz
truck and I would give this man the money and the bill of sale and the notes, and they would
be down possibly the next day or the day after. I told him possibly the next day, but that he
should consider the machine sold.
Q. What was his reply? A. It was satisfactory that he would hold the machine until the
men came.
Mr. Davis, a disinterested witness, testified:
A. Mr. Gompertz looked all the plant over and the usual discussion, and told Mr.
Barcellos the terms he would purchase the ice plant under, and they were that he would pay
$425 in cash and the balance in four notes, and Mr. Barcellos advised him that he would have
to take it up with his partner as soon as he came back, and he would give him his answer.
Q. Did he make any statement at that time on his own behalf? A. It apparently was
agreeable to him,
Q. Later on when Mr. John Barcellos arrived state what took place. A. Later on Mr.
Gompertz and I came around, and finally Mr. Frank Barcellos came and told Mr. Gompertz
that the proposition was agreeable to them, and Mr. Gompertz told them he wanted to go
back to Reno before he gave them a definite answer, but, if they would hold it for a week, he
was sure he would take the machine.
Q. Did they agree to that? A. Yes, sir.
Q. Then you left? A. Yes, sir.
Q. Was there anything at that time said about a mortgage or conditional sales contract? A.
There was no mention of it.
Mr. Rosenthal, the attorney who drew the bill of sale for the property, testified:
I put in a long distance call for the Barcellos, and in answer to that call some one at the
other end spoke, and I asked if it was Mr. Barcellos, and he stated it was, and I said, I am Mr.
Rosenthal, the attorney for Mr. Gompertz, and I wish to take up with you the matter of the bill
of sale which was promised with reference to an ice machine that Mr. Gompertz purchased
from you'; and I says, Mr. Gompertz complains that you have not sent the bill of sale back
that I prepared for him'; and a voice on the other end stated to me that the reason they had
not sent the bill of sale back was because they had been advised as soon as they had
shipped the machine or the ice plant had left Yerington that it was not the proper way to
handle the thing, but that they should have entered into a conditional sales contract, that
they had no protection. 'Well,' I says, 'That was not your original understanding with Mr.
49 Nev. 326, 333 (1926) Barcellos v. Gompertz
a voice on the other end stated to me that the reason they had not sent the bill of sale back
was because they had been advised as soon as they had shipped the machine or the ice plant
had left Yerington that it was not the proper way to handle the thing, but that they should
have entered into a conditional sales contract, that they had no protection. Well,' I says, That
was not your original understanding with Mr. Gompertz,' and then he says, That don't make
any difference, we have changed our mind'; and then I said, Well, then you return the $425 to
us, and we will redeliver the ice plant to you'; and there was a little hesitation, and then the
voice at the other end said, Well, we will send you the bill of sale, but by God we will collect
the notes too.'
Upon the conclusion of the trial, the court expressed its views of the evidence, saying that
the plaintiffs had failed to prove their case; that the two witnesses in behalf of the defendant
were much more intelligent and were corroborated.
The fact is, if the testimony of John Barcellos is given its strict legal interpretation, the
only inference from it is that the title was to pass, for the plaintiffs could not take a mortgage
back unless it did pass. Taking into consideration the fact that Davis is a disinterested
witness, that Frank Barcellos flatly denied talking with Rosenthal over the telephone until
confronted with the bill for the talk from the telephone company, and the further fact that the
$425 check was cashed at a time which shows that his testimony, that he did not receive it
until the men sent for the plant were ready to leave, was false, we do not see how the trial
court could have reached any other conclusion. But in any event, the testimony being
conflicting, we cannot say that the findings are not sustained by the evidence, or that the court
erred in rendering the judgment or in overruling the motion for a new trial.
In view of the finding that title to the property in question passed to Gompertz, which is
amply sustained by the evidence, it is not necessary that we dispose of any of the assignments
of error relative to the sale by Gompertz to the intervener, since the plaintiffs parted with
their interest in the property and could not complain of any disposition which Gompertz
might make thereof.
49 Nev. 326, 334 (1926) Barcellos v. Gompertz
Gompertz to the intervener, since the plaintiffs parted with their interest in the property and
could not complain of any disposition which Gompertz might make thereof.
4, 5. There is no merit in the assignment going to an alleged error in admitting in evidence
the unexecuted bill of sale which Gompertz had prepared and sent over with the check to be
executed by the plaintiffs. In support of this assignment, reliance is placed upon the force of
the testimony in behalf of the plaintiffs to the effect that nothing was said about a bill of sale
during the negotiations. Nothing may have been said about a bill of sale, and yet it may have
been agreed that title would pass at the time the cash payment was made; if so, it was natural
that Gompertz would send over the bill of sale. In any event, there is evidence in the record
that such bill of sale was sent over by the men, and the admission of the bill of sale was in no
way prejudicial.
6. It is next insisted that the court erred in refusing to allow plaintiffs' attorney to
cross-examine Gompertz as to his failure to make the deferred payments on the property. We
are at a loss to see how plaintiffs were prejudiced by such ruling. If title to the property
passed on delivery and the payment of the $425, failure to pay the balance would not affect
the situation, nor would a failure to make the deferred payments enable the court to determine
what the real contract was. The court did not commit error. Nor did the court err for the same
reason as claimed in assignment K.
Assignment L pertains to a ruling as to testimony of witness Davis as to a conversation
which he heard. Counsel say in their brief:
This evidence is wholly immaterial and calculated to mislead the court. That it did, in
effect, have this tendency, is shown from the court's decision in which he stressed the
particular conversation.
In the first place, if the testimony was immaterial, it certainly would not influence the
court. In fact, the court did not stress the conversation. In alluding to this evidence, the court
said: "* * * What David heard in the attorney's office and what he heard over the phone, I
don't think I need mention."
49 Nev. 326, 335 (1926) Barcellos v. Gompertz
* * * What David heard in the attorney's office and what he heard over the phone, I don't
think I need mention.
7. Assignment M is wholly without merit. The motion to strike the testimony was upon a
particular ground. The reason urged here why the motion should have been sustained is for an
entirely different reason than that assigned at the trial.
8. The next contention is that the court erred in permitting the witness Rosenthal to testify
as to a telephone conversation with one of the plaintiffs, on the ground that the talk was had
after the negotiations were concluded and after the property had arrived in Reno. The motion
to strike made during the trial reads: Move to strike that out as not changing the contract in
any way. Counsel must stand here upon the ground assigned in the trial court. As a matter of
fact, the court did not err under either contention. What was said over the telephone could not
change the contract, but the reason given by plaintiff over the telephone was not on the
ground that no sale had been made, but because they had been advised it was not handled
properly, from which the court might have inferred that a sale was made, as contended by Mr.
Rosenthal.
For the reasons given, the judgment must be affirmed, and it so ordered.
____________
49 Nev. 336, 336 (1926) Thompsen v. Hancock
THOMPSEN v. HANCOCK
No. 2733
May 11, 1926. 245 P. 941.
1. Statutes.
Relative and qualifying words and phrases, where no contrary intention appears, refer solely to last
antecedent.
2. Hawkers and PeddlersStatute Held Not to Require Peddler of Meat Produced in Nevada
But Not by Peddler to Secure License.
Stats. 1915, c. 183 sec. 1, as amended by Stats. 1919, c. 100, sec. 1, requiring peddlers to secure
licenses, except such as are engaged in the disposal of live stock, etc., produced in Nevada, or in any
other state where the vendor is a bona fide producer or grower, held not to require a peddler of meat
produced in Nevada, but not produced by the peddler, to secure a license, as a phrase where vendor is
bona fide producer or grower refers to the words in any other state.
See (1) 36 Cyc. p. 1123, n. 54; (2) 29 C.J. sec. 17, p. 230, n. 71.
Petition for writ of prohibition by E.G. Thompsen against W.C. Hancock, Justice of the
Peace of Argenta Township, Lander County. Alternative writ made peremptory.
Thos. A. Brandon, for Petitioner:
Vendors of Nevada products are exempt, whether producers or not. Vendors from other
states are exempt if they are producers. Exception clause, Stats. 1919, 183.
In clause or in any other state where the vendor is a bona fide producer or grower,
antecedent of where is state, regardless of punctuation.
If undisputed facts do not constitute public offense, accused must be discharged. Ex Parte
Rosenblatt, 19 Nev. 439.
When inferior court invades fundamental right, appellate court will grant relief. Walser v.
Moran, 42 Nev. 111.
Howard E. Browne, District Attorney, for Respondent:
This is question of construction of exception clause of 1919 act. According to all canons of
statutory construction petitioner does not come within exception.
Construction of statute which sustains its validity must be adopted, if possible.
49 Nev. 336, 337 (1926) Thompsen v. Hancock
must be adopted, if possible. Hettel v. Court, 30 Nev. 382; Commonwealth v. Harvester Co.,
115 S.W. 703.
OPINION
By the Court, Ducker, J.:
Petitioner prays for a writ of prohibition. His petition shows the following facts, to wit: He
was arrested and tried in the respondent court sitting without a jury, on a charge of peddling
without a license. The court found him guilty as charged and fixed a time for imposing
sentence. The complaint upon which he was arrested was amended, and the charging part of
the amended complaint reads as follows:
Personally appeared before me, this 9th day of January, 1926, Jas. A. Parker, of Battle
Mountain, in the county of Lander, State of Nevada, who, being first duly sworn, complains,
and charges E.G. Thompsen with the crime of misdemeanor committed as follows: That
within his knowledge, information, and belief E.G. Thompsen, on or about the 5th day of
January, 1926, and prior to the filing of this complaint, at Battle Mountain, in the county of
Lander, did, without first procuring a peddler's license from the sheriff of Lander County,
authorizing defendant, E.G. Thompsen, to transact the business of a traveling merchant
within Lander County, sell and deliver meats, poultry, and eggs from an automobile to
various individuals at Battle Mountain, Lander County. Said defendant, E.G. Thompsen, is
not established at a place of business within Lander County, Nevada. The meats, poultry, and
eggs sold by the defendant at Battle Mountain were products of the State of Nevada, but they
were not products which the defendant had produced or grown, the same having been
purchased by defendant's employer, from the bona fide producer or grower, all of which is
contrary to the form, force, and effect of the statute of March 22, 1915, as amended by Act of
March 26, 1919, in such cases made and provided, and against the peace and dignity of the
State of Nevada.
49 Nev. 336, 338 (1926) Thompsen v. Hancock
Complaintant therefore prays that a warrant be issued for the arrest of said E.G.
Thompsen, that he may be dealt with according to law.
Before trial, petitioner, through his attorney, Thos. A. Brandon, Esq., demurred to the
amended complaint upon the ground that the same did not state facts sufficient to constitute a
public offense under the laws of the State of Nevada, and upon the further ground that the
court had no jurisdiction of the alleged offense, for the reason that the acts under which it was
filed are unconstitutional and consequently void. The demurrer was overruled by the court.
The undisputed evidence given at said trial on behalf of the State of Nevada was
substantially as follows, to wit: That E.G. Thompsen, petitioner herein, on or about the 5th
day of January, 1926, had peddled meat in Lander County, Nevada, and more particularly in
the town of Battle Mountain, situated in said Lander County, and after said petitioner had
been informed by the officers of Lander County that he must have a license for peddling or
attempting to pebble such meat; that all of said meats so peddled by petitioner at Battle
Mountain, Lander County, Nevada, where Nevada products raised and produced within the
State of Nevada; that petitioner, during the time he had so peddled meats in Battle Mountain,
Nevada, had never had any place of business at said town or within said Lander County; that
at all times while so peddling meat in Lander County, Nevada, the petitioner was acting as the
employee and under the orders of one W.H. Cooper, of Winnemucca, Humboldt County,
Nevada; that said W.H. Cooper conducts a butcher shop at Winnemucca aforesaid, and has
been so conducting the same for a period of more than five years last past and prior to the trial
of said action; that the said Cooper was also engaged in the ranching and live stock industry
in Pershing County, Nevada, raising and running cattle and sheep, and had been so ranching
and raising live stock for a large number of years prior to the trial of said action in both
Humboldt and Pershing County; that the said W.H.
49 Nev. 336, 339 (1926) Thompsen v. Hancock
Cooper had been a bona fide resident of the State of Nevada for more than 20 years prior to
the trial of said action; that he had been engaged in the peddling of meats in said town of
Battle Mountain for some two or three months prior to the trial of said action; that in so
peddling the same an automobile was loaded with meat out of the butcher shop of said W.H.
Cooper and was then driven to Battle Mountain, and there peddled by the said E.G.
Thompsen, as such employee of the said W.H. Cooper. W.H. Cooper was the bona fide
grower or producer of a portion of the Nevada products peddled by petition. Neither
petitioner nor his employer had a license to transact business as a traveling merchant.
On application for the alternative writ in this court, petitioner contended that the
respondent court had no jurisdiction in the premises for each of the reasons stated in the
demurrer. The matter has been submitted without oral argument on briefs required by this
court. Counsel for petitioner in his brief has expressly waived the constitutional objection and
states upon the contention that the justice's court is without jurisdiction to impose sentence
because the amended complaint, and the evidence in support thereof, both show that no
offense was committed, in that it appears therefrom that the products sold by petitioner were
products produced or grown in the State of Nevada.
The law involved is found at page 252 of the Statutes of 1915, as section 1 thereof was
amended in 1919. Before amendment said section read as follows:
The term traveling merchant,' wherever used in this act, shall be taken and deemed to
mean all merchants entering into business at any place within the state for a period of less
than six months, all persons vending from freight cars standing on side tracks, all hawkers,
vendors, peddlers and traveling manufacturers except such as are engaged in the disposal of
products of the soil produced in Nevada, poultry, eggs and live stock, and honey produced in
Nevada and dairy products produced in Nevada, which shall be exempt from the provisions
of this act."
49 Nev. 336, 340 (1926) Thompsen v. Hancock
produced in Nevada, which shall be exempt from the provisions of this act.
By section 2 of the act a traveling merchant, prior to commencing business, is required to
procure a license from the sheriff of the county wherein he desires to transact such business,
and pay therefor the sum of $100 per month.
As amended in 1919 section 1 reads:
The term traveling merchant,' wherever used in this act, shall be taken and deemed to
mean all merchants entering into business at any place within the state for a period of less
than six months; all persons vending from freight cars standing on side tracks, or hawkers,
vendors, peddlers and traveling manufacturers, except such as are engaged in the disposal of
the products of the soil, poultry, eggs, live stock, honey or dairy products produced in
Nevada, or in any other state where the vendor is a bona fide producer or grower, who shall
be exempt from the provision of this act. Stats. 1919, pp. 183, 184.
1, 2. As heretofore stated, the petition shows that it was proved that all of the products sold
by petitioner were Nevada products, but neither the petitioner nor his employer was the
grower or producer of a portion of the same.
Counsel for respondent contends that, by the exception clause of the section as amended,
only persons who are the growers or producers of products sold by them are meant to be
exempt from the provisions of the act. We cannot agree with this construction. By the act of
1915 the intention to exempt Nevada products is clearly and unequivocally expressed in the
exception clause. Let us restate it:
* * * Except such as are engaged in the disposal of products of the soil produced in
Nevada, poultry, eggs and live stock, and honey produced in Nevada and dairy products
produced in Nevada, which shall be exempt from the provisions of this act.
49 Nev. 336, 341 (1926) Thompsen v. Hancock
The legislature must be understood to mean what it has plainly expressed, and no
construction could be permitted to qualify the foregoing statement with an unexpressed
intention to limit the disposal of the products mentioned to the grower or producer. The
words are free from ambiguity and doubt. No mention is made of the grower or producer. By
the amendment of 1919 no substantial change is made in the section or exemption clause,
except that there is inserted in the latter after the phrase, products produced in Nevada, the
words, or in any other state where the vendor is a bona fide producer or grower. It will be
observed that the added words and phrases are unpunctuated and set off from the reenacted
part of the statute of 1915 by commas. The clause of the amendatory part of the statute,
where the vendor is a bona fide producer or grower, qualifies the amendment. It is a rule of
construction that relative and qualifying words and phrases, grammatically and legally, where
no contrary intention appears, refer solely to the last antecedent. Sutherland on Statutory
Construction, sec. 267. The antecedent of the word where is the word state, and plainly
the former refers solely to the latter as the locality in which the vender must be a bona fide
producer or grower. This is indicated by the comma after Nevada. Even if there were no
comma between Nevada and the other places mentioned, the word state would be the last
antecedent, and under the rule stated must be taken as referred to solely, unless a contrary
intention appeared. No such intention is apparent from the entire section. It would seem that,
if the legislature of 1919 intended by the amendatory statute to narrow the scope of the 1915
statute by requiring all venders to be bona fide producers or growers, it would have changed
the phraseology of the earlier statute to evidence that intent. If such had been the intention,
how easy and natural it would have been to have omitted the word Nevada, and said:
Products produced in any state where the vender is a bona fide producer or grower.
49 Nev. 336, 342 (1926) Thompsen v. Hancock
As we have stated, no substantial change was made in the phraseology of the 1915 statute
by the amendatory act, but merely a clause added which in itself clearly restricts the vending
without license of the products of other states to the producer or grower thereof. This being
the meaning of the statute, the acts charged against petitioner in the amended complaint
constituted no offense, and the evidence proved none, for the products alleged to have been
vended by him were Nevada products and shown to be such on his trial. The respondent court
was therefore without jurisdiction from the beginning, and has no jurisdiction to punish
petitioner for his lawful acts.
The alternative writ is made peremptory.
It is so ordered.
____________
49 Nev. 342, 342 (1926) Edwards v. Jones
EDWARDS v. JONES
No. 2716
June 5, 1926. 246 P. 688.
1. PleadingMotion for Judgment on Pleading Should Be Sustained when, Under Admitted
Facts of Pleading, Moving Party Would Be Entitled to Judgment on Merits.
Motion for judgment on pleadings raises question of law only, and should be sustained when, under
admitted facts of pleading, moving party would be entitled to judgment on merits.
2. JudgmentJudgment in Former Action Against Husband on Note, in which Wife
Testified as a Witness in His Behalf, Determining that Compensation for Wife's
Services to Plaintiff Was Community Property of Plaintiff and Husband, Held Res
Adjudicata of Her Subsequent Action to Recover for Such Services.
Judgment in former action on promissory note against husband, in which wife testified in his behalf,
determining that compensation for services rendered by wife to plaintiff was not her separate property,
but community property, held res adjudicata of her subsequent action against such plaintiff to recover for
such services.
3. Appeal and ErrorFinding that Compensation Sought To Be Recovered Was Community
Property Will Be Implied, where Directly Tendered in Former Action and Necessary for
Rendering Judgment Therein.
Where issue whether compensation due from defendant to plaintiff for services rendered was
separate property of plaintiff was directly tendered in former action on note by
defendant against plaintiff's husband, and judgment therein required determination
that it was community property, a finding to that effect will be implied.
49 Nev. 342, 343 (1926) Edwards v. Jones
plaintiff for services rendered was separate property of plaintiff was directly tendered in former action on
note by defendant against plaintiff's husband, and judgment therein required determination that it was
community property, a finding to that effect will be implied.
4. Appeal and ErrorAppellate Court Will Presume Findings of Lower Court to Have Been
Such as Were Necessary to Support Judgment.
Without express finding, it is duty of appellate court to presume findings of lower court to have been
such as were necessary to support judgment.
5. Appeal and ErrorWithout Request for Modification or Addition to Findings, they Are
Presumed Sufficient to Support Judgment, and Error in Making Findings Outside Issues
is Harmless.
Where appellant fails to move for addition or modification to findings as provided by civil practice
act, sec. 403, as amended by Stats. 1919, p. 319, findings are presumed to be sufficient to support
judgment, and error in making findings outside issues is harmless.
6. CourtsRehearing and Determination of Demurrer to Affirmative Defense to Amended
Answer, Containing Substantial Matter Not Embraced in Original Answer to which
Demurrer Had Been Sustained, Held Not Rehearing in Violation of Rule.
Where affirmative defense in amended answer contains substantial matter not embraced in affirmative
defense to original answer, which was stricken, hearing on demurrer to amended answer and overruling
of motion to strike affirmative defense held not a rehearing in violation of district court rule 11, subd. 4.
See (1) 31 Cyc. p. 606, n. 30 (new); (2) 34 C.J. sec. 1325, p. 915, n. 55; (3) 31 C.J. sec. 1270, p. 160, n. 23; (4,
5) 4 C.J. sec. 2722, p. 775, n. 29; sec. 2728, p. 778, n. 75; sec. 3041, p. 1057, n. 85; (6) 15 C.J. sec. 359,
p. 963, n. 47 (new).
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Action by Emily Gladys Edwards against Robert Jones. From a judgment for defendant,
and an order denying a new trial, plaintiff appeals. Affirmed.
Mack & Green and A.F. Lasher, for Appellant:
Respondent quotes from 31 C.J. 160 to effect that judgment in favor of or against husband
in action involving debt due community binds wife regardless of her nonjoinder, and
inserted stars to show omission of part of text which states that some courts hold where
wife was not party defendant in action wherein judgment was rendered against husband,
she is entitled to determination in proper proceeding of question whether judgment was
based on community liability.
49 Nev. 342, 344 (1926) Edwards v. Jones
her nonjoinder, and inserted stars to show omission of part of text which states that some
courts hold where wife was not party defendant in action wherein judgment was rendered
against husband, she is entitled to determination in proper proceeding of question whether
judgment was based on community liability. Such determination as to community is res
adjudicata where it is fairly in issue and both husband and wife are parties.
Whether claim is community debt or not may be determined in original action by making
wife defendant with husband, or wife may have determination by intervening, but if wife is
not party, she is not concluded, as to community character of debt by original judgment.
Woste v. Rugge, 122 P. 988.
To render matter res adjudicata there must be: Identity of thing sued for, of cause of action,
of persons and parties to action, and of quality in persons for or against whom claim is made.
Lyon v. Perin etc. Co., 31 L. Ed. 839.
One cannot be concluded by judgment in action unless he was formally party or privy, had
right to make defense, examine witnesses, control proceedings, and appeal. Litchfield v.
Crane, 31 L. Ed. 199.
Due process requires rights of person may not be adjudicated in action to which he is not
party. 12 C.J. 1227.
Court erred in making findings concerning matters not pleaded. Perkins v. Sierra etc. Co. 10
Nev. 405.
Huskey & Souter, for Respondent:
Judgment in favor of or against husband in action involving debt due community will bind
wife regardless of her nonjoinder. Where wife is not necessary party in actions against
husband affecting community real property, judgment against husband is binding on him,
wife, and community estate. 31 C.J. 160; Jordan v. Moore, 65 Tex. 366; Crow v. Van Sickle,
6 Nev. 146. Judgment in former case is binding on wife here because court found board
and lodging were furnished on behalf of community.
49 Nev. 342, 345 (1926) Edwards v. Jones
Judgment in former case is binding on wife here because court found board and lodging
were furnished on behalf of community. Person may be bound though not technically a party.
American Bonding Co. v. Loew, 92 P. 283, citing Shoemaker v. Finlayson, 60 P. 50, wherein
same court held person who was witness, fully acquainted with character and object of action
and interested in result, was estopped by judgment as fully as if he had been nominal party.
34 C.J. 992, 1009; Snavely v. Berman, 121 Atl. 843; Curtis Studio v. Lennes, 208 P. 81; Wise
v. Reed, 139 P. 753.
OPINION
By the Court, Ducker, J.:
Except where mentioned by their proper names, the parties will be referred to as plaintiff
and defendant.
Plaintiff brought this action in the lower court to recover from defendant the sum of
$1,550 alleged to be owing from him to her on account of board and lodging furnished him
by her at her home in Reno, Nevada, for a period of 31 weeks from November 1, 1920, to
June 5, 1921, and also for nursing, care, washing, and sewing done by plaintiff for defendant
during said period, all of which services are alleged to be reasonably worth the sum of $50
per week. It is also alleged in the amended complaint that plaintiff is the wife of Albert W.
Edwards. It is further alleged that during the whole of their married life plaintiff has been and
now is engaged in various ways of earning money and in accumulating property by the sale of
her own labor and services, and has frequently during their married life earned money by
supplying board and lodging to persons for a price in money; that during the whole of their
married life her husband has, and now does, let her appropriate all of said earnings to her own
use; that she has at all times and does now use all of said earnings and accumulations for the
care and maintenance of her family; that said family consists of her husband and their four
children; that it was at all times understood and agreed between said husband and wife
that any and all moneys due or to become due by reason of the services rendered
defendant belonged to plaintiff and should be collected and appropriated to her own use
and behoof; that by reason thereof her husband has no interest or right in the cause of
action set forth.
49 Nev. 342, 346 (1926) Edwards v. Jones
it was at all times understood and agreed between said husband and wife that any and all
moneys due or to become due by reason of the services rendered defendant belonged to
plaintiff and should be collected and appropriated to her own use and behoof; that by reason
thereof her husband has no interest or right in the cause of action set forth.
The husband was originally a party plaintiff in the action, but was subsequently, on motion
of the plaintiff, Emily Gladys Edwards, dismissed from the action by order of the court.
Defendant in his amended answer admits that Albert W. Edwards and Emily Gladys
Edwards are husband and wife, and denies all other allegations.
For a further and affirmative defense defendant in substance alleges: That from on or about
November 1, 1920, up to and including the 1st of June, 1921, defendant resided at the home
of Albert W. Edwards, husband of the plaintiff, where he, Edwards, maintained his family,
had his residence and abode, and conducted his household, and paid him the sum of $10 per
week for each and every week that defendant remained at said home; that defendant did not
request plaintiff to nurse him or care for him or provide him with room and board or to
perform all his needful sewing, nor did he in any way or manner whatsoever accept said
services from her, but, on the contrary, all of the services of any kind and description
whatsoever rendered to him while he was at said home during the period stated were
furnished him by her husband under an agreement whereby the defendant was to pay and did
pay the sum of $10 per weekwith all of which Edwards was fully satisfied, contented, and
paid.
For a further and second affirmative defense it is alleged in substance as follows: That
defendant filed his complaint in the district court against said Albert W. Edwards on or about
the 23d day of July, 1924, and in said complaint it is alleged that Edwards was indebted to
Jones on a promissory note, payment on account of which was admitted to have been paid by
Edwards of the sum of $330 for a period of 33 weeks at $10 per week; that Edwards filed
an answer in which he denies the payment; that a trial was had of said action, and it was
testified to before the court by Jones that from on or about November 1, 1920, up to and
including the 5th of June, 1921, he resided at the home of Edwards, where Edwards
maintained his residence and abode and conducted his household, and that by an
agreement between them it was provided that Jones should credit on account of said note
the sum of $10 per week for every week that he remained at the home of Edwards; that
Jones did credit the sum of $330 on account thereof; that said agreement provided also
that for one week ending March 1, 1920, during which Jones resided at the home of
Edwards a similar sum of $10 should be credited on said note, and was so credited.
49 Nev. 342, 347 (1926) Edwards v. Jones
the sum of $330 for a period of 33 weeks at $10 per week; that Edwards filed an answer in
which he denies the payment; that a trial was had of said action, and it was testified to before
the court by Jones that from on or about November 1, 1920, up to and including the 5th of
June, 1921, he resided at the home of Edwards, where Edwards maintained his residence and
abode and conducted his household, and that by an agreement between them it was provided
that Jones should credit on account of said note the sum of $10 per week for every week that
he remained at the home of Edwards; that Jones did credit the sum of $330 on account
thereof; that said agreement provided also that for one week ending March 1, 1920, during
which Jones resided at the home of Edwards a similar sum of $10 should be credited on said
note, and was so credited.
It is also alleged in the second affirmative defense that at said trial Edwards testified that
all services rendered to Jones for the times mentioned had been rendered by Mrs. Edwards,
and that by an agreement between them she was entitled in her own right and as her separate
estate, to any compensation for the board and lodging furnished Jones, and that no agreement
had been made, as alleged by Jones, to credit said sum on account of the note, and that
nothing had been paid on account of the note by reason of the rendering of said services to
Jones. It is also alleged that at the trial of said action Mrs. Edwards appeared as a witness
called by her husband, and as such witness was in court at the beginning of the trial and
during all of the time that Jones was on the stand, and had full and complete knowledge of
said action, the purpose for which it was brought, the claim made in said action by Jones as to
the payment on account of said note, the denial on the part of her husband of said payment
and the allegation by him that all services rendered to Jones had been rendered by her, and
that any compensation for such services, board, and lodging belonged to her separate and
distinct property and separate estate by an agreement made between the husband and wife;
that with all of such knowledge of the case and the issues involved, she understood that
the determination of such issues must result in a determination judicially of a matter
alleged to be her separate property and distinct estate; that she made no application to be
admitted as a party defendant to said suit, nor did she take any other steps to be
represented in said action except as a witness, and thereupon took the stand and under
oath, by her testimony, submitted to the court her statement that she was entitled to any
compensation for board and lodging furnished to Jones as her separate property and
estate.
49 Nev. 342, 348 (1926) Edwards v. Jones
the case and the issues involved, she understood that the determination of such issues must
result in a determination judicially of a matter alleged to be her separate property and distinct
estate; that she made no application to be admitted as a party defendant to said suit, nor did
she take any other steps to be represented in said action except as a witness, and thereupon
took the stand and under oath, by her testimony, submitted to the court her statement that she
was entitled to any compensation for board and lodging furnished to Jones as her separate
property and estate. It is further alleged that Edwards in said suit appeared by counsel; that
said suit was duly brought on for trial and tried; that as a result of all such proceedings,
pleadings, testimony, evidence, and trial, the issues were determined by this court in favor of
Jones and against Edwards, and by such determination the court determined that it had been
established as a fact that the agreement alleged to have been made by Jones and Edwards had
been actually made; that Edwards was entitled to all compensation for board and lodging of
Jones; and that said compensation was not the separate property and estate of Mrs. Edwards.
In this further and second affirmative defense the defendant refers to the proceedings in the
former action, and to all pleadings, transcript of testimony, orders, findings, decision, and
judgment therein, as if the same were set forth word for word.
It is further alleged that the last-mentioned suit involved all the issues involved in the
present suit, involved as parties Jones and Edwards and the latter's wife, plaintiff in the
present suit, in so far as it was a judicial determination of those rights which she sets up in the
present suit, involved the same subject matter, resulted in a final judgment on such issues in
favor of Jones, and was and is res adjudicata as to all matters and things and alleged causes of
action set forth in the amended complaint in the present action.
In her reply, inter alia, it is denied that the former action involved plaintiff in any other
manner than as a witness therein, and denied that it was res adjudicata as to all or as to any
of the matters and things and alleged causes of action set forth in the amended complaint
in the present action.
49 Nev. 342, 349 (1926) Edwards v. Jones
as to all or as to any of the matters and things and alleged causes of action set forth in the
amended complaint in the present action. It is admitted that she took the stand at the trial of
the former action, and under oath testified that she was entitled to the compensation for board
and lodgings furnished to Jones at the times and in the second affirmative defense mentioned
as her separate property, but denied that by her said testimony or in any manner at all
submitted to the court for determination as against her in said former action any question
concerning her title to the compensation for board and lodging furnished Jones, or any
question as to the character of said claim for compensation as her separate property.
It is alleged that plaintiff was not a party to the former action; that she was not named as a
party therein upon the record or upon any of the pleadings or documents filed therein; that she
was never served with summons in said former action; that she never, either directly or
indirectly, filed any demurrer, motion, petition, answer, stipulation, or other document or
pleadings therein; that she never employed or authorized any attorney or counsellor at law to
appear for or represent her in said former action, and never in any manner conducted or took
part in the conduct of said former action.
On motion of defendant for judgment on the pleadings, and after a hearing thereon, the
court made findings of fact and conclusions of law, and rendered judgment in favor of the
defendant, adjudging that the former suit was res adjudicata as to all matters and things and
alleged causes of action set forth in the amended complaint of Emily Gladys Edwards,
plaintiff in this action.
The facts found were substantially as alleged in the amended answer. From the judgment
and order denying a motion for a new trial this appeal is taken.
1. After her motion for a new trial had been denied, plaintiff moved to strike all of the
findings, which motion was denied by the court. The principal error assigned is that the court
erred in holding that the plaintiff was concluded as to her present cause of action by the
record of the prior action of Jones v. Edwards.
49 Nev. 342, 350 (1926) Edwards v. Jones
the record of the prior action of Jones v. Edwards. In this connection it is urged that the
amended answer does not state sufficient facts undenied by the reply to entitle defendant to a
judgment on the pleadings. A motion for judgment on the pleadings raises a question of law
only, and should be sustained, when, under the admitted facts of a pleading, the moving party
would be entitled to a judgment on the merits. 21 R.C.L. 594. In this case, however, in
considering the error assigned, we are not confined to the pleadings. It is stipulated by
counsel for the parties that the record on appeal in Jones v. Edwards may be considered and
examined by the court upon its consideration of this case.
It appears that counsel for plaintiff stipulated in the lower court that in considering the
motion for judgment the transcript of testimony in the case of Jones v. Edwards could be
considered. It appears also that the lower court took judicial notice of the former case and
considered the testimony given therein.
2. Plaintiff moved for a new trial, assigning as one of the grounds therefor insufficiency of
the evidence to justify the decision of the court. To all intents and purposes, then, the hearing
on motion for judgment on the pleadings devolved into a trial on the merits with the evidence
taken on the former trial stipulated as the evidence to be considered by the lower court. This
being the case, the question presented to us is not whether judgment was properly entered on
the pleadings, but whether the judgment in the former case is in fact res adjudicata of the facts
alleged in the amended complaint in this action. The question of fact presented by the
amended complaint in this action was in issue and was determined by the final judgment in
the former case, namely, that the compensation sought to be recovered for services rendered
Jones was not the separate property of plaintiff, but the community property of herself and
husband. The judgment in the former case has recently been affirmed by this court, and the
evidence is summarized in the opinion. Jones v. Edwards, 49 Nev. 299. That judgment was
an adjudication of the character of the property sought to be recovered here.
49 Nev. 342, 351 (1926) Edwards v. Jones
character of the property sought to be recovered here. It was said by this court in Vickers v.
Vickers, 45 Nev. 274, 199 P. 76, 202 P. 31:
It matters not the character of the proceeding in which issues are adjudicated, but whether
they have in fact been adjudicated between the same parties or their privies.
And in stating the principle to be applied this court in Vickers v. Vickers, supra, quotes
approvingly from the opinion in State of Oklahoma v. State of Texas, 256 U.S. 70, 41 S. Ct.
420, 65 L. Ed. 831, as follows:
The general principle, applied in numerous decisions of this court, and definitely accepted
in Southern Pacific R. Co. v. United States, 168 U.S. 1, 48, 49, 18 S. Ct. 18, 42 L. Ed. 355,
376, 377, is, that a question of fact or of law, distinctly put in issue and directly determined
by a court of competent jurisdiction as a ground of recovery or defense in a suit or action
between parties sui juris is conclusively settled, by the final judgment or decree therein, so
that it cannot be further litigated in a subsequent suit between the same parties or their
privies, whether the second suit be for the same or a different cause of action.
3. It is contended that, as the court in the former case made no finding that the
compensation due for the services rendered was community property, its character as such
was no determined. It is true no specific finding was made to that effect, but the issue was
directly tendered to the court by the testimony of the defendant and his wife, by which he
sought to show that the compensation due from Jones was her separate property, and the court
must necessarily have determined that it was community property to render judgment for
Jones in that case. The evidence tended to show that it was community property, and unless
the court found it to be such it was not subject to the husband's disposition as part payment on
the note sued on, and, unless payment was made as alleged, the note was barred by the statute
pleaded. Under this state of the case a finding that it was community property will be implied.
49 Nev. 342, 352 (1926) Edwards v. Jones
4. In the absence of an express finding it is the duty of the appellate court to presume the
findings of the lower court to have been such as were necessary to support the judgment.
Langworthy v. Coleman, 18 Nev. 440, 5 P. 65; Wilson v. Wilson, 23 Nev. 267, 45 P. 1009;
Stats. 1919, p. 319.
It is insisted that plaintiff was not a party to the former action, and the judgment therein is
not therefore conclusive against her, and many authorities are cited to the effect that only
parties of their privies can be bound by a former judgment. We need not answer this
contention further than to refer to our opinion in Jones v. Edwards, supra, wherein we held to
the effect that, as the community interests of the husband and wife were involved, she was in
legal effect a party to the action. There is no merit in the contention that the amended answer
fails to state facts sufficient to constitute a defense to the cause of action set forth in the
complaint.
5. Appellant insists that the court made findings outside of the issues in this case. He
moved the lower court to strike all of the findings, but made no application to the court for
additions to or modifications of the findings as provided by section 403 of the civil practice
act. This section, as amended by Stats. 1919, p. 319, reads:
In cases tried by the court, without a jury, no judgment shall be reversed for want of a
finding, or for a defective finding of the facts, unless exceptions be made in the court below
to the finding or to the want of a finding after application to the court for additions to or
modification of the findings with notice given to the adverse party as prescribed in section
285 of this act. Upon failure of the court on such application to remedy the alleged error, the
party moving shall be entitled to his exceptions.
By virtue of this statute, the appellant having failed to make application under it, we must
assume that the findings are sufficient to support the judgment. Consequently, if findings
were made outside the issues, the error would be harmless.
49 Nev. 342, 353 (1926) Edwards v. Jones
6. It is urged that the court erred in assuming to rehear and retry the same matter which had
already been heard and decided by the same court by Judge L.O. Hawkins, to whom all
matters before said court had been assigned. The following facts constitute the basis of this
complaint: The district judge above mentioned heard the plaintiff's demurrer to the
affirmative defenses in defendant's answer, made upon the ground that the same did not state
sufficient facts to constitute defenses to her cause of action, and also her motion to strike the
second affirmative defense. The demurrer to the second affirmative defense was sustained
and the motion granted, and defendant given ten days to file an amended answer. Thereafter
the amended answer was filed. Plaintiff demurred to the affirmative defenses contained
therein on the same ground as before. She also moved to strike the second affirmative
defense, stating, among the grounds therefor, that it was in all substantial respects identical
with the second affirmative defense theretofore stricken from the original answer, and in
contravention of subdivision 4 of rule 11 of the district court rules. The demurrer was
overruled and the motion denied by the trial court, Judge Geo. A. Bartlett, presiding. The
fourth subdivision of said rule reads as follows:
No motion once heard and disposed of shall be renewed in the same cause, nor shall the
same matter therein embraced be reheard, unless by leave of the court granted upon motion
therefor, after notice of such motion to adverse parties.
A sufficient answer to this contention is that the second affirmative defense in the
amended answer contains substantial matter not embraced in the former one, and the
rehearing and determination of it by the trial court was therefore not in violation of the rule.
The judgment is affirmed.
____________
49 Nev. 354, 354 (1926) State v. Sampson
STATE v. SAMPSON
No. 2731
June 5, 1926. 246 P. 530.
1. Criminal LawIn Prosecution for Assault with Intent to Kill, where Court Instructed Jury
They Might Also Find Accused Guilty of Assault with Deadly Weapon, Verdict of Guilty as Charged Is
Sufficient Finding of Guilt of Assault to Kill.
In prosecution for assault with intent to kill, under Rev. Laws, sec. 6413, where court instructed jury
they might also find accused guilty of assault with deadly weapon with intent to inflict bodily injury,
verdict of guilty as charged is sufficient finding that accused was guilty of assault with intent to kill;
sections 6290, 7218, providing jury shall specify degree of crime of which accused is guilty being
unavailable.
See 16 C.J. sec. 2600, p. 1110, n. 67.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
William T. Sampson was convicted of assault with intent to kill, and he appeals.
Affirmed.
Roberts & Scanlan and S.J. Parks, for Appellant:
Jury shall specify degree of attempt of which accused is guilty. Rev. Laws, 6290.
Whenever crime is distinguished into degrees, jury, if they convict, must find degree of
which accused is guilty. Rev. Laws, 7218.
Verdict must designate precise crime of which accused is convicted. 27 R.C.L. 862;
People v. Campbell, 40 Cal. 138.
Verdict of guilty under indictment for murder not expressly finding degree, though fixing
punishment, is fatally defective. Zaner v. State, 8 South. 698.
Verdict must within itself be sufficient to designate crime. Sanders v. State, 162 P. 676.
State v. Robb, 2 S.W. 1, and State v. Burke, 2 S.W. 10, Missouri cases, do not apply
because that state has statute which provides verdict shall state degree when verdict is for
inferior degree than charged.
In State v. Treadwell, 54 Kan. 513, verdict was guilty of burglary and larceny. Supreme
court sustained as to larceny, but reversed as to burglary because jury did not specify degree
of latter.
49 Nev. 354, 355 (1926) State v. Sampson
Accused is entitled to have verdict specify particular offense of which he is convicted. Ex
Parte Booth, 39 Nev. 197.
M.A. Diskin, Attorney-General; Wm. J. Forman, Deputy Attorney-General; L.D.
Summerfield, District Attorney; and H.L. Heward, Deputy District Attorney, for Respondent:
Appellant confuses degrees of a crime and included offenses.
Verdict upon plea of not guilty shall be either guilty or not guilty, which imports
conviction or acquittal of offense charged. Rev. Laws, 7216.
Statutes which require jury to fix degree apply only to crimes divided into degrees, not to
included offenses. Where such degrees do not exist, verdict of guilty as charged is proper. Ex
Parte Booth, 39 Nev. 183; 16 C.J. 1110.
Appellant's authorities deal with verdicts held invalid for not designating degree where
crimes were divided into degrees by statute.
OPINION
By the Court, Sanders, J.:
Appellant was charged by information with the crime of an assault with intent to kill
Thomas Ryan under section 6413, Revised Laws, which provides that:
An assault with intent to kill, * * * shall subject the offender to imprisonment in the state
prison for a term not less than one year, nor more than fourteen years; provided, * * * an
assault with a deadly weapon, instrument or other thing, with an intent to inflict upon the
person of another a bodily injury, where no considerable provocation appears, or where the
circumstances of the assault show an abandoned and malignant heart, shall subject the
offender to imprisonment in the state prison not less than one year or exceeding two years, or
to a fine not less than one thousand, nor exceeding five thousand dollars, or to both such fine
and imprisonment.
49 Nev. 354, 356 (1926) State v. Sampson
The jury were instructed as follows:
The court instructs the jury that if you find form the evidence beyond a reasonable doubt
that the defendant did, at the time and place and in the manner described in the information,
assault the said Thomas Ryan, with the intent to kill the said Thomas Ryan, you should find
the defendant guilty, as charged.
The court instructs the jury that if you believe from the evidence beyond a reasonable
doubt that the defendant did assault the said Thomas Ryan with a deadly weapon, but further
find that he had no intent to kill, nevertheless, you are privileged to convict the defendant of
the crime of assault with a deadly weapon with intent to inflict upon the person of another a
bodily injury. * * *
The jury returned this verdict:
We, the jury in the above-entitled action, do find the defendant, William T. Sampson,
guilty as charged.
The defendant moved in arrest of judgment, and also moved for a new trial. Both motions
were denied. Judgment was pronounced against him, and he was sentenced to state prison for
a period of not less than one year nor more than 14 years.
The main point made on appeal is that the motion in arrest of judgment should have been
sustained because the verdict did not specify the degree of the crime of which the defendant
was convicted. In support of this contention we are cited to the provisions contained in
section 6290 and section 7218, Revised Laws. Section 6290 provides:
Upon the trial of an indictment, the defendant may be convicted of the crime charged
therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so
charged, or of an attempt to commit a lesser degree of the same crime. Whenever the jury
shall find a verdict of guilty against a person so charged, they shall in their verdict specify the
degree or attempt of which the accused is guilty.
Section 7218 provides:
Whenever a crime is distinguished into degrees, the jury, if they convict the defendant,
must find the degree of the crime of which he is guilty."
49 Nev. 354, 357 (1926) State v. Sampson
jury, if they convict the defendant, must find the degree of the crime of which he is guilty.
We are of the opinion that these provisions of the law can apply only to those cases where
the offense is divided into degrees, as in murder, etc. But they do not apply to those cases
where the statute (section 6413, Rev. Laws) defines distinct offenses and does not declare
them degrees of the same offense. Where there are no degrees of the crime charged, a verdict
of guilty as charged is sufficient, although the crime charged also may include other crimes of
which the jury may have found defendant guilty. 16 Corpus Juris, 1110. Besides this, under
the information and the instructions, it is perfectly clear that the defendant was found guilty
of the crime of assault with intent to kill.
The judgment is affirmed.
____________
49 Nev. 357, 357 (1926) In Re Water Rights in Humbolt River
In Re WATER RIGHTS IN HUMBOLDT RIVER
No. 2712
June 5, 1926. 246. P. 692.
On Motion to Dismiss
1. WaterDistrict Court Has No Jurisdiction in Statutory Proceeding for Adjudication of
Water Users' Rights to Enjoin Taking or Diversion of Water.
Proceedings under water law, Stats. 1913, c. 140, as amended by Stats. 1915, c. 253, and Stats. 1921,
c. 106, to adjudicate rights of water users along river, is special, and water users are limited by plan
outlined in water law, secs. 33, 35, as amended by Stats. 1921, c. 106, secs. 5a, 5b, and sections 38 and
39, as amended by Stats. 1915, c. 253, secs. 8, 9, last of which authorizes stay of proceedings to protect
their rights, so that district court has no jurisdiction in such proceeding to enjoin taking or diversion of
water.
2. WaterRight to Use Public Waters in Nevada May Be Acquired by Appropriation for
Irrigation Purposes.
Doctrine of riparian rights is inapplicable to semiarid conditions prevailing in Nevada, and right to
use public waters in such state may be acquired by appropriation for irrigation purposes.
3. WaterNo Right to Appeal from Order Denying Injunction, Sought in Proceeding for
Adjudication of Water Rights, against Diversion of Water, Exists.
Proceeding under water law, as amended by Stats. 1915, c. 253, and Stats. 1921, c. 106, for
adjudication of rights of water users along river, being special statutory proceeding, no
right to appeal from order denying injunction prayed for therein against taking or
diversion of water exists, not being expressly conferred by statute.
49 Nev. 357, 358 (1926) In Re Water Rights in Humbolt River
water users along river, being special statutory proceeding, no right to appeal from order denying
injunction prayed for therein against taking or diversion of water exists, not being expressly conferred by
statute.
4. WaterAppeal from Order in Proceeding for Adjudication of Water Rights Denying
Injunction against Diversion of Water Held Unauthorized.
Water law, sec. 75, as amended by Stats. 1915, c. 253, sec. 13, authorizing review of order or
decision relating to administration of determined water rights by proceeding for that purpose, does not
give right of appeal from order denying injunction against taking or diversion of water.
See 40 Cyc. p. 701, n. 83; p. 737, n. 63, 64 (new); p. 738, n. 72 (new).
Appeal from Sixth Judicial District Court, Humboldt County; Geo. A. Bartlett, Judge.
In the matter of the determination of the relative rights of claimants and appropriators of
the water of the Humboldt River Stream System. From an order denying an injunction against
the Union Canal Ditch Company and others, and granting an injunction against the Old
Channel Ditch Company and others, the latter appeal. Appeal dismiss