Nevada Reports 1937-1938 (58 Nev.) PDF

58 Nev.
1, 1 (1937)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
VOLUME 58
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58 Nev. 1, 1 (1937) Los Angeles v. District Court
THE CITY OF LOS ANGELES, CALIFORNIA, A Municipal Corporation, and
DEPARTMENT OF WATER AND POWER OF LOS ANGELES, Petitioners, v. THE
EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA and HON.
WILLIAM E. ORR, Judge Thereof, Respondent.
No. 3187
May 6, 1937. 67 P. (2d) 1019.
1. Appearance.
In action against foreign municipal corporation wherein municipality appeared specially and moved to
quash service of summons on jurisdictional grounds, order extending time held not to convert special
appearance into a general appearance as against contention that municipality by availing itself of the
extension made a general appearance, irrespective of whether extension of time was made at instance of
municipality or by court on its own motion.
2. Prohibition.
In original proceeding for writ of prohibition to restrain district court from proceeding with action against
foreign municipal corporation after district court had denied municipality's motion to quash service of
summons, failure of municipality to take an exception to ruling of district court denying motion to quash
held immaterial since lack of an objection or exception in district court did not affect jurisdiction of
supreme court in the original proceeding or affect its discretion.
3. Prohibition.
Appeal from order denying foreign municipal corporation's motion to quash service of summons where
municipality had made a special appearance therefor held no to afford a plain, speedy, and adequate
remedy in the ordinary course of law so as to preclude issuance of writ of prohibition to restrain district
court from proceeding with action.
4. Corporations.
Foreign municipal corporation which had constructed an electric transmission line on public lands of the
United States located within state held not foreign corporation or incorporated company within general
statutes providing for service of process on nonresident companies owning property or doing business
within state, and hence service of summons on secretary of state in accordance with general statutes gave
lower court no jurisdiction over municipal corporation (Comp. Laws, sec. 8581; sec. 8579, as amended by
Stats. 1935, c. 20; sec. 8580, as amended by Stats. 1933, c. 150; Boulder Canyon Project Act, 43 U.S.C.A.
sec. 617-617t).
The term corporations is never construed to include municipal corporation. The term
company may include a corporation but not a municipality.
5. Statutes.
Supreme Court should not speculate beyond the reasonable import of words used in statutes.
6. Corporations.
Foreign municipal corporation which had constructed an electric transmission line on public lands of
United States located within state held not subject to service of summons under general statute applicable
to service of process on nonresident companies owning property or doing business within state on theory
that it came into state in its proprietary capacity (Comp. Laws. sec. 8581; sec. 8579, as amended by Stats.
1935, c. 20; sec. 8580, as amended by Stats. 1933, c. 150; Boulder Canyon Project Act, secs. 617-617t).
7. Municipal Corporations.
Statute providing that any municipal corporation entering state for purpose of doing business shall be
subject to laws of state relative to taxation, police regulations, and all laws specifically applicable to
particular business in which municipalities may engage that are applicable to foreign corporations doing
like business in state held not to authorize service of summons on foreign municipal corporation which
had constructed an electric transmission line on public lands of United States located within state in like
manner as on foreign corporations (Comp. Laws, sec. 8581; Stats. 1933, c. 107, sec. 4; Boulder Canyon
Project Act, 43 U.S.C.A. secs. 617-617t).
8. Appeal and Error.
Rule that a point made for the first time on appeal will not be considered by reviewing court
embraces only nonjurisdictional questions.
be considered by reviewing court embraces only nonjurisdictional questions.
9. Prohibition.
Rule that writ of prohibition will not issue to an inferior court unless attention of court whose proceedings
it is sought to arrest has been called to alleged lack or excess of jurisdiction, is not applicable where lack of
jurisdiction is apparent on face of proceedings.
10. Prohibition.
Whether petitioner for writ of prohibition to restrain district court from proceeding with action after
overruling motion to quash service of summons had complained of insufficiency or irregularity of service
on its motion in district court held immaterial in considering application for writ of prohibition where
insufficiency of service was due to lack of jurisdiction apparent on face of proceedings.
Original proceeding by City of Los Angeles, Calif., a municipal corporation, and another
for a writ of prohibition directed to the Eighth Judicial District Court of the State of Nevada
and the Honorable William E. Orr, judge thereof. Peremptory writ of prohibition issued as
prayed.
Ray L. Chesebro, City Attorney; S.B. Robinson, Chief Assistant City Attorney; Gilmore
Tillman, Deputy City Attorney; G. Ellsworth Meyer, Deputy City Attorney; and A.S.
Henderson, of Counsel, for Petitioners:
It would be an anomaly indeed if a court not having jurisdiction could acquire it by
granting an extension of time on its own motion. Such a rule would be as illogical as holding
that by erroneously denying a motion to quash service the court could acquire jurisdiction.
Such, of course, is not the rule. Pacific State, etc. v. Second Judicial District Court, 48 Nev.
53, 226 P. 1106.
We deem it elementary that prohibition is an original proceeding in this court, and, of
course, it follows that whether there was an exception taken in another court, or one allowed
by statute, is immaterial.
Appeal does not lie from an order refusing to quash service. Klepper v. Klepper, 51 Nev.
145, 271 P.336.
Prohibition will lie if an appeal from a judgment might waive the lack of jurisdiction.
might waive the lack of jurisdiction. Chaplin v. Superior Court, 81 Cal. App. 367, 253 P. 954.
Prohibition is the proper remedy to protect a defendant from the expense of an unnecessary
trial. Evans v. Superior Court, 107 Cal. App. 372, 290 P. 662; Dep't. of Public Works v.
Superior Court, 197 Cal. 215, 239 P. 1076; Davis v. Superior Court, 184 Cal. 691, 195 P.
390.
The Nevada statutes do not confer jurisdiction over a municipal corporation by service on
the secretary of state. Secs. 7579 and 8581 N.C.L. Statutes providing for constructive or
substituted service must be strictly construed. Perry v. District Court, 42 Nev. 284, 174 P.
1058; State v. State Bank, 37 Nev. 55, 139 P. 505.
A municipal corporation is not within the term corporation. City of Pasadena v. Railroad
Commission, 183 Cal. 526, 192 P. 25.
A municipal corporation does not become a private corporation by selling electrical energy
or discharging proprietary functions. City of Pasadena v. R.R. Comm., supra; Jochimsen v.
City of Los Angeles, 54 Cal. App. 715, 202 P. 902; L.A. Gas & Elec. Co. v. Dep't. of Public
Service of the City of Los Angeles, 52 Cal. App. 27, 197 P. 962.
A municipal corporation is not included in the general words of a statute. Mayrhoffer v.
Bd. of Education, 89 Cal. 110, Kubach v. McGuire, 199 Cal. 215, 248 P. 676; City of
Inglewood v. County of Los Angeles, 207 Cal. 697; City of Los Angeles v. County of Los
Angeles, 88 Cal. App. Dec. 228.
Harold M. Morse, C.D. Breeze and Guy E. Baker, for Respondents:
Prohibition will not lie where there is a plain, speedy, and adequate remedy in the ordinary
course of law. Sec. 9256 N.C.L.
Where petitioners requested, in their appearance in the respondent court, that the action be
dismissed as to them, their appearance was and is a general appearance, and they are in
that court for all purposes.
them, their appearance was and is a general appearance, and they are in that court for all
purposes. Webster v. Crump, 246 P. 243; Clawson v. Boston Acme Mines Dev. Co. et al.,
269 P. 147, 59 A.L.R. 1318; 2 Am. Jur. 793, sec. 19, n. 19; Elliott v. Lawhead (Ohio), 1 N.E.
577; Daily et al. v. Foster (N.M.), 128 P. 171.
The procuring by a defendant or the granting of extension of time to plead by a court, if
acted upon by a defendant, is a general appearance. It is immaterial at whose request or upon
whose motion the court made the ruling. Longcor v. Atlantic Terre Cotta Co. (Minn.), 142
N.W. 310.
We believe it well-settled law that an objection to the jurisdiction of the trial court must be
raised in the first instance in the trial court and cannot otherwise be made a basis for a writ of
prohibition. 22 R.C.L. 27, sec. 27; Havemeyer v. Superior Court, 84 Cal. 327, 24 P. 121;
Grinbaume v. Superior Court, 199 Cal. 741, 209 P. 1005.
It was necessary that petitioners preserve an exception to the ruling of the trial court
denying their motion to quash the service of summons. Secs. 8871 and 8874 N.C.L.; Burden
et al. v. Stephens (Okla.), 49 P. (2d) 1098.
When a municipality engages in the business of furnishing electric lights, water, etc., to the
public, it is not then discharging or exercising governmental functions or power, but is, quoad
hoc, exercising proprietary or business powers, and as to such business it is governed by the
same rules of law which are applicable to ordinary business corporations engaged in like
businesses. 6 McQuillin (2d ed.), p. 903, n. 44; Athens v. Miller (Ala.), 66 So. 702; Bennett
v. City of Portland (Ore.), 265 P. 433.
Petitioners did not complain in the lower court of any insufficiency or irregularity in the
manner of making the service, which service was made in strict accordance with the
provisions of sec. 8581 N.C.L. Stats.
1933, ch. 107, sec. 4, definitely defines the legal character of petitioners, and places them in
the same category as any other foreign corporation doing business in this state.
OPINION
By the Court, Ducker, J.:
This is an original proceeding in prohibition.
The petition, among other matters, shows: That petitioner City of Los Angeles, Calif., is a
municipal corporation organized and existing under and by virtue of the constitution and laws
of the State of California and has its domicile in the county of Los Angeles, State of
California.
That petitioner Department of Water and Power of the City of Los Angeles is a department
of the city of Los Angeles, a municipal corporation, and is organized and existing under and
by virtue of the constitution and laws of the State of California.
That petitioners under and in accordance with the Boulder Canyon Project Act of the
United States (43 U. S. C. A. secs. 617-617t), have constructed on the public lands of the
United States within the boundary of the State of Nevada an electrical transmission line
connecting the generating plant of the United States located at Boulder Dam with the electric
system of the city of Los Angeles in said city.
That on the 16th day of September 1935, Mamie Jackson, a citizen and resident of the
State of Georgia, caused to be filed in the above-entitled court a complaint, entitled, Mamie
Jackson, as Administratrix of the Estate of William B. Bush, deceased, Plaintiff, v. Daniel
Nicoll, Department of Water and Power of the City of Los Angeles, a municipal corporation,
and Bureau of Power and Light of the City of Los Angeles, a municipal corporation,
Defendants, in which plaintiff claimed damages because of the alleged wrongful death of
said deceased, in an automobile collision between an automobile being operated by him, and
an automobile being operated by defendant Daniel Nicoll, and which it was alleged was
owned and registered in California by said Department of Water and Power.
operated by defendant Daniel Nicoll, and which it was alleged was owned and registered in
California by said Department of Water and Power.
That on the 31st day of March 1936, an alias summons was issued in said action, a copy of
which, together with a copy of said complaint, was delivered to and left with the secretary of
state, or deputy secretary of state of Nevada, on the 22d day of April 1936.
That neither of petitioners was ever personally served with said summons or complaint,
not has any writ of attachment been issued or served, not has any order for, or publication of,
summons ever been made in said action.
That on the 6th day of June 1936, petitioner Department of Water and Power appeared
specially, and not generally, and moved respondents to quash said pretended service of
summons and complaint, for the reason that the complaint showed that said department was a
municipal corporation of the State of California, and the court had no jurisdiction over said
department, which motion was set for hearing before respondents, at which said
administratrix did appear by her attorneys of record and oppose the same on its merits. That
respondents denied said motion to quash.
That petitioners have not filed any answer, demurrer, or notice of appearance in said action
and have no plain, speedy, or adequate remedy at law by appeal or otherwise.
The petition also recites that respondents, unless restrained, will seek to exercise
jurisdiction over petitioner Department of Water and Power in said action and deprive
petitioners of their right to due process of law under the fourteenth amendment to the
constitution of the United States, and the equal protection of the laws under said amendment.
It is further alleged that the exercise of said jurisdiction by respondents is in violation of
article 1, section 8, of said constitution.
Upon the application the alternative writ of prohibition issued. Respondents interposed a
demurrer to the petition and made return and answer to the writ.
petition and made return and answer to the writ. Annexed to the latter is a certified copy of all
the pleadings, records, files, and minutes of the court in the action alleged in the petition.
Relative to the petitioner Department of Water and Power it is alleged in said complaint as
follows:
That at all times hereinafter mentioned, the defendant, Department of Water and Power of
the City of Los Angeles, was, and now is, a municipal corporation, duly created, organized
and existing under and by virtue of the laws of the State of California, and at all times had,
and now has, charge, superintendence and control of works for providing and supplying said
city and its inhabitants and others with electrical energy for light, heat, power and other
purposes, and at all said times was, and now is, constructing and erecting an electrical power
transmission line and other facilities in its proprietary capacity in the said County of Clark,
State of Nevada, for the transmission of electrical power and energy from the Boulder Dam in
said county and state to the City of Los Angeles for the purpose of supplying said city and its
inhabitants and others with electrical power and energy.
It is alleged in the complaint that said Daniel Nicoll at the time of said collision, which
occurred on a public highway, in said Clark County, was an employee of the other defendants
and acting within the scope of his employment in connection with the erection and
construction of said power transmission lines and other facilities.
The return and answer show that the default of defendant Daniel Nicoll was duly entered
in said action and that service of an alias summons issued therein, a copy of which, together
with a copy of the complaint, was, as alleged in the petition, delivered to and left with the
secretary of state or a deputy secretary of state of the State of Nevada. In connection with
such delivery, it is alleged that said secretary of state was served with process in said action
in the manner and form as by law provided.
process in said action in the manner and form as by law provided.
In connection with respondents' denial of the motion to quash the summons, as stated in
the petition, it is denied in the return and answer that the appearance of the petitioner
Department of Water and Power, on said motion, was a special appearance, and alleged that
the same was a general appearance. The return and answer also show that the motion to quash
was made upon the ground that said department is a municipal corporation of California and
that said action can only be brought in the courts of that state.
Counsel for respondents did not present any argument as to the demurrer and we are of the
opinion that it is without merit. It is overruled.
Petitioners contend that being municipal corporations of another state, respondents are
without jurisdiction of them, (1) because municipal corporations can be sued only in the state
of their situs, and (2) because the Nevada statutes do not confer jurisdiction over a municipal
corporation by service on the secretary of state.
1. We will first dispose of some objections made by respondents. They contend petitioner
Department of Water and Power made a general appearance on the motion to quash. We think
not. No relief was sought by the motion other than on jurisdictional grounds. In fact, counsel
for respondents in the argument in this court abandoned the position that the appearance on
the motion itself was general, but contend that an order of the court made when the motion to
quash was submitted for decision has that effect. The order relied on reads:
The court at this time stated it would extend counsel for the defendants ten days after the
decision of said motion, in which to further plead, if necessary.
Whether the extension of time was made at the instance of petitioner or by the court on its
own motion does not appear.
Respondents contend, however, that this is immaterial; and that petitioner, by availing
itself of the extension, made a general appearance.
and that petitioner, by availing itself of the extension, made a general appearance. The case of
Longcor v. Atlantic Terra Cotta Co., 122 Minn. 245, 142 N. W. 310, 312, cited in support of
this contention, does not sustain it, but holds to the contrary. In that case a petition and
motion stated a special appearance for the purpose of excepting to the service of summons
and complaint were presented and the court made an order for plaintiff to show cause why the
same should not be set aside. The order also enlarged the time for answering in the event of
the service being held sufficient. It does not appear whether the extension of time to answer
was made at the request of defendant or on the court's own motion. The supreme court said
this was immaterial, and held there was no general appearance. The court also said:
* * * when objection to the jurisdiction is clearly made, the mere fact that he [defendant]
is given and accepts an enlargement of the time to answer until his motion is disposed of
cannot be held to be inconsistent with such objection, nor can it be said that he thereby
assumed that jurisdiction exists. Any other rule would be altogether too technical for the
practical administration of justice.
We are of the same opinion and hold that the order extending time in the instant case did
not convert the special appearance into a general one.
2. Another objection is that petitioners did not take an exception to the ruling of the court
denying the motion to quash the summons. We think the failure to take exception is
immaterial. This is an original proceeding and the lack of objection or exception in the lower
court could in nowise affect the jurisdiction of this court, nor do we perceive why it should
influence our discretion. The case of Burden et al. v. Stephens, 174 Okl. 312, 49 P. (2d) 1098,
cited by respondents was not an original proceeding. It is not in point or analogous.
3. Respondents state in their brief that prohibition will not lie where there is a plain,
speedy, and adequate remedy in the ordinary course of law.
will not lie where there is a plain, speedy, and adequate remedy in the ordinary course of law.
They present no argument to show that such a remedy is or was available to petitioners, but
content themselves with the above statement and citation of the statute so providing. There is
no such remedy by appeal from the order denying the motion to quash, Klepper v. Klepper,
51 Nev. 145, 271 P. 336, and we are aware of none with the statutory description.
4, 5. Has the lower court jurisdiction of the petitioner Department of Water and Power?
Unless the service of summons on the secretary of state constituted service on that
department, the court has no jurisdiction, for no other service is claimed. There is no statute
in this state providing specifically for service of summons on a foreign municipal corporation.
If such service is contemplated, it must be found within the intention of sections 8579, 8580,
and 8581 of the Nevada Compiled Laws. The former, as amended, Stats. 1935, c. 20, p. 26,
reads in part:
The summons must be served by delivering a copy thereof attached to a certified copy of
the complaint as follows: * * * 2. If the suit is against a foreign corporation, or a non-resident
joint-stock company or association, doing business and having a managing or business agent,
cashier, or secretary within this state; to such agent, cashier, or secretary, or to an agent
designated in section 82: or in the event no such agent is designated as provided in section 82,
to the secretary of state or the deputy secretary of state, as provided in section 83.
Section 8580 prescribes that :
Every incorporated company or association created and existing under the laws of any
other state, or territory, or foreign government, or the government of the United States,
owning property or doing business in this state, shall appoint and keep in this state an agent
upon whom all legal process may be served for such corporation or association. Such
corporation shall file a certificate, properly authenticated by the proper officers of such
company, with the secretary of state, specifying the full name and residence of such
agent."
certificate, properly authenticated by the proper officers of such company, with the secretary
of state, specifying the full name and residence of such agent.
The latter section provides:
If any such company shall fail to appoint such agent, or fail to file such certificate for
fifteen days after a vacancy occurs in such agency, on the production of a certificate of the
secretary of state showing either fact, which certificate shall be conclusive evidence of the
fact so certified to be made a part of return of service, it shall be lawful to serve such
company with any and all legal process, by delivering a copy to the secretary of state, or, in
his absence, to any duly appointed and acting deputy secretary of state, and such service shall
be valid to all intents and purposes: * * * provided, further, that before such service shall be
authorized, the plaintiff shall make or cause to be made and filed, an affidavit setting forth the
facts, showing that due diligence has been used to ascertain the whereabouts of the officers of
such corporation, and the facts showing that direct or personal service on, or notice to, such
corporation cannot be had; and provided further, that if it shall appear from such affidavit
that there is a last-known address of such corporation, or any known officer thereof, the
plaintiff shall, in addition to and after such service on the secretary of state, mail or cause to
be mailed to such corporation, or to such known officer, at such address, by registered mail, a
copy of the summons and a certified copy of the complaint, and in all such cases the
defendant shall have forty days from the date of such mailing within which to appear in said
action. This section shall be construed as giving an additional mode and manner of serving
process, and as not affecting the validity of any other valid service.
The return and answer show that the plaintiff complied with the latter section in all
respects, and respondents therefore claim that a valid service of summons was effected on
petitioner Department of Water and Power.
Are the words foreign corporations and incorporated company found in the foregoing
sections meant to include foreign municipal corporations? We think they will not bear that
construction. The word corporations is never construed to include municipal corporations.
It is uniformly conceded that the general statute regulating service upon corporations has no
application to municipal corporations, and in the absence of an express statute in reference
thereto service must be made in accordance with the common law. 20 Standard Ency. of Prac.
p. 100; People ex rel. Howard v. Cairo, Ill., 50 Ill. 154; Cloud v. Pierce City, 86 Mo. 357.
Our legislature left no doubt on this score as to resident municipal corporations, for, after
providing in said section 8579, as amended, for the manner of service of summons in a suit
against a corporation formed under the laws of this state, it provided specifically in the same
section for service of summons on a resident municipal corporation. In this respect the statute
provides:
5. If against a county, city, or town, to the chairman of the board of commissioners,
president of the council or trustees, mayor of the city, or other head of the legislative
department thereof.
As these sections were enacted contemporaneously, what reason exists for believing that
the legislature intended the word corporations when employed as to corporations of other
states to be more comprehensive and include municipalities of such other states? None that
we can perceive. Besides, in sections 8580 and 8581, the legislature refers to a foreign
corporation as designated in section 8579, as a company, and while a proper signification of
the word company may include a corporation, it is not to be taken in the sense of a
municipality. The intention of the legislature should be derived from the sections mentioned,
and we should not speculate beyond the reasonable import of words.
We are referred to no authorities which hold that the word company may include a
municipality.
6. The argument that the petitioner must be classed as a private corporation, because, as
contended by respondents, it came into this state in a proprietary capacity is altogether
too tenuous.
as a private corporation, because, as contended by respondents, it came into this state in a
proprietary capacity is altogether too tenuous. If the legislature had intended the section to
apply to a foreign municipal corporation when exercising a particular class of powers, it
probably would have made such distinction apparent.
7. Respondents say that while section 8581 N. C. L. would of itself be sufficient to
authorize service upon the petitioner Department of Water and Power, section 4 of chapter
107, Stats. 1933, definitely defines its legal character and places it in the same category as any
other foreign corporation doing business in this state. They quote the section.
Any such municipal corporation so entering this state for the purpose of doing business
herein shall be subject to the laws of this state relative to taxation, police regulations, and all
laws and reasonable regulations specifically applicable to any particular business or activity
in which such municipalities may engage, as the same are now, or hereafter may be made,
that are applicable to foreign corporations doing like or similar business or work in this
state.
We see no help for respondents' position in this statute. It does not provide for service of
process on a foreign municipal corporation by serving the secretary of state or otherwise.
Moreover, it is a legislative expression that foreign municipal corporations are not considered
included in the term foreign corporations, for they are distinguished, and certain laws of
the state applicable to the latter are made applicable to the former.
8-10. It is contended by respondent that petitioner may not in this proceeding question the
validity of the service because it did not complain of any insufficiency or irregularity of such
service in the court below. Petitioner asserts that, while its argument there was devoted
almost exclusively to the contention that it could be sued only in the county of its situs, that it
was stated in the briefs in the trial court that petitioner did not concede the validity of the
attempted service on the secretary of state.
secretary of state. The fact of the matter is immaterial. While this court has uniformly held
that a point made for the first time on appeal will not be considered, the rule embraces only
nonjurisdictional questions. Allen v. Ingalls, 33 Nev. 281, 282, 287, 111 P. 34, 114 P. 758,
Ann Cas. 1913e, 755. Moreover, the general rule quoted by respondents from 22 R.C.L. p.
27, that a writ of prohibition will not be issued to an inferior court unless the attention of the
court whose proceedings it is sought to arrest has been called to the alleged lack or excess of
jurisdiction is subject to several exceptions. One of these is where lack of jurisdiction is
apparent on the face of the proceedings. 22 R.C.L. p. 28: Havemeyer v. Superior Court, 84
Cal. 327, 24 P. 121, 10 L.R.A. 627, 18 Am. St. Rep. 192; St. Louis, etc., R. Co. v. Wear, 135
Mo. 320, 36 S. W. 357, 658, 33 L.R.A. 341. This proceeding falls within that exception.
As the lower court is without jurisdiction for the reasons stated, it is unnecessary to
determine petitioners' other point, that a municipal corporation is suable only in the state of
its situs.
It is ordered that a peremptory writ of prohibition issue restraining the said Eighth judicial
district court and judge thereof from further proceeding in said action.
On Petition for Rehearing
August 10,1937.
Per Curiam:
Rehearing denied.
____________
58 Nev. 16, 16 (1937) Nevada Industrial Comm'n v. Leonard
NEVADA INDUSTRIAL COMMISSION, Appellant, v. BEULAH H. LEONARD and
JOHN D. LEONARD, Her Husband, Respondents.
No. 3164
May 28, 1937. 68 P.(2d) 576.
1. Workmen's Compensation.
A teacher's testimony that she was watching her step at time of accident did not require finding that
teacher was not observing children on school grounds as required by statute, as respects whether injury was
compensable as arising out of and in course of employment (Comp. Laws, sec. 5687, subd. 5).
A school district which has accepted terms of compensation act prior to teacher's accident was an
employer, and teacher was an employee within terms of the act (Comp. Laws, sec. 2688).
3. Schools and School Districts.
A statute requiring teachers to hold pupils to strict accountability for their conduct to and from school and
on playgrounds and during intermissions requires teachers to observe conduct of pupils (Comp. Laws, sec.
5687, subd. 5).
Injuries resulting from a teacher's fall on rock in road near school while going from home to school
arose out of and in course of her employment so as to be compensable, where teacher was observing
children on school grounds or on their way to school as required by Statute (Comp. Laws, sec. 5687, subd.
5).
A teacher injured while walking to school is entitled to compensation, if injuries arise out of and in
course of her employment, notwithstanding that industrial commission's classification of risks for teachers
does not include transportation hazards (Comp. Laws, secs. 2683, 2702, 2703).
Appeal from Second Judicial District Court, Washoe County; B.F. Curler, Judge.
Proceeding under the workmen's compensation law by Beulah H. Leonard, claimant, and
John D. Leonard, her husband, opposed by the Nevada Industrial Commission. From a
judgment awarding compensation to the plaintiffs and orders refusing to modify the findings
of fact and denying a motion for new trial, the Nevada Industrial Commission appeals.
Judgment and orders affirmed.
George L. Sanford, for Appellant:
The Nevada industrial commission had authority and the duty to classify the hazards and
risks of industry and fix rates accordingly, under sections 21(a), 21(b), and 22 of the act. The
commission classified school teacher employments and assigned to them a higher rate of
premium than applied in other cases, to insure teachers exposed to transportation hazards and
protected against transportation hazards, than the rate for teachers not so exposed. The
industrial insurance act, in section 3(a), binds all accepting its terms, and is exclusive. It
constitutes a contract between the employer, the employee, and the state (sec. 1 [d]).
Inasmuch as in the case of school districts and school teachers the act is conclusive,
compulsory, and obligatory, the contract is more firmly entrenched than if election to accept
were optional, and the employee must accept compensation in the manner provided by the
act. Thus, she must be content to have her right to compensation limited to compensation for
injuries arising out of hazards recognized by the commission through rules of classification
and rates of premiums adopted pursuant to the power delegated to the commission by the act
itself. Such a delegation of power to fill in the details has been held proper. Ginocchio v.
Shaughnessy, 47 Nev. 129, 217 P. 581; United States v. Grimaud, 220 U.S. 506, 55 L. Ed.
563. The hazards of travel accidents was not a hazard against which plaintiff Beulah H.
Leonard was protected, as a matter of fact.
It is the contention of appellant, upon the facts, that Mrs. Leonard was disabled by an
injury occurring out of work time, away from her work place, and accidentally suffered when
she was doing no act she was hired to do for her employer, and no act which was reasonably
proximate or incident to the work she was employed to do for her employer, in respect of the
time, place or character of such act. There was no relation of cause and effect between the
injury accidentally sustained and her proper work or any hazard or risk of her proper work,
and no such relation of cause and effect could be foreknown or can be afterknown or
realized.
work, and no such relation of cause and effect could be foreknown or can be afterknown or
realized. It was an ordinary street accident sustained in going to work, not to be attributed to
any employment, and was not compensable as a matter of fact. Mrs. Leonard was not even
in the service of an employer, as defined by sections 7 1/2 and 7 1/2(a) of the act, at the
time of the injury. The last service she performed for the employer before the injury was on
the preceding Friday evening, when she finished her school work and left the schoolhouse
and did not thereafter resume it.
At the time and place of the injury, Mrs. Leonard was watching her step and not watching
the school children.
J. A. Sanders and Wm. McKnight, for Respondents:
The injuries involved in this case arose out of and in the course of the employment,
because:
(a) Mrs. Leonard was actually engaged in the performance of her statutory and contractual
duties at the time of her injury. Sec. 5687 N. C. L.; Scrivner v. Franklin School District, 50
Ida. 109, 293 P. 666; Logue v. Independent School District, 53 Ida. 44, 21 P. (2d) 534.
(b) If not actually engaged in the performance of her contractual and statutory duties at the
time of the injury, Mrs. Leonard was at least upon the premises of her employer, or at a place
so close thereto as to be considered a part thereof, for the purpose of commencing her work in
the schoolroom. 49 A .L. R. 426 (n.); 82 A. L. R. 1044 (sup. n.); 71 C. J. p. 716, sec. 445, nn.
71-73; Judson Manufacturing Co. v. Industrial Accident Commission, 181 Cal. 300, 184 P. 1.
(c) Even though Mrs. Leonard was not on the premises of her employer, or at a place so
close thereto as to be considered a part thereof, or doing anything except walking to
commence her work, she was certainly within the sphere or zone of her employment in the
schoolroom. Industrial Commission v. Barber, 117 Ohio St. 373, 159 N. E. 363; Barnett v.
Britling Cafeteria Co., 225 Ala. 462, 143 So. 813, 85 A. L. R. 85; Redner v. H. C. Faber &
Sons, 1S0 App.
& Sons, 180 App. Div. 127, 167 N. Y. S. 242; Bountiful Brick Co. v. Giles, 276 U. S. 154, 48
Supp. Ct. 221, 72 L. Ed. 507; Procaccino v. E. Horton & Sons, 95 Conn. 408, 111 Atl. 596;
Texas Employers' Ins. Ass'n. v. Boecher (Tex. Civ. App.), 53 S. W. (2d) 327.
(d) Even though Mrs. Leonard was not actually engaged in the performance of her
statutory or contractual duties, or on the premises of her employer or at a place so close
thereto as to be considered a part thereof, or within the sphere or zone of her employment in
the schoolroom, she was certainly on the way from her home to perform some special service
or errand or discharge some duty incidental to the nature of her employment, in the interest
of, or under the direction of, her employer. Kyle v. Greene High School, 208 Iowa 1037, 226
N. W. 71; Massey v. Board of Education, 204 N. C. 193, 167 S. E. 695; Mann v. Board of
Education, 266 Mich. 271, 253 N. W. 294; Stockley v. School District, 231 Mich. 523, 204
N.W. 715; Scrivner v. Franklin School District, supra; Chandler v. Industrial Commission, 60
Utah 387, 208 P. 499; Lake v. City of Bridgeport, 102 Conn. 337, 128 Atl. 782.
(e) There was a casual connection between the injury and the employment. Cudahy
Packing Co. v. Parramore, 263 U. S. 418, 68 L. Ed. 366.
The arbitrary classification of rates by the Nevada industrial commission will not prevent
the payment of compensation, because liability for compensation is neither contractual nor
tortious, but grows out of a status which in turn springs from the hiring by operation of law.
Hall v. Industrial Commission of Ohio (Ohio App.), 3 N. E. (2d) 367, 371, 635, 637.
OPINION
By the Court, Taber, J.:
This is an appeal from a judgment of the Second judicial district court, Washoe County,
department No.
2, and from orders of that court refusing to modify the findings of fact and denying a motion
for new trial. Appellant was defendant in the court below. John D. Leonard was joined as a
party plaintiff because he was the husband of plaintiff Beulah H. Leonard.
On the morning of April 9, 1934, Mrs. Leonard, a teacher employed in the public school at
Gerlach, while walking home from her home to school, fell, breaking her hip. Her claim for
compensation was denied by the industrial commission, whereupon suit was brought in said
district court, which, after trial without a jury, rendered judgment, awarding compensation to
plaintiffs in the sum of $5,341.79. It was stipulated at the trial that said amount should be
awarded in the event plaintiffs recovered judgment.
The public school buildings at Gerlach are situated on land leased from the Western
Pacific Railroad Company. The school grounds are inclosed by a wire fence, in which the
only openings are gates affording entrance to and exit from the school grounds. The inclosure
around the school buildings is 304 feet long and 159 1/2 feet wide. The school grounds and
buildings run in a general northeasterly and southwesterly direction. In entering the grounds,
one goes in a northwesterly direction. In speaking of the aforesaid directions, it is the custom
of the residents of Gerlach to designate the southeasterly fence of the inclosure as the south,
the opposite fence as the north, and the two end fences as east and west, respectively. For the
sake of brevity, the latter designations will be used herein. The actual inclosure around the
school buildings does not conform to the boundaries described in the lease. The fences are
somewhat to the north and west of the corresponding lines of the parcel of land described in
the lease. The greater part of the ground described in the lease is included within the fencing
actually inclosing the school grounds.
No plat of Gerlach has been filed with the county recorder of Washoe County, and the
thoroughfares used by the public are not named.
by the public are not named. No formal dedication of said thoroughfares has ever been made.
The school grounds and buildings are on the north and east outskirts of the town, and there
are several thoroughfares approaching them from the south and west. These thoroughfares
serve the same practical purposes as would legally platted and dedicated streets. There are no
pavements or cement sidewalks at Gerlach.
The home of the Leonards was about a quarter of a mile, or perhaps a little more, in a
southwesterly direction from the schoolabout ten minutes' walk. At about 8:30 a.m., or
perhaps a few minutes before that time, on the morning of said 9th day of April 1934, Mrs.
Leonard left her home for the sole purpose of going to the schoolhouse, there to make
preparations for teaching her classes and to ring the school bell at 8:45. The teachers were
expected to arrive at the schoolhouse each morning about 8:30. Along the south fence of the
inclosure around the school grounds, and just outside thereof, there is an open road or
thoroughfare without sidewalks or pavement. According to Miss Armbruster, this was the
only place to walk or drive cars in approaching the school gate from the west. There were
numerous stones in and upon the ground along this thoroughfare, and indeed in that vicinity
generally. Most of these stones were wholly embedded in the ground, but many of them
projected above the surface. There were also many stones lying loose on the surface of the
ground.
Accompanying Mrs. Leonard were her eleven-year-old twin daughters, who were pupils in
the seventh grade. After Mrs. Leonard and her children had passed the southwest corner of
the school grounds, and while they were walking between that point and the entrance gate, the
heel on her left shoe slipped on one of the stones and she fell to the ground, breaking her hip.
The accident happened less than 10 feet distant from the south fence, and while Mrs. Leonard
and her children were walking in the customary and natural place on their way to the
entrance gate.
to the entrance gate. There was some testimony that the accident happened within the
boundaries of the land leased to the Gerlach school district, as said land is described in the
lease hereinbefore mentioned; but in our opinion the trial court was correct in its finding that
the accident happened on ground not included within said leased land, nor within the actual
wire fence inclosure of the school grounds. As we read the record, the testimony indicates
clearly that the accident happened from 10 to 15 feet west of the west boundary of the land as
describes in the lease. This would place the scene of the accident at a point approximately 40
feet east of the southwest corner of the actual school inclosure, and approximately 125 feet
west from the gate, which at that time was the only place used as the entrance to and exit
from the school grounds.
It was between 8:35 and 8:40 a.m. when the accident happened. At the time of the
accident, and just prior thereto, two boys were on the school grounds, one of them playing
with a basketball and the other at the giant stride. Mrs. Leonard testified that she was
watching these boys just prior to, and at the time of the accident. I was watching the conduct
of children on the way to school, watching the conduct of the children on the school grounds
and going to the school to prepare lessons, as well as watching the school property and
children in the school grounds and in the school building. Besides Mrs. Leonard's daughters
and the two boys playing on the school grounds, there was a little girl coming to school,
playing around the schoolhouse. After the accident, this little girl helped one of Mrs.
Leonard's daughters pick up some of the papers dropped when she fell.
On cross-examination, Mrs. Leonard testified that as she was going along near the fence
that morning she was watching her step in order to avoid the rocks. Q. And you were
watching your step at the time this accident occurred? A. Yes.
As Mrs. Leonard came along by the fence just before the accident, she saw another
teacher, Mr. Lucas, enter the school buildings, and the other teacher, Miss Armbruster, was
the first person to come to where she was lying immediately after the accident. In
approaching the school grounds, Mrs. Leonard was following her customary pathway,
because, as she testified, it was the least covered with rocks.
Mrs. Leonard was the high school teacher, but besides teaching history, Latin, and English
in high school, she also taught history to the fourth, fifth, sixth, and seventh grades in the
elementary school.
In leaving her home on the morning of the accident, it was Mrs. Leonard's intention to do
just what she had been accustomed to doing in the past while employed as a teacher in the
Gerlach school; that is, to observe the children along the way, to prepare for her classes upon
arrival at the schoolhouse, and to ring the school bell at 8:45.
1. Because Mrs. Leonard, on cross-examination, testified that at the time of the accident
she was watching her step, appellant argues that she could not at the same time have been
observing children on the school grounds or on their way to school. This does not appeal to us
as being a fair construction of all the testimony, which, in our opinion, justifies the finding of
the trial court that, besides walking carefully, Mrs. Leonard was watching the two boys
playing on the school grounds.
There is left for our consideration the single question whether Mrs. Leonard's injury arose
out of and in the course of her employment.
Section 1 of the Nevada industrial insurance act (section 2680 N. C. L. 1929) reads:
When, as in this act provided, an employer shall accept the terms of this act and be governed
by its provisions, every such employer shall be conclusively presumed to have elected to
provide, secure and pay compensation according to the terms, conditions, and provisions of
this act for any and all personal injuries by accident sustained by an employee arising out
of and in the course of the employment; and in such cases the employer shall be relieved
from other liability for recovery of damages or other compensation for such personal
injury, unless by the terms of this act otherwise provided."
and all personal injuries by accident sustained by an employee arising out of and in the course
of the employment; and in such cases the employer shall be relieved from other liability for
recovery of damages or other compensation for such personal injury, unless by the terms of
this act otherwise provided.
2. The Gerlach school district accepted the terms of said act some time prior to the
accident involved in this case. We are satisfied that at the time of the injury the school district
was an employer and Mrs. Leonard an employee, as those terms are used in sections 7 1/2 and
7 1/2(a) of said act (section 2688 N. C. L. 1929).
Section 39 of the act concerning public schools (section 5687 N. C. L. 1929) provides that
every teacher in the public schools shall: * * * 5. Hold pupils to a strict account for their
conduct on the way to and from school, on the playground, and during any intermission.
Appellant relies chiefly on its third and fourth assignments of error. In said third
assignment, appellant contends that the district court erred: In making the findings of fact on
insufficient evidence and with no substantial evidence in support thereof and against the
evidence. In finding as a fact that at the time and place of the injury Beulah H. Leonard,
plaintiff, was doing something reasonably incident and proximate thereto in point of
character, time and place.
In said fourth assignment of error appellant complains that the trial court erred: In
concluding as a matter of law, contrary to law and against law, that the said plaintiff's injury
(1) happened in the course of employment and also (2) arose out of employment.
The positions of the respective parties have been fully and ably presented by counsel.
Many of the cases cited have not been helpful because of the absence of a statutory provision
such as that hereinbefore quoted from section 5687 N. C. L. 1929. On the other hand, some of
the cases cited in behalf of respondents have been of little assistance, for the reason that this
is not a "special mission," "special service," "special errand," or "emergency call" case.
special mission, special service, special errand, or emergency call case.
A case presenting facts very similar to those in this case, and a statute similar to the
Nevada prescribing the duties of public school teachers, is that of Logue v. Independent
School District No. 33, 53 Idaho 44, 21 P. (2d) 534, 535.
In that case it appeared that a school teacher, while walking from her home to the
schoolhouse, about one and one-half blocks, fell and broke her hip. The sole question in the
case was whether the accident arose out of and in the course of her employment as school
teacher. Amongst other things, the evidence showed that on the morning of the accident the
weather was stormy and snowy, and the sidewalks slippery; that the teacher was going to the
schoolhouse to begin her duties in the schoolroom; that immediately prior to and at the time
of the accident she was watching some school children who were snowballing; and that,
while their conduct was not such as to call for a reprimand or a report in regard thereto, she
was watching their conduct, and was also on the lookout to observe any other pupils on their
way to school.
The Idaho statute (Code Idaho, 1932, secs. 32-1003) required school teachers to * * *
holds pupils to a strict account for disorderly conduct or improper language in or about the
building, on the playgrounds, and on the way to and from school.
In the course of its opinion the court, in Logue v. Independent School District No. 33,
supra, said: Even though respondent did not at the time find it necessary to discipline any
pupils, or notice conduct which would require a report, she was in a position to do so, and
was engaged in observing school children for that purpose, and the circumstances in the two
authorities following are sufficiently in point to support the conclusion that she was within
the scope of her employment, and actively engaged in her duties expressly imposed upon her
by the statutes and the rules, Colorado Contracting Co. v.
statutes and the rules, Colorado Contracting Co. v. Industrial Commission, 74 Colo. 206, 219
P. 1075; Empire Health & Acc. Ins. Co. v. Purcell, 76 Ind. App. 551, 132 N. E. 664, and that
the accident arose in the course of, and out of her employment, Zeier v. Boise Transfer Co.,
43 Idaho 549, 254 P. 209; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S. W.
(2d) 128.
3, 4. We are clearly of the opinion that the Nevada statute requiring public school teachers
to hold pupils to a strict account for their conduct on the way to and from school, and on the
playground and during any intermission, imposes upon such teachers, not merely the duty of
disciplining pupils after learning of any misconduct on their part, but the further duty of
observing their conduct to the end that they may be properly dealt with in the event of any
misconduct. It is not sufficient under this statute, that teachers apply disciplinary measures to
pupils whose misconduct may be reported to them or may come under their observation by
mere chance. The duty of teachers, under said statute, extends further than this, and they
must, to a reasonable extent, watch the pupils for the purpose of seeing to it that their
conduct, while on their way to and from school, on the playgrounds, and during all
intermissions, is proper.
5. Appellant calls our attention to sections 3(a), 21(a), 21(b), and 22(a) of the industrial
insurance act (sections 2683, 2702, 2703 N.C.L. 1929). It contends that the hazards of a
teacher's service are to be determined from the industrial commission's classification of risks
with proportional rates of premiums based thereon. It introduced in evidence the following
schedule of premium rates: State, counties, schools and cities, compulsory. Elective or
appointive offices and all employees exposed to transportation hazard a total of ninety-six
cents per hundred dollar payroll. That is sixty cents for the compensation and thirty-six for
the medical benefits. Clerical employees not exposed to transportation hazards, total forty
cents per hundred dollar payroll, twenty-five for compensation and fifteen for the
medical.
total forty cents per hundred dollar payroll, twenty-five for compensation and fifteen for the
medical. Professors, teachers, and clerical, total of forty, twenty-five cents for compensation
and fifteen cents for medical benefits.
Appellant points out that the industrial commission act is a contract binding upon the state
and upon employers and employees who accept its provisions; also that the remedies
provided in that act are exclusive. According to appellant, the classification of rates for
school teachers constitutes a delimitation of the hazards of that particular employment against
which the employee is insured, that is, the hazards which can be said to arise out of the
employment, and Mrs. Leonard, as appellant urges, was not protected by transportation
hazards.
We are unable to perceive how transportation hazards enter into this case at all. Mrs.
Leonard at the time of the accident was not being transported to the schoolhouse, nor was any
vehicle responsible for her injury. It was simply the result of a fall while she was walking
from her home to the schoolhouse.
We think that the trial court reached the correct conclusions, both as to the facts and the
law.
The judgment and orders appealed from are affirmed.
____________
58 Nev. 28, 28 (1937) Hill v. State
JOHN E. HILL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 3178
June 1, 1937. 68 P.(2d) 569.
1. Criminal Law.
Evidence that deputy sheriff attempted to locate state witness named in subpena every day for some
seventeen days preceding trial by visiting probable places of witness' employment, communicating with
secretary of labor union in city without state where witness had gone, and by otherwise searching and
inquiring, showed witness' unavailability sufficiently to authorize admission of witness' deposition taken at
preliminary examination, under statute (Comp. Laws, sec. 10775, as amended by Stats. 1933, c. 101).
2. Criminal Law.
The testimony of magistrate who presided at preliminary examination that in his opinion accused was
incapable of examining witnesses was insufficient to require rejection of deposition of unavailable witness
taken at preliminary examination, where no suggestion was made at trial that accused was unable to defend
himself, and accused's testimony showed he understood what testimony would aid or prejudice his case.
3. Criminal Law.
In prosecution for murder, stained pocket knife found wrapped in wire in garbage can in toliet near scene
of killing was admissible, under evidence that killing was accomplished with knife, that similar wire was
found in accused's premises, and that accused, who admitted killing with smaller knife in self-defense, was
in toilet following killing.
4. Criminal Law.
Under constitution defining supreme court's jurisdiction in criminal cases, court will not set aside verdict
of conviction for insufficiency of evidence if verdict is supported by any substantial evidence (Const. art.
6, sec. 4).
5. Homicide.
Evidence supported conviction of second-degree murder, as against contention that killing was in
self-defense.
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
John E. Hill was convicted of murder in the second degree, and he appeals. Affirmed.
J. M. Frame, for Appellant:
Appellant contends that it was prejudicial error to admit in evidence the knife designated
as plaintiff's exhibit No. 2. There is a complete failure on the part of the state to establish
any certain or reliable identification of this knife.
58 Nev. 28, 29 (1937) Hill v. State
exhibit No. 2. There is a complete failure on the part of the state to establish any certain or
reliable identification of this knife. The only testimony upon this point is that the wire on it
was similar wire to some of the wire found in the defendant's cabin. The defendant's positive
denial that he owned or had such a knife at the time of the difficulty is not overcome by what
would be merely conjecture or suspicion. State v. Codotte (Mont.), 42 P. 858.
The admission in evidence of the transcript of the testimony of the witness Mix was
likewise error. A proper foundation for the admission of his testimony taken at the
preliminary examination was not laid, in that it was not shown that the witness at the time of
the trial was either dead, absent from the state, or that his attendance at the trial could not
have been secured by the exercise of reasonable diligence. State v. Parker, 16 Nev. 79.
It was also error to admit the deposition of the witness Mix taken at the preliminary
examination. The defendant not being represented by counsel and not being in a mental or
physical condition to enable him to cross-examine the witness, the spirit and true meaning of
both the state and federal constitutions guaranteeing to the defendant the right to be
confronted by the witnesses against him was violated, to the prejudice of the defendant.
The evidence is insufficient to support the verdict, and the verdict is against the law. The
testimony offered by the state clearly corroborates the defendant's version of the difficulty,
and all the evidence clearly shows that the defendant acted in self defense.
Gray Mashburn, Attorney-General; W. T. Mathews and W. Howard Gray, Deputy
Attorneys-General; Ernest S. Brown, District Attorney, and Nash P. Morgan, Deputy District
Attorney, for the State:
A weapon or instrument with which a crime might have been committed, found near the
time and scene of the crime, is relevant and admissible in evidence.
58 Nev. 28, 30 (1937) Hill v. State
the crime, is relevant and admissible in evidence. 16 C. J. 618, sec. 1225; State v. Jon, 46
Nev. 418, 211 P. 676, 217 P. 587; State v. Campbell (N. D.), 72 N. W. 935; State v. Yee
Gueng (Ore.), 112 P. 425.
Even without the testimony of Mix, we believe, from the authorities cited, the
wire-wrapped knife would be admissible, being handed to the officer making the
investigation, at the time and place, by a by-stander who pointed out the place of finding,
together with the condition and appearance of the knife, the bloody toilet paper found on
appellant, the wire and pliers found in his cabin, the old grudge or bad blood existing, the
nature of the wounds, the condition of the pen knife with which appellant claimed to have
stabbed deceased, and the other facts in evidence.
However, the testimony of Mix, taken at the preliminary examination, was relevant,
competent and material, and it was not error to admit it. The testimony of Officer Geach and
of Deputy Sheriff Young shows that a subpena was issued and that a continuous and daily
search was made for the witness Mix from May 28 down to the date the officers testified.
Section 10775 N. C. L. expressly provides for the use of such testimony at the trial, and the
court has held the statute constitutional. State v. Jones, 7 Nev. 408; State v. Johnson, 12 Nev.
121. Appellant was confronted by the witnesses at the preliminary examination and had an
opportunity to cross-examine them.
The jury did not have to believe appellant's story that he was attacked by Zoebel, nor his
testimony as to what took place. State v. Robinson, 54 Nev. 56, 6 P.(2d) 433; State v. Soars,
53 Nev. 235, 296 P. 1081. Appellant's story is unreasonable, and even if true would not
justify him in the killing; moreover, it is contradicted in more than one particular point by
disinterested and credible witnesses.
There is ample evidence to support the verdict. State v. Robinson, supra. And a verdict of
conviction will not be set aside if it is supported by any substantial evidence.
58 Nev. 28, 31 (1937) Hill v. State
be set aside if it is supported by any substantial evidence. State v. Watts, 53 Nev. 200, 296 P.
26; State v. Squier, 56 Nev. 386, 54 P. (2d) 227.
OPINION
Defendant was convicted of murder of the second degree in department No. 2 of the
Second judicial district court, Washoe County, and sentenced to imprisonment in the state
prison for from ten years to life. This appeal is taken from the judgment, and from an order of
said district court denying a motion for new trial.
Between 6 and 6:30 o'clock on the morning of May 12, 1936, on the sidewalk on the west
side of Center street between Douglas alley and Commercial row in the city of Reno,
witnesses observed defendant, aged seventy, and one Theodore Zoebel, aged eighty, engaged
in a violent physical altercation. Aside from the participants, there does not appear to have
been any eyewitness to the beginning of the combat. Zoebel died from stab wounds inflicted
upon him by defendant in said encounter. The killing is admitted, but at his trial appellant
pleaded self-defense.
Police Officer J. L. Geach testified that upon arriving at the scene of the trouble, he saw
Zoebel lying on the sidewalk, and upon being told by by-standers that the man who had done
the cutting had proceeded west on Commercial row, he and Officer Dean went partly around
the block to the intersection of Virginia street and Douglas alley. There, one Ed Walters
pointed to defendant, who at that time was going east in Douglas alley. Thereupon the
officers went around to the front entrance of the Wine House on Commercial row, and
Officer Geach went through the Wine House and out its back door on Douglas alley, when he
again saw defendant proceeding east in the alley between the rear of the Wine House and
Center street.
58 Nev. 28, 32 (1937) Hill v. State
of the Wine House and Center street. The officer caught up with defendant and arrested him
just as he was turning into Center street from Douglas alley, about 40 feet south of the place
where the officer first found Zoebel lying on the sidewalk.
Defendant was with the officers when they took Zoebel to the hospital. On the way,
defendant volunteered the statement two or three times that he was justified in what he had
done. When Zoebel was taken into the hospital, Officer Dean also went in, while Geach
remained outside with defendant. At this time defendant again stated that he was justified in
what he had done and went on to tell Officer Geach that he had just protected himself as
would any other citizen.
In going through defendant's pockets at the police station, Mr. Geach found some pieces of
rope, a pocket knife, and a piece of toilet paper stained with what appeared to be blood.
Defendant also had a package on his arm, tied with a string. In it was defendant's lunch.
Amongst other things, the lunch package contained a small filled jar, which had been
cracked. The pocket knife was an ordinary brown bone-handled pocket knife, with two
blades. This is the knife with which defendant claims he stabbed Zoebel. There was no
appearance of blood or blood stains on either of the blades of this knife. Defendant told the
officer he had wiped the blood off the knife with his fingers. The officer did not notice any
bruises, scratches, or abrasions on defendant's face.
After searching defendant at the police station, the officer went back to the scene of the
trouble for the purpose of trying to find witnesses who had seen the trouble start. This was
about fifty minutes after he had first been called there. While standing in front of the Bank
Club, just south of Douglas alley on Center street, a man identifying himself as a Mr. Mix, in
the employ of the Nevada State Journal, handed him a knife. It was a pocket knife without
handles on, a long blade, I might say the blade was about three inches at least, and this blade
was wired open."
58 Nev. 28, 33 (1937) Hill v. State
blade was wired open. There were blood stains on the blade. After handing this knife to the
officer, Mr. Mix took him to the toilet of the Wine House and there showed him a garbage
can in which there was what appeared to the officer to be a broken bottle and a little water.
Officer Geach further testified that on the second day after the trouble, he inspected the
cabin in which defendant had been living, and there found some wire; on the next day he also
found there a pair of cheap pliers. The pliers, the wire, both knives, and the stained paper
were admitted in evidence at the trial.
Mr. Geach further testified that on the day of the trouble, after defendant's arrest, in the
office of the chief of police, defendant stated that there had been bad blood between him and
Zoebel for eight years; that he had been attacked by Mr. Zoebel; and that upon one occasion
Mr. Zoebel had caused his arrest. On May 12, and again on May 15, defendant stated that at
the time of the trouble on the morning of May 12, Zoebel attacked him with a ramal.
Officer Geach testified that on May 15 defendant denied ownership of the knife which had
been handed the officers by Mr. Mix; also that defendant said he had gone in the front door of
the Wine House and out the back door on the morning of the trouble, but that this was before
the altercation.
With reference to the wire found in defendant's premises, Mr. Geach testified on
cross-examination that he would say it was the kind commonly used by electricians and for
various purposes, but he was not in a position to qualify; that it had been his observation that
this kind of wire was commonly used and generally on the market, and often used in the city
of Reno. Also on cross-examination he admitted that he was not to be understood as
testifying positively that the stains on the larger knife were blood. Defendant from the first,
says Mr. Geach, consistently maintained that he was justified in stabbing Zoebel.
58 Nev. 28, 34 (1937) Hill v. State
justified in stabbing Zoebel. This officer estimated that Zoebel was about 5 feet 10 inches tall,
and weighed from 140 to 150 pounds.
Charles Warren Mix, the man who handed Officer Geach the knife with which the state
claims Zoebel was stabbed, did not appear as a witness at the trial, but his deposition taken at
the preliminary examination was admitted in evidence over defendant's objections, which will
be considered later in this opinion. The substance of Mr. Mix's testimony follows: On the
morning of the trouble, he had occasion to go to the men's toilet in the rear of the Wine House
adjoining Douglas alley. He noticed a knife in the garbage can where there was about half an
inch of water. He had previously heard that somebody had been stabbed. He picked up the
knife and when he saw the officers, handed the knife to Officer Geach. He identified the
larger knife with the longer blade as the one he handed the officer. It was wrapped with wire
when he found it just as it was when he examined it in court. It had a stain on the blade. He
could not exactly say whether it was blood or not.
Ed Walters, occupation building trades, who had lived in Reno about ten years, testified
that on the morning of the trouble, while in the front entrance of the Palace Club, he noticed
defendant and Zoebel scuffling on the sidewalk on Center street about half way between
Douglas alley and Commercial row. Zoebel was bleeding very badly and was following
defendant, who was coming towards witness. As they came nearer, Zoebel staggered and fell
on the sidewalk. Witness picked him up and put him over to the side of the building, noticing
that he was badly cut on the left side of the face, and that there was a cut also under the left
arm. Defendant walked on over to the corner and stood there mumbling, then he started west
on Commercial row. Witness followed defendant to Virginia street and told him not to cross
that street. Defendant turned to the left on Virginia street and went south to Douglas alley and
then started east in that alley.
58 Nev. 28, 35 (1937) Hill v. State
then started east in that alley. Witness saw officers coming, stopped them and informed them
that defendant had just entered the rear of the Wine House, and as witness neared this bank
entrance, defendant came out and started east again in Douglas alley. Witness pointed out
defendant to Officer Geach, who followed him to Center street and north around the corner
on the sidewalk where Zoebel had fallen, and arrested him.
On cross-examination Mr. Walters testified that defendant remained in the rear of the
Wine House from five to ten minutes. When he first saw Zoebel and defendant scuffling,
Zoebel had a ramal in his hand. Witness did not see any blows struck with it. Witness was
about 20 or 30 feet away when he saw the ramal in the hands of Zoebel.
Eli Francovich, an employee at the Wine House, who had resided at Reno all his life and
who had seen defendant many times, though not personally acquainted with him or Zoebel,
testified that while standing at the front of the Wine House, on the inside, two young men
came in the front door and he heard one of them saying to the other, That is him going into
the toilet now. Witness looked toward the rear of the building and saw a man entering the
toilet, whom he did not at that time recognize. Witness watched and in a few minutes saw
defendant coming out. Defendant turned and went out the back door into Douglas alley.
Witness testified that no one else had been in the toilet while defendant was there. Witness
went out through the back door, saw defendant proceeding east in Douglas alley, followed
him, and when he reached the end of the alley, saw the officers searching him.
On cross-examination, Mr. Francovich testified that the toilet was one in general use
where anybody could enter who saw fit, and that many men were in and out of that room
every day. Defendant was in there not more than two or three minutes. This was around 6:30
a.m. at the latest.
58 Nev. 28, 36 (1937) Hill v. State
Fred East, a prospector who had been around Reno a number of years, and who had
previously seen both defendant and deceased, though not personally acquainted with either of
them, saw them scuffling and trying to clinch with each other on the sidewalk about 30 feet
north from Douglas alley, about 6 o'clock or maybe a little later. He did not see either one
strike the other at first, but a little later, just before Zoebel fell, he saw defendant strike him
on the left side of the face. He also saw Zoebel strike defendant over the head two or three
times with the whip end of the ramal. Zoebel's blows did not look very hard. He didn't look
like that he was very stout. After defendant had struck Zoebel, the latter grabbed hold of a
high iron sign post to steady himself. When he left that post, he reeled quite a bit, did not
walk very straight. From that post he went to the side of the Palace Club near the front
entrance and there fell. Witness was standing almost opposite the front entrance of the Palace.
About this time defendant told witness that Zoebel had been picking on him for the last eight
years, and I have fixed him so that he won't pick on me or anybody else. Defendant
referred to Zoebel as a s____ of a b____. He looked around at Zoebel and said, You will not
bother me any more; then he turned the corner and went west on Commercial row.
Mr. East testified, on cross-examination, that he did not see state's witness Walters at the
scene of the trouble. As Mr. Hill was walking away from Zoebel, the latter hit him over the
head two or three times with the ramal. Zoebel was holding the ramal by the loop and was
hitting defendant with the straps. Witness did not see the ramal doubled or folded up at any
time. Witness was near the front entrance of the Palace Club when he first saw defendant and
Zoebel scuffling on the sidewalk about 50 feet to the south. They were about 20 feet south of
where witness was standing when Zoebel commenced hitting defendant over the head with
the ramal, and about 10 feet from where witness was standing when he saw Zoebel cut on
the face.
58 Nev. 28, 37 (1937) Hill v. State
and about 10 feet from where witness was standing when he saw Zoebel cut on the face.
Defendant was in front of Zoebel coming towards witness. As Zoebel was striking defendant
with the ramal, defendant turned around and cut Zoebel's face. After the trouble, witness
followed defendant west on Commercial row, but defendant was not in sight when witness
turned the corner at Virginia street. Witness proceeded south on Virginia street to Douglas
alley, but did not see defendant at first as he looked eastward in that alley. Witness started to
cross Douglas alley when he heard a couple of men say, There he goes. Witness then
looked down the alley again and saw defendant crossing to the side of the Bank Club.
Defendant walked out of the alley on to Center street and then crossed the alley northwards
towards the place where the crowd was standing around Mr. Zoebel.
On redirect examination, Mr. East testified that although he did not see Mr. Walters at the
scene of the trouble, he might have been there because there were lots of people around there.
Zoebel followed Hill about 40 feet before collapsing on the sidewalk.
Jacob Sands, a resident of Reno for about twenty years, while standing at the front corner
of the Palace Club the morning of the trouble, happened to look to the south and saw
defendant and Zoebel kind of wrestling. He thought they were fooling. The next he saw,
defendant was walking toward him and Zoebel was kind of making weak efforts with a sort
of strap. As Zoebel came closer, he slumped over. Witness saw Zoebel strike defendant
about once or twice, just kind of weak efforts.
On cross-examination Mr. Sands said that Zoebel was making a few wild swings, which
kind of glanced off because defendant was holding up his elbow, trying to ward the blows
off a little. Witness did not notice defendant stop at any time. He kept on going, mumbling a
little to himself, and proceeded west on Commercial row.
58 Nev. 28, 38 (1937) Hill v. State
row. When Zoebel was striking at defendant with the whip, just before collapsing, defendant
did not use a knife or strike him with anything. From the place where Zoebel struck defendant
the last time, to the front corner of the Palace Club, defendant did not talk to anybody. He was
just mumbling a little as he passed witness.
Dr. William L. Howell, who had practiced medicine and surgery in Nevada for twenty
years, and was county physician for Washoe County, performed an autopsy to determine the
cause of Zoebel's death. This was on the afternoon of the day of the killing. He discovered
eight lacerated wounds, some of which were on the scalp, face, neck, and shoulder. One stab
wound penetrated the left ventricle of the heart, resulting in a hemorrhage which filled the
pericardium. There were other wounds on the body, including one in the abdomen. The cause
of death was compression of the heart, resulting from the hemorrhage. It would be possible,
said Dr. Howell, for a man stabbed in the heart as Zoebel was, to walk 40 feet before
collapsing and dying. Zoebel may have lived some minutes before death ensued. The wound
in the heart was caused by a cutting instrument, apparently a sharp one. The knife claimed by
the state to have been used in the stabbing would ordinarily be more apt to make the wounds
than the smaller knife found in defendant's clothes after the killing. The latter has a shorter
blade, and more dull, and not one that could be used with the same force and make the same
wounds. Zoebel was an average-sized man, thin, weighing about 160 pounds, at a rough
guess. One cross-examination Dr. Howell testified that any of the wounds could have been
made by the smaller knife.
Lowell Nugent, funeral director, testified that when he took possession of the body at the
hospital, it was clothed, and he assisted in removing the clothing. It was searched, for
purposes of identification, and was found to contain some cigarette papers and matches, a
piece of wrapping paper about eight inches wide on which was written, in lead pencil, "I
am not at the river," and an ordinary small pocket knife.
58 Nev. 28, 39 (1937) Hill v. State
piece of wrapping paper about eight inches wide on which was written, in lead pencil, I am
not at the river, and an ordinary small pocket knife. The blades of this knife were closed. No
firearms were found.
Lyle R. Stout, eleven years with Nevada Machinery & Electric Company, seller of
electrical merchandise at Reno, testified that in electrical business they use a stranded wire
gauge, and that he had had eleven years experience in the use of such gauges. Some of the
wire found at the defendant's premises was size 19. This wire is soft iron galvanized wire, and
is the same size and kind as that with which the blade of the longer knife was wired open.
The sharp side cutters used by electricians cut wire clean. Ordinary pliers, not sharp, leave a
kind of bend on the end of the wire where it is cut. The wire on the longer knife looked like it
might have been cut with some type of gas plier, because the ends were rather rough; not cut
sharp and clean; kind of broken off like something dull. Referring to the wire found at
defendant's place, of the same kind and size as that on the knife, witness stated that the ends
looked like the wire had been cut with a cheap gas plier such as that found where defendant
liveda plier that bends and pinches the wire instead of cutting it sharp and clean. On
cross-examination Mr. Stout testified that the pliers found at defendant's place are a type
commonly used all over, and that might be found in pretty nearly any cabin or house in Reno.
Any cheap plier would make the same appearance in cutting the wire. Witness would not say
that the wire on the knife was cut from the other piece of wire in evidence, but only that it
was the same type of wire, and the same size.
Defendant testified that: He had been living in Reno the last ten years. He quit working in
mines when he was sixty-six years old. His health had been bad for several years, because of
stomach trouble. He was coming seventy years of age, and weighed 126 pounds. When
younger, he weighed 165. For the past year he had been working on government relief.
58 Nev. 28, 40 (1937) Hill v. State
working on government relief. Prior to May 12 he had been working at the university, at the
north end of Reno. He had known Zoebel for about ten years, and saw him occasionally.
Defendant left his home about 5:15 on the morning of May 12, 1936. He walked right up
town to the Wine House, where he used to go every morning when he was working to take a
rest. He left there by the back door about 6:30, and went east in Douglas alley, turning north
at Center street. As he turned the corner from the alley on to Center street, he saw Zoebel
walking south toward him, about 25 feet away, on the sidewalk along the side of the Palace
Club. When they were 3 or 4 feet from each other, Zoebel, without any warning, pulled the
ramal from behind his coat and began beating defendant on the head. At that time the ramal
looked like a blackjack to defendant. It was doubled up. Defendant thought he was in danger
of getting badly hurt, and believed it was necessary to defend himself. The attack came so
sudden he was mystified, stunned, did not know what to do. All he had to defend himself
with was the penknife, so he pulled that out of his pocket and used it in self-defense, backing
away as he did so. The time during which he was cutting Zoebel was about a minute. He was
trying to get away, but Zoebel hung right on to him. He had no intention of killing the man
and felt sorry because the man was dead. He was never in trouble of this kind beforealways
tried to keep out of trouble. This was the sixth time Zoebel attacked him in the last eight
years. About six years before, when defendant had two broken ribs, Zoebel knocked him
down, beat him all over the head and part of the face with a rock. Since then he had attacked
defendant on several other occasions, but defendant had escaped without serious injury.
About five or six days before the final encounter, Zoebel shook his fist at defendant, and
defendant crossed to the other side of the street. It was always Zoebel who commenced the
trouble. He was a bigger and stronger man.
58 Nev. 28, 41 (1937) Hill v. State
Defendant was never looking for trouble. Defendant cleaned the blood from the blade of the
penknife with his fingers. He knew nothing whatever about the other knife; never saw it until
the preliminary examination. When the trouble happened, defendant had his lunch and was on
his way to work. He had no weaponsnever did. The penknife was all he had. He did not
expect to meet Zoebel there that morning; he was cornered and could not get away. He did
the only thing he could do under the circumstances. He was as innocent as a child. As to the
blood on the paper: Zoebel tried to get the knife away from him, and defendant cut himself.
The scar could be seen yet. He wiped the blood from his wound with that paper. Zoebel tried
to knock defendant out before he had time to defend himself, but he held up his left arm to
catch the force of the blows.
On cross-examination defendant testified that: Neither he nor Zoebel spoke a word during
the encounter, and defendant did not say anything to anybody else, though he may have
mumbled or something like that. He did not call Zoebel any names. When he went around to
the intersection of Douglas alley and Virginia street, after the trouble, he next proceeded east
in that alley, and did not stop except to light a cigarette by the old Louvre Club. He did not go
into the Wine House at all after the fight. The paper with which he wiped the blood from his
wound had been in his pocket probably for days. Zoebel hit him once, before he raised his
arm. The place where he was struck was so sore that he could hardly chew for weeks. He
wiped the blood off the knife, and closed it, as he walked west on Commercial row.
Regarding the blood on his fingers: I don't know what became of it, I guessI don't know as
I could explain that. He did not feel it was necessary to kill Zoebel, did not want to kill him,
and did not try to do so.
The testimony has been outlined at some length because appellant contends that upon the
whole case the evidence was insufficient to support the verdict, and that the verdict is
against law and contrary to the evidence.
58 Nev. 28, 42 (1937) Hill v. State
that the verdict is against law and contrary to the evidence. Before considering this
assignment, we shall take up the question whether Mr. Mix's deposition was erroneously
admitted in evidence at the trial. Defendant's objections to its admission were, first, that there
was insufficient showing that the personal attendance of the witness could not be had (section
10775 N. C. L. 1929, as amended Statutes of Nevada 1933, c. 101, p. 126); second, that to
admit the deposition would violate his constitutional right to be confronted by the witness
against him and would also deprive him of the right to cross-examine the witness.
1. In State v. Parker, 16 Nev. 79, relied upon by appellant, this court reversed a conviction
of burglary because the deposition of a witness at the preliminary examination was
erroneously admitted in evidence at the trial. In that case no subpena was issued for the
witness, and it was not shown that any effort was made to find him or produce him in court.
In the instant case Mr. Mix's name was included with those of the other witnesses for the
state, in the subpena which was handed to Deputy Sheriff Charles Young. As Mr. Mix was a
printer by trade, Mr. Young went to the Gazette office, the Journal office, and the Reno
Printing office, in trying to locate him. He then learned from the secretary of the Printers'
Union that Mix had left for Sacramento. He communicated with the secretary of the
Sacramento Printers' Union, who wired back that Mix had been there, but had left, probably
to go back to Reno. It was on May 28 that Mr. Young started to work to serve the subpenas.
He testified that he had been trying to find Mr. Mix every day since that time. He had seen
him on several occasions since the trouble happened, around the Wine House, the Bank Club,
and in Douglas alley. He tried to find him in that vicinity, the last time being on the night of
the first day of the trial, June 15, 1936. He also inquired of various persons with whom he had
seen Mix talking, but they did not seem to know where he was.
58 Nev. 28, 43 (1937) Hill v. State
seem to know where he was. We think this was a sufficient showing that Mr. Mix's personal
attendance could not be had at the trial.
The further objection to the admission of Mr. Mix's deposition at the trial, namely, that it
violated defendant's constitutional right to be confronted by the witness Mix and deprived
defendant of the right to cross-examine him, is based upon a part of the testimony of James E.
Sullivan, committing magistrate, who presided at defendant's preliminary examination. Judge
Sullivan, after testifying at the trial as a witness for the state that all the legal formalities
prescribed by the statute had been complied with at the preliminary examination, testified, in
part, on cross-examination as follows:
Q. You do know that the defendant was a man apparently unfamiliar with judicial
proceedings of that kind? A. Yes.
Q. And isn't it a fact, Judge, that because of the man's mental and physical condition that
he would not be capable of conducting very much of an examination or cross-examination?
A. No, I don't believe he could examine or cross-examine very well.
2. It is not contended that defendant was denied or deprived of any rights at the
preliminary examination for any reason other than that he was not in such mental and
physical condition that he was able to properly cross-examine witnesses had he desired so to
do. No authorities have been cited in behalf of appellant on this particular question, but we
have, nevertheless, given the question careful consideration. Other than Judge Sullivan's
testimony, there is nothing in the record bearing upon the mental or physical condition of the
defendant either at the time of the preliminary examination or the trial. The magistrate's
testimony was a mere statement of his belief that defendant, at the preliminary examinations,
was not in such mental and physical condition as to enable him to examine or cross-examine
very well. This is not, in our opinion, sufficient to bring this case within the rule laid down
in Combs v. State, 52 Okl. Cr. 99, 2 P.
58 Nev. 28, 44 (1937) Hill v. State
this case within the rule laid down in Combs v. State, 52 Okl. Cr. 99, 2 P. (2d) 1037, 1038,
which presented a situation more similar to that in the instant case than any other authority we
have found. In that case the criminal court of appeals reversed a judgment of conviction upon
the ground that defendant, who was not represented by counsel at the preliminary
examination, was of unsound mind and unable to cross-examine the witnesses or to waive his
right to counsel. The conviction in that case was for grand larceny, and the verdict of the jury
read as follows: We, the jury impaneled and sworn in the above-entitled cause, do upon our
oaths, find the defendant guilty of grand larceny, and fix his punishment at eighteen months
in the penitentiary, and we recommend that he be paroled to any person or institution who
will take him in charge and provide whatever operation or medical attention, if any, be
necessary. In its opinion the court said: In the case at bar the evidence is that the defendant
was shot in the nose when he was about eleven years of age and some hard substance was
lodged in his head, and that since that time he had been at times irrational and mentally
incompetent and possessed of a mania for taking the property of other people apparently
without any definite purpose or idea of ownership or responsibility. The verdict of the jury
practically amounts to a finding of criminal insanity. * * * If the defendant had been
represented by counsel and had an opportunity to cross-examine the witnesses and failed to
do so, he could not complain, and the evidence would have been admissible. But the facts in
the case at bar are far different to those covered by the general rule, in that defendant was not
represented by counsel and in that the whole record, including the verdict of the jury,
indicates that he was of unsound mind and unable to cross-examine the witnesses or to waive
his right to counsel.
In the case at bar, self-defense was relied upon entirely. The defense was not based wholly
or in part on insanity. No suggestion was made at the trial that defendant was not in a
condition to defend himself.
58 Nev. 28, 45 (1937) Hill v. State
defendant was not in a condition to defend himself. There was no testimony tending to show
that at the time of the trial in the district court defendant's condition was any better that it was
at the time of the preliminary examination. Defendant took the stand at his trial in the district
court, and a study of his testimony indicates that at that time he understood very well what
evidence would tend to help him as well as what would tend to prejudice his case. It is our
opinion that the trial court properly admitted in evidence the deposition of the witness Mix
taken at the preliminary examination.
3. When the state offered in evidence the knife with which it claimed the stabbing was
done, defendant objected to its being admitted upon the ground that it was incompetent,
irrelevant, and immaterial, no sufficient foundation having been laid, or sufficient evidence
offered to connect it with the defendant. This objection was overruled, and the knife admitted
in evidence. The action of the trial court in so admitting the knife in evidence is assigned by
appellant as reversible error. It is clear to us, however, that the district court's ruling on this
point was correct. If the witness Mix's testimony were not in the case, the question would be
more serious; but Mix's deposition having been, as we have ruled, properly read in evidence
at the trial, the action of the trial court in permitting the knife to be admitted in evidence was
so clearly right that we do not feel called upon to enter into any discussion concerning it.
Appellant further assigns as error that the evidence was insufficient to support the verdict,
and that the verdict is against law and contrary to the evidence. It is appellant's contention that
the evidence was insufficient to warrant a conviction of any offense, and that in any event it
was insufficient to warrant a conviction of murder of the second degree.
4, 5. Section 4 of article 6 of the constitution of Nevada gives this court appellate
jurisdiction on questions of law alone in all criminal cases in which the offense charged is
within the original jurisdiction of the district courts."
58 Nev. 28, 46 (1937) Hill v. State
the district courts. In a criminal case this court will not set aside a verdict of conviction upon
the ground of insufficiency of evidence if the verdict is supported by any substantial evidence.
We have studied the transcript with much care and have given an outline of it earlier in this
opinion. We are satisfied that there was sufficient evidence upon which the jury, as
reasonable persons, could properly base the verdict they arrived at in this case. The fatal
stabbing was admitted. In his endeavor to raise a reasonable doubt in the minds of the jurors
as to whether the killing was in self-defense, defendant gave some testimony which
reasonable persons could not be expected to believe. The most flagrant example of such
testimony was defendant's denial that he had been in the Wine House at all at any time after
the stabbing took place. The purpose of that denial is very patent, namely, to attempt to avoid
the effect of the testimony of other witnesses connecting him with the knife which the state
contended was used in the killing.
Defendant was the only one who testified that the ramal, while in the hands of Zoebel, was
doubled or folded up. Again, on direct examination, defendant testified, When we were
about three or four feet away, he pulls this here blackjack from behind his coat and he started
batting me on the head without a moment's notice. On cross-examination, he testified that
when he first saw Zoebel coming towards him, he was about 25 or 30 feet from defendant as
near as he could judge, and that he was something like half that distance when he drew the
whip.
Defendant's own testimony seriously impaired his credibility and placed him in such a
position with the members of the jury that they were at liberty to entirely disregard his story,
except insofar as it was corroborated by other credible evidence. The jury was not bound to
accept defendant's account of the beginning of the trouble on the morning in question, and in
this connection it will be remembered that the officer who arrested defendant did not notice
any bruises, scratches, or abrasions on his face.
58 Nev. 28, 47 (1937) Hill v. State
arrested defendant did not notice any bruises, scratches, or abrasions on his face. Even if the
jurors believed that the whole or some part of defendant's uncorroborated testimony relating
to the beginning of the trouble might have been true, their verdict clearly shows that they
were convinced beyond a reasonable doubt that defendant did not act as a reasonable man in
stabbing Zoebel to death, and that the stabbing was done with the malicious intent to take
Zoebel's life. We are clearly of opinion that this court would not be justified in setting aside
the verdict of the jury on the ground that there was not sufficient evidence to support it.
The judgment and order appealed from are affirmed.
____________
58 Nev. 47, 47 (1937) Alward v. Local Admin. Comm. of Dist. No. 1
The STATE OF NEVADA, on the Relation of FRED S. ALWARD, Petitioner, v. LOCAL
ADMINISTRATIVE COMMITTEE OF DISTRICT NO. 1, COMPRISING CLARK
AND LINCOLN COUNTIES OF THE STATE OF NEVADA, Respondent.
No. 3183
June 3, 1937. 68 P.(2d) 581.
1. Attorney and Client.
An act relative to removal or suspension of attorneys, which provides that accused may answer the
accusation by objecting to its sufficiency and that the objection need not be in any specific form, does not
control rule of procedure approved by supreme court that demurrers and motions to strike shall not be
allowed, so as to permit attorney to demur to complaint in disciplinary proceedings against him (Comp.
Laws, secs. 591-617; secs. 611-613).
An attorney against whom complaint is filed with local administrative committee has right to present
jurisdictional questions and such contentions as that complaint does not state facts sufficient to warrant
disciplinary proceedings, but this must be done by answer rather than by demurrer or motion, and charges
in complaint must at same time be answered on merits (Comp. Laws, secs. 591-617; secs. 611-613).
In disciplinary proceeding of attorney before administrative committee of state bar,
commendable practice would be for committee to first dispose of objections in
attorney's answer going to jurisdiction or to sufficiency of facts alleged in complaint
{Comp.
committee of state bar, commendable practice would be for committee to first dispose of objections in
attorney's answer going to jurisdiction or to sufficiency of facts alleged in complaint (Comp. Laws, secs.
591-617).
A complaint alleging that attorney as member of bar association agreed to minimum divorce fee rule, but
accepted lesser fee without authority and then swore to a false oath that he had not done so, was sufficient
to support disciplinary proceeding before local administrative committee of the state bar (Comp. Laws, sec.
591-617).
Original proceeding in prohibition by the State, on the relation of Fred S. Alward,
petitioner, against the Local Administrative Committee of District No. 1, comprising Clark
and Lincoln Counties, wherein an alternative writ was issued and served. Writ set aside, and
petition dismissed.
George E. Marshall, Attorney for petitioner, presented oral argument but did not file a
brief.
Paul Ralli and Gray Gubler, for Respondent:
While there are some cases wherein it is said that disciplinary proceedings are criminal or
quasi criminal in nature, and that an accusation against an attorney is in the nature of a
criminal charge, and while the federal court has observed (Philbrook v. Newman, 85 Fed.
139) that the proceeding is civil in nature, the better considered rule is found in those cases
which hold such proceedings to be peculiar to themselves and to be governed exclusively by
the provisions of the statute law specifically relating thereto. Cal. Juris. Ten Year
Supplement, vol. 9, p. 429, sec. 79.
OPINION
The Las Vegas bar association was formed in January 1934. Its governing board is known
as the board of trustees. On January 31, 1934, according to the complaint hereinafter
mentioned, said bar association, of which petitioner herein was a member, unanimously
adopted the following rule: "Minimum divorce fee in default cases and cases not actually
contested, $100.00, excluding costs, provided that the Board of Trustees is authorized to
fix a lesser amount in deserving cases * * * applications for a lesser fee shall be made to
the Board of Trustees by the attorney representing the plaintiff * * * such application to
be made at least a week prior to the filing of the complaint."
which petitioner herein was a member, unanimously adopted the following rule: Minimum
divorce fee in default cases and cases not actually contested, $100.00, excluding costs,
provided that the Board of Trustees is authorized to fix a lesser amount in deserving cases * *
* applications for a lesser fee shall be made to the Board of Trustees by the attorney
representing the plaintiff * * * such application to be made at least a week prior to the filing
of the complaint.
In January 1937, a complaint was filed with the local administrative committee of the state
bar of Nevada, for Clark and Lincoln Counties, charging petitioner, among other things, with
a violation of said rule. The complaint alleged that on February 10, 1934, petitioner
subscribed and swore to an oath and affidavit, the body of which read as follows: That he is
a member of the Las Vegas Bar Association; that the said Association has adopted a
minimum fee in default divorce cases and divorce cases not actually contested; that he assents
to the adoption of such minimum fee and will abide by the said rule, while a member of the
Las Vegas Bar Association; that he will charge and retain said minimum fee in all cases
except where a different fee is authorized in writing by the Board of Trustees; that he shall
remain a member of the said Las Vegas Bar Association until his written resignation shall be
filed with the Secretary or President of said Association.
Said complaint further charged that on December 21, 1936, while petitioner was a member
of said bar association, and while said rule was in effect, and known by petitioner to be in
effect, he charged and accepted the sum of $44, exclusive of costs, in full for his services in
representing a certain-named client in a divorce action, and in obtaining for said client a
decree of divorce.
It is also alleged that on December 28, 1936, petitioner subscribed and swore to a false
oath and affidavit relating to said action, the body of which was in the following words: I,
Fred S. Alward, being duly sworn on oath depose and say: that in the above entitled case, I
have charged and received, in cash, a fee not less than the minimum fee established by
the Las Vegas, Nevada, Bar Association, or if the Board of Trustees of said Bar Association
have fixed fee in the above entitled case, less than the minimum, that I have charged said
fee so fixed, and received the same in cash or property or otherwise as fixed by the Board
of Trustees in this particular case; and I further state the fact to be that the amount
charged for services in the above entitled case, exclusive of court costs, has not been
shared and will not be shared with anyone other than a member of the State Bar of
Nevada, or an attorney at law in good standing in one of the several states or territories
of the United States or of a foreign country."
have charged and received, in cash, a fee not less than the minimum fee established by the
Las Vegas, Nevada, Bar Association, or if the Board of Trustees of said Bar Association have
fixed fee in the above entitled case, less than the minimum, that I have charged said fee so
fixed, and received the same in cash or property or otherwise as fixed by the Board of
Trustees in this particular case; and I further state the fact to be that the amount charged for
services in the above entitled case, exclusive of court costs, has not been shared and will not
be shared with anyone other than a member of the State Bar of Nevada, or an attorney at law
in good standing in one of the several states or territories of the United States or of a foreign
country.
Petitioner, according to said complaint, has never consulted the Board of Trustees of said
Association relative to said divorce action, and said Board of Trustees have never fixed a fee
in said action less than said minimum fee of $100.00 or otherwise.
During all the year 1936, and prior thereto, petitioner, as is further charged in the
complaint, made continual representations to approximately nine-tenths of those members of
the state bar practicing and residing in Clark County, Nevada, that he would charge and
collect a fee of not less than $100 in any uncontested divorce action in said county, except
where, on application, the board of trustees of said bar association should permit a reduction.
Said violations of the rule are alleged in the complaint to have been willfully committed,
with intent to deceive the other members of said bar association who, it is charged, relied
upon petitioner's representations to their damage, in that legal business which would
otherwise have come to them was thereby diverted to him.
Petitioner attempted to file a general demurrer to said complaint, but the committee
refused to entertain it, and granted him six days additional time within which to file his
answer; whereupon he applied to this court for a writ of prohibition, and an alternative writ
was issued and served.
a writ of prohibition, and an alternative writ was issued and served. The petition, after setting
forth the proceedings thus far had, alleges that the committee threatens to and will continue to
prosecute the case, and will, if not prohibited, enter petitioner's default for failure to answer,
proceed with the taking of testimony, and render an order in said cause.
Petitioner contends that the committee is without jurisdiction to take further proceedings,
for the following reasons: (a) The complaint does not state facts sufficient to constitute a
cause of action against him; (b) the action of the committee in refusing to entertain his
demurrer is violative of his constitutional right to properly defend himself. He maintains that
prohibition is the proper remedy because he has no other speedy or adequate remedy, by
appeal or otherwise, and, if the committee is permitted to take further proceedings, he will be
caused great embarrassment, financially and otherwise, and will lose the political support of
his friends and constituents.
The act relative to attorneys and counselors at law, approved October 31, 1861 (sections
591 to 617 N. C. L. 1929) provides for the removal or suspension of attorneys by proceedings
in this court. Sections 21, 22, and 23 of this act (sections 611, 612 and 613 N. C. L. 1929)
read as follows:
Sec. 21. The accused may answer the accusation, either by objecting to the sufficiency, or
by denying its truth.
Sec. 22. If he objects to the sufficiency of the accusation, the objection shall be in writing,
but need not be in any specific form, it being sufficient if it present intelligibly the grounds of
the objection. If he deny the truth of the accusation, the denial may be oral, and without oath,
and shall be entered upon the minutes.
Sec. 23. If an objection to the sufficiency of the accusation be not sustained, the accused
shall answer forthwith.
The state bar act (sections 540 to 590 N. C. L. 1929) was approved January 31, 1928, and
has been held constitutional by this court. In re Scott, 53 Nev. 24, 292 P. 291. Section 25 of
this act (section 564 N. C .L. 1929) provides that: With the approval of the supreme court,
the board shall have power to formulate and enforce rules of professional conduct for all
members of the bar in the state. Pursuant to this section, rules of procedure were adopted by
the board of governors of the state bar on October 26, 1934, and approved by this court the
following month. Rules XII, XXIII, XXIV, and XXXI are as follows:
Rule XII. Pleadings. The only pleadings permissible upon proceedings before the board
of governors or a local administrative committee, against a member of the state bar are the
complaint and the answer thereto. Demurrers and motions to strike shall not be allowed.
Rule XXIII. Form of Answer. No set form of answer is required, but all admissions,
denials and statements in explanation of any allegations of the complaint must be set forth in
ordinary and concise language.
Rule XXIV. Date of Hearing. Upon filing answer, or upon expiration of the time for
filing the same, the local administrative committee or the secretary thereof, upon order of the
committee, shall fix the time and place of hearing and give notice thereof of not less than ten
(10) days to the complainant and also the accused if he has answered. * * *
Rule XXXI. Speedy Trial and Prompt Decision. It shall be the duty of the committee to
proceed to a speedy trial and prompt decision.
1, 2. Petitioner has cited no authority to support his contention that the committee's refusal
to entertain his demurrer violated his constitutional right to defend himself, and we have been
unable to find any such authority. He argues, however, that rule XII of the rules of procedure
is controlled by the sections of the act of 1861 hereinbefore quoted. We do not concur in this
view. We are of the opinion, however, that an attorney against whom a complaint is filed
with a local administrative committee has the right to present jurisdictional questions and
such contentions as that the complaint does not state facts sufficient to warrant
disbarment, suspension, or other disciplinary proceedings.
attorney against whom a complaint is filed with a local administrative committee has the right
to present jurisdictional questions and such contentions as that the complaint does not state
facts sufficient to warrant disbarment, suspension, or other disciplinary proceedings. But this
must be done by answer, not by demurrer or motion; and the charges in the complaint must at
the same time be answered on the merits. Ordinarily an answer is intended to raise only issues
of fact; but such is not always the case. We think the intent of rule XII is to prevent delays.
3. When the answer contains objections going to the jurisdiction, or to the sufficiency of
the facts alleged in the complaint, a commendable practice would be for the committee to
first dispose of such issues of law. This would give the complainant an opportunity to amend
its complaint if vital defects should be made to appear, and at the same time would be fair to
the accused in that he would not be forced to a hearing on the merits before the committee
decides that it has jurisdiction and that the complaint is free from fatal defects. Short
postponements could be had, if necessary or proper, in accordance with rule XXVI of the
rules of procedure.
4. We find ourselves unable to agree with petitioner in his contention that the complaint
filed with the committee does not state sufficient facts. Several acts of misconduct are
alleged. If any one of these constitutes professional misconduct, it is sufficient for the
purposes of the instant proceeding; and we are clearly of the opinion that the alleged affidavit
of December 28, 1936, taken in connection with other facts alleged in the complaint, is alone
sufficient to support disciplinary proceedings before the committee. We do not decide
whether other alleged acts of professional misconduct are such as to warrant such
proceedings, and we do not feel called on, in this proceeding, to determine whether the
minimum fee rule adopted by the Las Vegas bar association on January 31, 1934, is itself
ethical. We naturally assume that the Las Vegas bar association and the local administrative
committee for Clark and Lincoln Counties are familiar with canon 12 of the Canons of
Professional Ethics of the American Bar Association, and opinion 2S of the Committee on
Professional Ethics and Grievances of that association.
administrative committee for Clark and Lincoln Counties are familiar with canon 12 of the
Canons of Professional Ethics of the American Bar Association, and opinion 28 of the
Committee on Professional Ethics and Grievances of that association. Attention may also be
here directed to an article entitled Some Researches into the Matter of Minimum Fees for
Lawyers, by the chairman of the minimum fee committee of the Cleveland bar association,
appearing in the January 1935 issue of the American Bar Association Journal. Our mention of
said opinion 28 and of the article in the American Bar Association Journal is not to be taken
as an expression of opinion that the minimum fee rule of the Las Vegas bar association is or
is not an obligatory fee schedule.
The alternative writ heretofore issued is set aside, and the petition dismissed.
____________
58 Nev. 54, 54 (1937) State v. Down Et Al.
STATE OF NEVADA on the Relation of GEORGE A. MARSHALL, Relator, v. JAMES H.
DOWN, H. P. MARBLE, HERBERT KRAUSE, H.L. PERRY, Individually and as
Members of the Board of Commissioners of the City of Las Vegas, Clark County, State
of Nevada, and LEONARD L. ARNETT, Individually and as Mayor of the City of Las
Vegas, Clark County, State of Nevada, and VIOLA BURNS, Individually and as the City
Clerk of the City of Las Vegas, Clark County, Nevada, Respondents.
No. 3200
June 3, 1937. 68 P.(2d) 567.
1. Prohibition.
Prohibition proceeding could not be maintained to prohibit city officials from amending city charter since
act sought to be prohibited was ministerial and not judicial in character (Laws 1911, c. 132, as amended).
2. Prohibition.
The sole office of writ of prohibition is to prevent courts and boards from transcending limits of their
jurisdiction in exercise of judicial but not ministerial power.
Original prohibition proceeding by the State, on the relation of George E. Marshall, against
James H. Down and others. Proceeding dismissed.
George E. Marshall, pro se:
We contend that the board of city commissioners is attempting to exercise a judicial
function, which is absolutely necessary to a strict following of chapter 77 of the Laws of
1937, which requires that the petition be shown or exhibited to each of the signers prior to the
signature being affixed thereto. It is my contention that it is a judicial function to make such a
determination, and, also, that to determine whether or not the alleged sixty percent are
qualified voters and by whom the petition is verified are judicial functions. Arnold v. Shields,
30 Am. Dec. 669; Williamson v. Mingo County Court, 56 W. Va. 38, 48 S. E. 835, 3 Ann.
Cas. 355, 357, notes.
Ryland G. Taylor, City Attorney; Ham & Taylor; and Gray Gubler, for Respondents:
It is elementary that prohibition will not run to an individual, as such. Then it follows that if it
is available at all in this instance, it is available against the respondents as officers and
members of the legislative body of the city of Las Vegas. It being a legislative body and
possessing a multiplicity of other functions, none of which, however, are judicial, the writ in
the first instance will not avail as against this body. Low v. Crown Point Mining Co., 2 Nev.
75; O'Brien v. Trousdale, 41 Nev. 90, 167 P. 1007; In re Cowles, 52 Nev. 171; 283 P. 400;
Haviland v. Foley, 55 Nev. 455.
OPINION
By the Court, Coleman, C.J.:
This is an original proceeding in prohibition.
The petitioner alleges that at all times mentioned the city of Las Vegas is a municipal
corporation, organized and existing pursuant to an act of the legislature approved March
16, 1911 {Laws 1911, c.
and existing pursuant to an act of the legislature approved March 16, 1911 (Laws 1911, c.
132), and amendments thereof; that certain individuals constitute the board of commissioners
of said city; that Leonard L. Arnett is the duly elected, qualified, and acting mayor thereof;
and that Viola Burns is the city clerk of said city.
It is further averred that pursuant to the provisions of the charter of said city it is provided
that on the first Tuesday after the first Monday in May 1937, there shall be elected at an
election to be held in said city the following officers of said city, namely: Two city
commissioners, one city attorney, one municipal judge, and one city clerk; and that said
general election was ordered by the board of commissioners of said city prior to the first
Monday in March 1937; that relator is a duly qualified and nominated candidate for city
attorney of said city, to be voted for at said election.
It is further averred that said Arnett, individually and as mayor of said city, did, during the
months of March and April 1937, circulate and cause to be circulated certain petitions
providing for amending the city charter of said city and for the purpose of depriving relator
from having his name and the names of other candidates for the office of city attorney to be
placed upon the ballot and to be voted upon at the election to be held in the month of May
1937, as heretofore recited.
It is further alleged that the respondent Burns intends to file said petitions in the office of
the city clerk of said city, and that the respondents, members of the board of commissioners
of said city, and the mayor thereof, will by resolution approve and adopt said proposed
amendment to the city charter of said city.
The petition makes certain allegations of fraud and formal allegations not necessary to
herein set forth.
Respondents filed both a demurrer and answer to the said petition.
This matter was submitted to the court on April 26, and in view of the fact that the
election was to be held on Tuesday, May 4, and the necessity of action in said matter, in
case of a denial of the writ, printing of ballots, etc., it was stipulated by counsel that we
might make an order disposing of the matter on April 27, and subsequently file a written
opinion.
and in view of the fact that the election was to be held on Tuesday, May 4, and the necessity
of action in said matter, in case of a denial of the writ, printing of ballots, etc., it was
stipulated by counsel that we might make an order disposing of the matter on April 27, and
subsequently file a written opinion. On the day last mentioned, the court entered an order
dismissing the proceedings.
1. Whatever else may be said in justification of the order of dismissal, it is clear that the
petitioner was entitled to no relief for the reason that the act sought to be prohibitedthat is,
amending of the city charteris ministerial and not judicial in character. Nothing can be said,
and nothing is said by petitioner, to the effect that the adoption of an amendment to the
charter as proposed is judicial in character.
2. It is a well-recognized rule in this jurisdiction that the sole office of the writ of
prohibition is to prevent courts and boards from transcending the limits of their jurisdiction in
the exercise of judicial but not ministerial power.
This is such a well-recognized rule that we need simply cite the decisions in point, which
are: Low v. Crown Point M. Co., 2 Nev. 75; O'Brien v. Board of Commissioners, 41 Nev. 90,
167 P. 1007; In re Cowles, 52 Nev. 171, 283 P. 400; Haviland v. Foley, 55 Nev. 455, 39 P.
(2d) 198.
Proceedings dismissed.
____________
58 Nev. 58, 58 (1937) State v. Rollings
THE STATE OF NEVADA, Respondent, v. RALPH ROLLINGS, Appellant.
No. 3180
June 4, 1937. 68 P. (2d) 907.
1. Criminal Law.
Six continuances for more than six days of preliminary examination upon charge of assault with intent to
kill did not deprive committing magistrate of jurisdiction, even if his action was erroneous, where
defendant was not prejudiced in respect to a substantial right (Comp. Laws, secs. 10771, 11100, 11266).
2. Criminal Law.
A committing magistrate's action in continuing to recognize attorney whom defendant had discharged, if
erroneous, was harmless, where it was not alleged that magistrate failed to permit defendant to send
message to any counsel in township or city, as required by statute, nothing prejudicial to defendant
occurred, and magistrate later recognized defendant's new attorney (Comp. Laws, sec. 10769).
Appeal from Eighth Judicial District Court, Clark County. Wm. E. Orr, Judge.
Ralph Rollings was convicted of an assault with a deadly weapon with intent to inflict
bodily injury, and he appeals. Affirmed.
A. A. Hinman, for Appellant:
The preliminary examination must be had without delay. Secs. 10744, 10764, 10768,
10770 N. C. L.
The examination must be completed in six days, unless by consent or motion of the
defendant. Section 10771 N. C. L.
This requirement is jurisdictional. Ex Parte Ah Kee, 22 Nev. 374, 40 P. 879.
The defendant had an absolute right to counsel of his own choice at every stage of the
preliminary proceedings. Art. I, sec. 8, Constitution of Nevada; secs. 10654, 10768-9 N. C.
L.; State v. Crosby, 24 Nev. 115, 122, 50 P. 127; 8 R. C. L. 83, nn. 1, 4; State v. Oberst
(Kan.), 273 P. 490, 492; Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 84 A. L. R. 527,
532.
Attorneys-General; Roger Foley, District Attorney, and A. S. Henderson, Deputy District
If, under our Nevada practice, a motion to set aside an information could be made upon the
ground set forth in section 995, Penal Code of California, that before the filing thereof the
defendant had not been legally committed by a magistrate, the facts shown by the so-called
plea in abatement set forth in the transcript on appeal, entitled Preliminary Examination Not
in Time would not be sufficient upon which to base such a motion. Ex Parte McGee, 44
Nev. 23, 189 P. 622; People v. Van Horn, 119 Cal. 323, 51 P. 538, 539.
A review of the record in this case will not disclose an instance where the defendant was
prejudiced or deprived of a substantial right. If the conduct of the magistrate was erroneous in
dealing with the matter of objection to one attorney and the substitution of another, it can be
said, as was said in the case of State v. Foster (N. D.), 105 N. W. 938, it was, in that event, a
mere matter of error in the proceedings.
OPINION
Appellant was convicted of an assault with a deadly weapon with intent to inflict bodily
injury. He will be hereinafter referred to as the defendant.
On his arraignment he presented what are designated pleas in abatement. The state
objected to the filing of these pleas, two in number, upon the grounds that they were not
authorized by law and did not state sufficient facts to constitute pleas in abatement, and
moved to strike the same. The court rendered a decision rejecting the pleas, stating therein
that they were not countenanced within the laws of this state and were not within the
provisions of our practice.
At the trial defendant was sworn as a witness and offered to prove the allegations in the
pleas by his own testimony and the magistrates record of his preliminary examination. The
offer was denied by the court. Defendant moved in arrest of judgment and for a new trial, and
offered on each motion the record of the proceedings of the preliminary examination. These
motions and offers were denied. The pleas, which are in writing, state in substance that
defendant's preliminary examination upon a charge of assault with intent to kill, for which he
was held to answer, was not heard within the time required by law, and that he was refused
counsel of his own choice at such examination. In connection therewith it appears from these
pleas that defendant was brought before the committing magistrate on said charge on the 18th
day of August 1936, at which time and place Louis Cohen, an attorney at law, appeared as his
attorney, and the time for defendant's preliminary examination was set for the 21st day of
August 1936, at 10 a.m. On said 18th day of August, defendant and said attorney entered into
an agreement for the latter to represent him as his attorney at the preliminary examination. On
the 19th day of August 1936, defendant discharged said Louis Cohen as his attorney. When
the preliminary examination came on for hearing on the said 21st day of August 1936, said
Louis Cohen attempted to appear for defendant, whereupon the latter stated to the magistrate
that he did not want Cohen for his attorney, but the magistrate continued to recognize Cohen
as defendant's attorney, and upon motion of the attorney, but without the consent of
defendant, the preliminary examination was continued to August 24, 1936, at 2 o'clock p.m.
At the preliminary examination on the latter date, Cohen again attempted to appear for
defendant, who again stated to the court that he did not want Cohen for his attorney,
whereupon the court told defendant that he could not discharge the attorney without paying
him, or without just cause or reason.
him, or without just cause or reason. The defendant then told the court that Cohen was trying
to beat him out of what little money he had, but notwithstanding, the court continued to
recognize Cohen as defendant's attorney, and upon the latter's motion, but without the consent
of defendant, continued the preliminary examination until the 27th day of August at 4 o'clock
p.m. When the preliminary examination came on for hearing at that time, Cohen again
attempted to appear as defendant's attorney, whereupon the defendant moved that A. A.
Hinman, an attorney at law, be substituted of record as his attorney in the action. Thereupon,
upon motion of Cohen, but without defendant's consent, the court continued the preliminary
hearing and motion to substitute until the 28th day of August 1936, at 2 o'clock p.m. On that
date, said Cohen again attempted to appear as defendant's attorney. On motion of the state,
but without defendant's consent, the preliminary examination and motion to substitute was
continued by the court until the 31st day of August 1963. When the preliminary examination
came on for hearing on the latter date, the court denied defendant's motion, and on its own
motion granted the defendant leave to be represented by another attorney. Whereupon, upon
request of defendant, said A. A. Hinman was entered as attorney of record for the defendant
in the action, and the preliminary examination was continued to the 9th of September 1936, at
3 o'clock p.m., at which time defendant was represented by said Hinman as his attorney, who
moved for a dismissal of the complaint upon the ground that the preliminary examination was
not completed in six days from the time of arrest or arraignment, and that the delay was not
caused by the consent or on motion of the defendant. The motion was denied by the court and
exception allowed, and leave granted to cross-examine witnesses without a waiver of his
legal rights. The hearing was then continued to the 14th day of September 1936, at 3 o'clock
p.m., for the reading of the transcript of the testimony of said witnesses.
the reading of the transcript of the testimony of said witnesses. On the 14th and 15th of
September the reading of the testimony was concluded, and the defendant was held to answer
the charge.
The defendant assigns as error the action of the court in rejecting his pleas in abatement
and argues that it was so, first, because the committing magistrate continued the preliminary
examination beyond the statutory time; and, second, because he was refused counsel of his
own choosing thereat. On the other hand, the state insists that there was no error in the ruling
of the court rejecting these pleas, first, because such a plea has no place in our practice; and,
second, because if warranted by law neither of the pleas states facts sufficient to constitute a
ground for setting aside the information. The state further insists that if there was error, it was
nonprejudicial.
1. Assuming, without deciding, that the common-law plea in abatement has not been
abolished in this state, we hold that the first branch of defendant's contention under the
assignment is not maintainable. It is based on section 10771 N. C. L., which reads: The
examination must be completed in one session, unless the magistrate for good cause shown,
adjourns it. The adjournment cannot be for more than two days at a time, nor for more than
six days in all, unless by consent or on motion of the defendant.
The question is foreclosed by our decision in Ex Parte McGee, 44 Nev. 23, 189 P. 622, in
which we held that a continuance of a preliminary examination from June 21 to July 3 did not
deprive the magistrate of jurisdiction. In that case we adopted the ruling in People v. Van
Horn, 119 Cal. 323, 51 P. 538, 539, quoting from it as follows: We do not think that a
postponement of the preliminary examination beyond six days, whether erroneous or not,
affected the jurisdiction. If the postponement worked appellants any legal wrong, such wrong
consisted in their temporary illegal confinement by the officer who had them in custody, for
which, if not lawful, there would have been a remedy at the time."
by the officer who had them in custody, for which, if not lawful, there would have been a
remedy at the time.
The California Penal Code, sec. 861, claimed in the foregoing case to have been violated,
is almost literally the same as said section 10771 N. C. L. Defendant seeks to distinguish Ex
Parte McGee, but there is no material difference. The fact that the adjournments in the instant
case were in the aggregate somewhat longer than the time in the former is of no importance.
The action of the magistrate may have been erroneous, but even if so, an examination of the
record reveals that it did not prejudice the defendant in respect to a substantial right. Such an
error must be disregarded. Sections 11100 N. C. L., 11266 N. C. L.; State v. Mircovich, 35
Nev. 485, 130 P. 765; State v. Foster, 14 N. D. 561, 105 N. W. 938.
2. The assignment as to the other branch of defendant's contention, namely, refusal by the
magistrate to permit him to have counsel of his own choosing, if error at all, falls into the
category of harmless error. No absolute refusal of such permission appears from the matter
set forth in the pleas. It appears therefrom that Cohen was the attorney of his choice when he
was brought before the committing magistrate on August 18; that on the next day on account
of differences as to the amount of attorney fee to be paid Cohen, defendant discharged him.
Thereafter the preliminary examination was continued from time to time with Cohen
appearing as defendant's attorney against his wishes on each occasion, until A. A. Hinman,
his present attorney, was entered as such, who continued to represent defendant throughout
the preliminary examination. It does not appear that anything occurred in the meantime from
which defendant suffered prejudice. Insofar as the record discloses, no witnesses were
examined. Counsels' statements about the examination of the complaining witness are off the
record, but as far as anything to the contrary appears, the examination was had at a time when
Cohen was properly representing defendant.
when Cohen was properly representing defendant. At any rate, it does not appear that Hinman
asked for a reexamination of this witness. It is not unreasonable to assume that the
continuances of which defendant now complains were ordered for the purpose of giving
defendant and his attorney Cohen opportunity to adjust their differences concerning the
amount of fee, or to give defendant opportunity to obtain satisfactory counsel. It is not alleged
in the pleas that the magistrate at any time neglected to give him the opportunity to have a
message sent to any counsel in the township or city, as required by section 10769 N. C. L.
While the matter set forth in the pleas may show some room for error on the part of the
magistrate, such as recognizing Cohen as defendant's attorney after his discharge, it shows no
prejudice. On the whole we are certainly not prepared to say that the magistrate's action in
this respect amounted to depriving defendant of his right to counsel within the meaning of the
constitutional and statutory provisions guaranteeing that right.
The other assignments of error by defendant go to the same points and are governed by
what we have said. They show no ground for reversal.
It is not contended that defendant did not have a fair and impartial trial on the information,
or that the evidence does not justify the verdict and judgment.
The judgment and order denying the motion for a new trial should be affirmed, and it is so
ordered.
July 26, 1937.
Per Curiam:
Rehearing denied.
____________
58 Nev. 65, 65 (1937) State v. Fisko
THE STATE OF NEVADA, Respondent, v. IVER FISKO, Appellant
No. 3179
July 30, 1937. 70 P. (2d) 1113.
1. Homicide.
In prosecution for murder, failure to submit instructions on issue of manslaughter where there was no
evidence to prove latter offense was not error (Comp. Laws, secs. 9974, 11001, 11017).
2. Homicide.
In prosecution for murder, evidence that deceased wife of accused induced by fear for her safety threw
her arms around neck of accused in attempt to hold him from violence though showing technically an
assault did not have probative effect as being of character likely to excite in a reasonable person an
irresistible impulse to kill so as to reduce offense to voluntary manslaughter (Comp. Laws, secs. 10070,
10081).
3. Homicide.
Neither slight provocation nor an assault of trivial nature will reduce a homicide from murder to
manslaughter (Comp. Laws, secs. 10069, 10070, 10071).
4. Homicide.
In prosecution for murder, evidence that accused was drunk on day he shot wife and could remember
nothing of affair did not have probative effect of reducing offense of murder to involuntary manslaughter
(Comp. Laws, secs. 10069, 10070, 10071).
5. Homicide.
In prosecution for murder where evidence showed that accused shot wife while he was so intoxicated he
could not remember affair, killing was murder though no conscious intent to kill existed where by statute
malice was implied from unlawful use of deadly weapon (Comp. Laws, sec. 10072).
6. Homicide.
In prosecution for murder, testimony of accused that he was intoxicated when he shot his wife was
immaterial except as to whether killing was willful, deliberate, and premeditated (Comp. Laws, sec. 9966).
7. Homicide.
Generally, fact that accused was intoxicated cannot operate to reduce degree of crime from murder to
manslaughter.
8. Homicide.
In prosecution for murder, where there was no evidence showing crime to have been manslaughter,
refusal to give jury form of verdict on manslaughter was not error.
9. Homicide.
In prosecution for murder, evidence of mental deterioration and insanity of accused did not require giving
of instructions on manslaughter since if, by reason of insanity, accused did not know the
nature and quality of his act he was absolved from all guilt and in whatever lesser
degree his mind was affected, he was amenable to punishment as one of normal mind
{Comp.
58 Nev. 65, 66 (1937) State v. Fisko
on manslaughter since if, by reason of insanity, accused did not know the nature and quality of his act he
was absolved from all guilt and in whatever lesser degree his mind was affected, he was amenable to
punishment as one of normal mind (Comp. Laws, secs. 10069, 10070, 10071).
10. Homicide.
In prosecution for murder where instructions on defense of insanity were fair and evidence conflicting,
verdict could not be disturbed on grounds that no instructions on manslaughter were given.
11. Criminal Law.
In prosecution for murder, failure to submit to jury forms of verdict of not guilty by reason of insanity
where no request was made to give such form was not error.
12. Homicide.
In prosecution for murder, instruction with reference to murder of the first degree setting forth that intent
to kill must be formed on a pre-existing reflection and that there may be no appreciable space of time
between intention to kill and act of killing and that they may be instantaneous as successive thoughts of
mind, was not error.
On Petition for Rehearing.
13. Homicide.
In prosecution for murder, evidence as to disparity of weight and strength between accused and deceased
wife was irrelevant in absence of plea of self-defense.
Iver Fisko was convicted of the crime of murder of the first degree, and he appeals.
Affirmed.
Gordon W. Rice, John Alfred Beyer and Harlan L. Heward, for Appellant:
When the trial court took manslaughter from the consideration of the jury he violated
statutory provisions and invaded the province of the jury as the same is defined by the
legislature. State v. Lindsey, 19 Nev. 47, 5 P. 822; Ex Parte Curnow, 21 Nev. 33, 24 P. 430;
State v. Oschoa, 49 Nev. 194-202, 242 P. 582; State v. Acosta, 49 Nev. 184, 242 P. 316; Ex
Parte Todd, 46 Nev. 214, 210 P. 131; sec. 12, art. VI, Constitution of Nevada.
If the court decides that the statute is not controlling under all conditions of proof, we
contend that the conviction must be reversed for the failure of the trial court to give
manslaughter instructions and form of verdict under the proof in this particular case.
58 Nev. 65, 67 (1937) State v. Fisko
under all conditions of proof, we contend that the conviction must be reversed for the failure
of the trial court to give manslaughter instructions and form of verdict under the proof in this
particular case. We call attention to three items of proof, any one of which it would seem
requires the giving of such instructions and form of verdict: (1) That the deceased committed
an assault and battery upon defendant immediately prior to the shooting; (2) the evidence as
to excessive use of intoxicating liquor both prior to and on the date of the shooting; (3) the
evidence of mental deterioration and insanity. Stevenson v. U. S., 162 U. S., 313. 40 L. Ed.
980, 16 Sup. Ct., 839; State v. Johnny, 29 Nev. 203, 87 P. 3; Nevarez v. State (Ariz.), 196 P.
449; Neeld v. State (Okla.), 30 P. (2d) 193; State v. Davis (N. M.), 14 P. (2d) 267; State v.
Kidd, (N. M.), 175 P. 772; State v. Clark (Ore.), 196 P. 360, 368; Burns v. State (Ala.), 155
So. 561; People v. Jones (Cal.), 117 P. 176; Echols v. State (Ga.), 168 S. E. 790; Morris v.
State (Ga.), 167 S. E. 509; State v. Buffington (Kan.), 72 P. 213; Shorter v. Comm. (Ky.), 67
S. W. (2d) 695; Vaughn v. Comm. (Ky.), 263 S. W. 752; Jones v. Comm. (Ky.) 216 S. W.
607; People v. Austin (Mich.),192 N. W. 591; State v. Sterling (Mo.) 72 S. W. (2d) 70; Dolan
v. State (Neb.), 62 N. W. 1090; Smith v. State (Okla.), 56 P. (2d) 923; Garland v. State
(Tex.), 291 S. W. 244; Steen v. State (Tex.), 225 S. W. 529; Nelson v. State (Tex.), 206 S. W.
361; State v. Gottstein (Wash.). 191 P. 766.
Clearly the evidence in this case warranted the giving of a form of verdict reading not
guilty by reason of insanity. The trial court, by his failure to give such a form of verdict, in
effect took insanity out of the picture and deprived the defendant of a substantial right. Secs.
11014 and 11015 N. C. L.
The phraseology 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," in
an instruction differentiating between first degree and second degree murder, is
reversible error.
58 Nev. 65, 68 (1937) State v. Fisko
thoughts of the mind, in an instruction differentiating between first degree and second
degree murder, is reversible error. State v. Anselmo (Utah), 148 P. 1071; State v. Stenback
(Utah), 2 P. (2d) 1050; State v. Hall (N. M.), 55 P. (2d) 740; State v. Sykes (Iowa), 209 N. W.
458; McDonald v. State (Miss.), 29 So. 171; State v. Clayton (N. J.), 85 Atl. 173.
Gray Mashburn, Attorney-General; W.T. Mathews and W. Howard Gray, Deputy
Attorneys-General; Ernest S. Brown, District Attorney; and Nash P. Morgan, Deputy District
The great weight of authority is contrary to appellant's contention that it was error to fail to
give manslaughter instruction even if there was no evidence to support such instructions. 21
A. L. R. 603; 27 A. L. R. 1097; 102 A. L. R. 1019. Further, the question is settled by three
decisions of this court, namely, State v. Millain, 3 Nev. 409; State v. Donovan, 10 Nev. 36;
and State v. Johnny, 29 Nev. 203, 87 P. 3.
The issue of insanity was fully and fairly presented to the jury, which found against
appellant on that issue. Appellant was either sane or insane and guilty or not guilty by reason
thereof. There is no middle ground, and such evidence does not tend to prove manslaughter,
either voluntary or involuntary. Foster v. State (Ariz.), 294 P. 269; Harris v. Commonwealth
(Ky.), 209 S. W. 509.
Any evidence of defendant's intoxication would only be relevant upon a consideration of
whether he had committed first or second degree murder. In such instances, though the killing
be involuntary and without conscious intent, malice is implied by our statutes, thus making
the act second degree murder. Secs. 9966, 10066, 10068, 10070, 10071, 10072 N. C. L. Any
evidence of intoxication, therefore, would be immaterial on the question of reduction of the
homicide from second degree murder to manslaughter. People v. Nichol, 34 Cal.
58 Nev. 65, 69 (1937) State v. Fisko
Cal. 215; People v. Langton (Cal.), 7 P. 843; State v. Johnny, 29 Nev. 203, 87 P. 3.
It is not every assault that reduces murder to manslaughter. State v. Anderson, 4 Nev. 276.
And the provocation must be great where a deadly weapon is used. State v. Raymond, 11
Nev. 98; State v. Crozier, 12 Nev. 300; State v. White (N. C.), 51 S. E. 44, 48.
If appellant desired that the jury be furnished with a form of verdict for use in case they
should find the defendant not guilty by reason of insanity, he should have requested or
furnished it. State v. St. Clair, 16 Nev. 207.
It is a matter of law that the premeditated and deliberate intent to kill must be formed some
time, however brief, before the act, and this is all that the jury were told in the instruction
complained of. State v. Harris, 12 Nev. 416; State v. Hymer, 15 Nev. 49, 54; State v.
Randolph, 49 Nev. 241, 242 P. 697; State v. Williams, 59 Nev. 271, 257 P. 619.
OPINION
Appellant was convicted of the crime of murder of the first degree for killing his wife. The
jury fixed his punishment at death and he was sentenced accordingly. He assigns as error the
refusal of the court to give an instruction on manslaughter and form of verdict for such
offense.
1. The first contention under this assignment is that it is the duty of the court in every case
of murder to submit to the jury, under proper instructions, the issue of manslaughter, even
though there is no evidence to prove the latter offense. It is argued that the intention of the
legislature as to that duty is made manifest by sections 11017 N. C. L., 11001 N. C. L., and
9974 N. C. L. This court has repeatedly decided to the contrary. State v. Millain, 3 Nev. 409;
State v. Donovan, 10 Nev. 36, and State v. Johnny, 29 Nev. 203
58 Nev. 65, 70 (1937) State v. Fisko
v. Millain, 3 Nev. 409; State v. Donovan, 10 Nev. 36, and State v. Johnny, 29 Nev. 203, 87 P.
3, 9. In each of these cases the accused was convicted of murder of the first degree and it was
held that there was no error in refusing to instruct on manslaughter. When these cases were
decided, the sections referred to were in force. It would seem, therefore, that the question is
settled. But the cases of State v. Lindsey, 19 Nev. 47, 5 P. 822, 3 Am. St. Rep. 776, and State
v. Oschoa, 49 Nev. 194, 242 P. 582, are adverted to, and it is claimed that they declare a rule
in flat conflict with that laid down in the former cases. We perceive no conflict. In State v.
Lindsay, supra, the accused was charged with murder by the administering of poison, and the
jury found her guilty of murder in the second degree. It was held that they were empowered to
do this for the reason that the statute leaves the question of degree to be settled by the jury.
The court said, if the jury fix the crime at murder in the second degree, in a case where the
law and facts make it murder in the first degree, it is error in favor of the prisoner, of which
the law will not take cognizance, and of which the prisoner ought not to complain.
In the State v. Oschoa, supra, in which the accused was charged with murder, he was
convicted of involuntary manslaughter. It is contended that there was no evidence of any
crime except murder. The court held that if this were the fact, the accused could not
complain, for the reason that the statute leaves it to the jury to find any grade of homicide
within the crime charged. It was pointed out, however, that the circumstances did not exclude
manslaughter.
Such is the difference between these classes of cases. Where is the conflict between a rule
that, in a case of homicide when the evidence tends only to prove a higher degree of crime,
the court may properly refuse all instructions as to manslaughter, and one that in such a case
the accused may not complain of a verdict of manslaughter? There is none.
58 Nev. 65, 71 (1937) State v. Fisko
The rule announced in State v. Millain, supra, and adhered to in State v. Donovan and
State v. Johnny, is in accord with the great weight of authority. See 21 A. L. R. 607 et seq.; 27
A. L. R. p. 1098 et seq., and 102 A. L. R. p. 1021 et seq. There is nothing in the reasoning of
appellant's counsel to persuade a departure from that rule.
The next contention under the assignment is that the record discloses evidence tending to
prove manslaughter and which made it imperative for the court to instruct as to that offense.
A summary of the evidence affording an intelligent view of the transaction is necessary.
Appellant killed his wife, Marie Fisko, by shooting her with a rifle on February 20, 1936,
at about 5 p.m., at their home in Reno. He shot her twice, once in the head and once in the
back, and then shot himself with the same weapon, inflicting a wound in the head which did
not prove fatal. They were married in July 1932, and had one child, a daughter, three years of
age. Deceased had two children by a former marriage, Mrs. Lois Rice, and a younger daughter
fourteen years of age named Marie Swanson. Appellant and his wife lived for most of their
married life at the Gallery Hotel in Reno. They moved from there to a house on Bell street in
January 1936. They had separated about two weeks before the homicide occurred and a
divorce was contemplated. During this time appellant, except on the night of the 17th of
February, did not sleep at the house, but usually came in for dinner. On the 20th of February
Mrs. Fisko was preparing to move to the Humboldt Apartments in Reno, and her daughter
Lois, and the latter's mother-in-law, Mrs. Emma Rice, were engaged in cleaning the house
preparatory to the change of abode. While they were so engaged, it was discovered that
appellant was upstairs in bed. When Mrs. Fisko came home a short time afterwards, she was
informed of appellant's presence. Emma Rice testified that Mrs. Fisko then went upstairs and
soon they came down into the living room, appellant preceeding her. He was swearing a
little.
58 Nev. 65, 72 (1937) State v. Fisko
was swearing a little. Mrs. Fisko spoke about the garbage on the back porch and told him to
get his clothes out as she wanted to turn the key in. Appellant said all he had ever done for
her was pack rubbish and garbage, and went out. In about fifteen or twenty minutes he
returned. He came to the front door, which was locked to keep the baby in. The witness
opened the door and let him in. He locked the door. His wife was on the back porch, close to
the back door of the porch, and he asked her just how far she expected him to get on $10. She
replied: Calm yourself, Fisko, and we will talk this matter over later. She then passed
through between him and the witness and went into the living room. He reached for the gun,
you see, into the cellar way there. * * * I didn't see him get the gun, but I saw him have the
gun. He followed her into the living room holding the gun in both hands. She grabbed him
from the back around the neckaround his throat, and held him for a few seconds, crying to
the witness to take the baby and call the police. She broke her hold, rushing back, calling
again to the witness to take the baby and summon the police. When she was almost to the
back door, appellant was behind her. The witness heard him say that she was no good and
didn't amount to anything, and he said he guessed she wanted another man, and he fired. The
witness explained that instead of using the word man he employed an obscene expression
meaning illicit sexual intercourse. When he fired, Mrs. Fisko's hand was up on the back door
of the porch and she was facing the back door. The witness took the child and went out the
front door. Before she got the front door unlocked, the second shot was fired. Mrs. Fisko was
facing the back door of the porch at that time. After she had notified some neighbors and
was on her way back, the witness head the third shot. On cross-examination the witness
testified that appellant made no threats and did not indicate that he was going to murder or
hurt his wife, but, just said she was crooked and no good.
58 Nev. 65, 73 (1937) State v. Fisko
Emma Rice was the only witness to the shooting. Her daughter-in-law, Lois Rice, who left
the house shortly after the appellant returned, testified in substance that when she returned to
the house from taking some things away she saw appellant in the living room and he was
mumbling and cussing a little. He then went outside and coming back in asked her mother
(Mrs. Fisko): Where is my gun? Her mother said: It is out where it always is, and
gestured towards the closet-way to the cellar. He went out there and looked and then went off
in the car. He was not drunk.
Marie Swanson testified that on the night of the 17th of February 1936, she came home at
about 11 o'clock at night and her mother told her that appellant was in the front bedroom.
About the middle of the night he started in swearing and making a lot of noise. Mrs. Fisko
said she would go in and calm him. She went in and the witness went to sleep. In the middle
of the night she woke up and heard him swearing. He was in a very angry mood. He said that
nobody would take his baby away from him, he would kill them first. The witness further
testified that on the afternoon of February 20th when she came home from school she saw
appellant in the living room. He was swearing. She further testified that three or four days
after her mother and appellant separated she heard her tell him at the home on Bell street,
that he had had his last chance and that she was going to live at a place she hadn't had, the
Humboldt Apartments; then said she was going to live over there and that she would give him
the divorce.
Joseph L. Kirkley, a police officer, who was called to the scene of the shooting, testified
that he fould appellant lying on the floor of the living room with a rifle beside him, and the
body of Mrs. Fisko on the back porch near the back door. There was a bottle of whisky partly
filled on the floor of the living room.
Mrs. Bertha Wilkinson, superintendent of nurses at the Washoe General Hospital, testified
that appellant was brought there on February 20, 1936, suffering from a gunshot wound on
the side of the face.
58 Nev. 65, 74 (1937) State v. Fisko
a gunshot wound on the side of the face. She assisted in removing his clothes and personal
effects. Among these personal effects was a check for $10 drawn in his favor on the First and
Virginia Branch, First National Bank, Reno, Nevada, by Marie Fisko.
Appellant testified that he had been drinking intoxicating liquor for twelve or thirteen
years; that he got drunk often, nearly every day; that during the past three years he consumed
a quart or two of whiskey every day. He testified that he and his wife had not separated, and
denied that he had made the statement that he would kill anybody who tried to take his baby
away from him. As to February 20th, he testified that after getting up in the morning he drove
to the home of Mrs. Thomas and that he did not remember anything that happened after that;
that he had been drinking the night before and had a pint in his car when he went to the home
of Mrs. Thomas. He thought he drank it all.
There was other testimony on the part of the defense as to his habit of drinking and of his
being under the influence of liquor on the day of the homicide.
The above statement of the evidence is not exhaustive, but none is omitted that has any
bearing upon the issue of manslaughter sought to be raised. We find none that tends in any
degree to raise that issue. Section 10069 N. C. L. provides in part:
Manslaughter is the unlawful killing of a human being, without malice express or
implied, and without any mixture of deliberation.
Section 10070 N. C. L. provides:
In cases of voluntary manslaughter, there must be a serious and highly provoking injury
inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable
person, or an attempt by the person killing to commit a serious personal injury on the person
killing.
Section 10071 N. C. L. provides:
The killing must be the result of that sudden violent impulse of passion supposed to be
irresistible; for, if there should appear to have been an interval between the assault or
provocation given and the killing, sufficient for the voice of reason and humanity to be
heard, the killing shall be attributed to deliberate revenge, and punished as murder."
58 Nev. 65, 75 (1937) State v. Fisko
impulse of passion supposed to be irresistible; for, if there should appear to have been an
interval between the assault or provocation given and the killing, sufficient for the voice of
reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and
punished as murder.
2, 3. It is claimed that the deceased committed an assault and battery upon appellant
immediately prior to the shooting, by throwing her arms around his neck, and that that was
evidence tending to prove manslaughter. The evidence strongly points to the lawfulness of the
act because apparently induced by fear for her safety and the safety of her child. His inquiry
for his gun and satisfying himself where it was, his angry mood, his drinking, his suddenly
seizing the loaded rifle and following her from the kitchen to the living room, were
circumstances giving cause for such apprehension. But conceding, without deciding, the act
to have been technically an assault and battery, we cannot attribute it to such probative effect
as being of a character likely to excite, in a reasonable person, an irresistible impulse to kill.
We think it unreasonable to consider it so serious and highly provoking as that.
Presumptively the killing was murder. Section 10081 N. C. L. Neither slight provocation nor
an assault of a trivial nature will reduce a homicide from murder to manslaughter. State v.
Anderson, 4 Nev. 265; 2 Bish. Cr. Law (9th ed.), p. 535. No personal injury was inflicted or
attempted to be inflicted upon him. The woman held him but a second or two and then fled
fearfully, the event proving her fears to have been well founded. Being his wife and the
mother of his child made a situation quite different that if one not so intimately related had by
the act attempted to injure him or put an indignity upon him. 2 Bish. Cr. Law (9th ed.), p.
535. Moreover, appellant in effect disclaimed any heat of passion by testifying that he had no
knowledge whatever of the affair; and that his mind was so clouded with drink that he
remembered nothing of what he did after his visit to the home of Mrs.
58 Nev. 65, 76 (1937) State v. Fisko
remembered nothing of what he did after his visit to the home of Mrs. Thomas in the
morning.
We have examined all the cases presented in the briefs holding that it was error to refuse
instructions on manslaughter in trials for murder, and find none as destitute of evidence
tending to prove the former offense as the instant case. To refer to them in detail and point
out the difference would prolong this opinion unnecessarily. In each there was evidence
which made it proper to submit the issue of manslaughter to the jury. The cases of State v.
Frazer, 14 Nev. 210; State v. Salgado, 38 Nev. 413, 150 P. 764; State v. Green, 45 Nev. 297,
202 P. 368, cited by appellant, contain no ruling bearing on the question.
4. Appellant contends that the evidence as to his drinking for a number of years and of his
intoxication on the day of the shooting, to the extent that he remembered nothing of it, tended
to reduce the offense of murder charged to manslaughter. Certainly it had no such tendency as
to voluntary manslaughter, and we think it had no such probative effect as to involuntary
manslaughter.
5. By the law of this state, no act committed by a person while in a state of voluntary
intoxication is less criminal on this account, saving that when the actual existence of any
particular purpose, motive, or intent is a necessary element to constitute any particular species
or degree of crime, the circumstances of such intoxication may be considered in determining
the fact whether or not that particular purpose, motive, or intent was present. Section 9966 N.
C. L. Assuming that the evidence of intoxication showed that he had no intent to kill, it did
not tend to prove involuntary manslaughter, because the killing happened in the commission
of an unlawful act, which, in its consequences naturally tended to destroy the life of a human
being. Involuntary manslaughter is thus defined in our law:
Involuntary manslaughter shall consist in the killing of a human being, without any
intent so to do, in the commission of an unlawful act, or a lawful act which probably might
produce such a consequence in an unlawful manner; provided, that where such
involuntary killing shall happen in the commission of an unlawful act, which, in its
consequences, naturally tends to destroy the life of a human being, or is committed in the
prosecution of a felonious intent, the offense shall be deemed and adjudged to be
murder."
58 Nev. 65, 77 (1937) State v. Fisko
of a human being, without any intent so to do, in the commission of an unlawful act, or a
lawful act which probably might produce such a consequence in an unlawful manner;
provided, that where such involuntary killing shall happen in the commission of an unlawful
act, which, in its consequences, naturally tends to destroy the life of a human being, or is
committed in the prosecution of a felonious intent, the offense shall be deemed and adjudged
to be murder. Comp. Laws, sec. 10072.
6. Under this statute the killing of the woman by the means employed was murder, even
though there was no conscious intent to kill. Malice is implied from the unlawful use of the
deadly weapon. Consequently, the evidence as to his condition, due to intoxication, was
immaterial, except as to whether the killing was willful, deliberate, and premeditated, and this
issue was resolved against him by the verdict of the jury.
7. While the authorities are not all agreed, the great weight thereof in this country is to the
effect that mere intoxication cannot reduce murder to manslaughter. Weakly v. State, 168
Ark. 1087, 273 S. W. 374; Com. v. Soaris, 275 Mass. 291, 175 N. E. 491; State v. Aragon, 35
N. M. 198, 292 P. 225; Gills v. Com., 141 Va. 445, 126 S. E. 51; Note, 12 A. L. R. p. 888, et
seq.; 13 Cal. Jur. p. 623; Bishop on Criminal Law (9th ed.), p. 296, sec. 401; Harris v.
Commonwealth, 183 Ky. 542, 209 S. W. 509; People v. Nichol, 34 Cal. 211, 215. In People
v. Nichol, supra, it was held:
As between murder in the second degree and manslaughter, the drunkenness of the
offender can form no legitimate matter of inquiry, for manslaughter is the unlawful killing of
a human being, without malice, express or implied, and without any mixture of deliberation.
This decision was approved in People v. Langton, 67 Cal. 427, 7 P. 843, and adhered to in
People v. Conte, 17 Cal. App. 771, 122 P. 450, 457.
This court has heretofore virtually determined that evidence of drunkenness is not
admissible to reduce murder to manslaughter.
58 Nev. 65, 78 (1937) State v. Fisko
evidence of drunkenness is not admissible to reduce murder to manslaughter. In State v.
Johnny, supra, in which one of the defendants testified that he did not know much about what
happened; that he was too drunk to remember; that he remembered holding the murdered
man's hand, and helping to place him on the fire, but further than that he had no recollection
of the occurrence whatever, the court held there was no evidence tending to reduce the
offense to manslaughter. Moreover, the court in that case approved an instruction which
included this statement:
* * * evidence of drunkenness is admissible solely with reference to the question of
premeditation, or where there is evidence tending to show that a murder has been committed
in the perpetration or attempt to perpetrate a robbery, as to the question of the existence of the
felonious intent to steal which is an essential element of robbery.
We think it proper to say, in conclusion of this subject, that if the rule that drunkenness is
no legitimate matter of inquiry as between murder in the second degree and manslaughter
were otherwise, the appellant would not have been prejudiced by the court's refusal to instruct
on manslaughter, because he was found guilty of murder of the first degree, and the penalty
fixed at death.
8. There is no merit in the assignment of error as to the refusal to give the jury a form of
verdict on manslaughter. This is apparent alone from our view that the refusal to give
instructions on manslaughter was not error.
9. It is next contended that evidence of mental deterioration and insanity required the
giving of instructions on manslaughter. We are of the opinion that such evidence was in no
way relevant to reduce the homicide to manslaughter. If by reason of insanity appellant did
not know the nature and quality of his act, and that it was wrong, he was absolved from all
guilt; otherwise in whatever lesser degree his mind may have been affected by drink or
other cause, he is amenable to punishment as one of normal mind.
58 Nev. 65, 79 (1937) State v. Fisko
in whatever lesser degree his mind may have been affected by drink or other cause, he is
amenable to punishment as one of normal mind. Evidence tending to prove any such lesser
degree is pertinent to no issue. There is no middle ground. Foster v. State, 37 Ariz. 281, 294
P. 268, 269. See Harris v. Commonwealth, 183 Ky. 542, 209 S. W. 509. This court, in State
v. Thompson, 12 Nev. 140, approved the following doctrine:
It is, therefore, a legal doctrine, applicable in ordinary cases, that voluntary intoxication
furnishes no excuse for crime committed under its influence. It is so, even, when the
intoxication is so extreme as to make the person unconscious of what he is doing or to create
a temporary insanity. Bishop's Criminal Law, sec. 400.
10. On the issue of insanity there was testimony pro and con. One witness for appellant, a
physician, testified that in his opinion he was insane. Another expert witness on the part of
the state testified that he was sane. There was some nonexpert testimony on each side of this
issue. The court fairly instructed the jury on the law of this defense. Their verdict therefore
cannot be disturbed on such ground.
11. The failure of the court to submit to the jury a form of verdict of not guilty by reason
of insanity is assigned as error. No duty was imposed upon the court to give such form of
verdict. Moreover, it does not appear that counsel requested the giving of such a form. If they
considered its giving of any importance whatever, it was their duty, as stated in State v. St.
Clair, 16 Nev. 207, to have prepared it, or have requested the court to give it.
Appellant complains of an instruction defining murder of the first and second degree, and
making clear the distinction between these degrees. The language, thought erroneous and
harmful, is that employed with reference to murder of the first degree by which it is said:
"There need be no appreciable space of time between the intention to kill and the act of
killing; they may be an instantaneous as the successive thoughts of the mind."
58 Nev. 65, 80 (1937) State v. Fisko
There need be no appreciable space of time between the intention to kill and the act of
killing; they may be an instantaneous as the successive thoughts of the mind.
12. The objection here urged, as we understand it, is that said language was calculated to
mislead the jury into believing that the intent to kill need not be formed anterior to the act of
killing to constitute murder of the first degree. We apprehend no such tendency. The
instruction does not say that no space of time need intervene between the intention and act,
and the thought intended to be conveyed is made clear by the statements immediately
preceding:
The intent to kill * * * must be formed upon a pre-existing reflection. * * *
And immediately following:
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.
The instruction as given in the instant case is set out in full in our decision in State v.
Randolph, 49 Nev. 241, 242 P. 697, and approved. It was there pointed out that a similar
instruction given in the case of State v. Harris, 12 Nev. 414, though criticized as to a portion,
was not held erroneous, and that the instruction under consideration had been drawn to meet
that criticism. It will be seen by a reference to the latter case that the instruction was not there
criticized as to the language complained of here, but as to that which it was thought would be
more likely in some cases to prejudice the state than any defendant.
The instruction assailed was lastly approved by this court in State v. Williams, 50 Nev.
271, 257 P. 619. It is the established law of this state, and we are not impressed with the
principles stated in State v. Anselmo, 46 Utah 137, 148 P. 1071, and State v. Stenback, 78
Utah 350, 2 P. (2d) 1050, 79 A. L. R. 878, as reasons for the contrary rule announced in those
cases.
58 Nev. 65, 81 (1937) State v. Fisko
We have carefully considered the case. There is no error in the record. The evidence,
which the jury apparently believed, reveals a case typical of a large class. A woman leaves, or
prepares to leave, her husband; he drinks intoxicating liquor; makes threats; arms himself
with a deadly weapon; seeks her out and slays her. The evidence supports the verdict and
judgment.
The judgment and order appealed from are affirmed, and the district court is directed to
make a proper order for the carrying into effect by the warden of the state prison the judgment
rendered.
September 3, 1937. 70 P. (2d) 1119.
Rehearing denied.
OPINION
A petition for a rehearing has been presented in which it is claimed that this court
overlooked evidence that tended to prove manslaughter, requiring a submission of that issue
to the jury.
The evidence claimed to have been disregarded is said to be the choking of the appellant
by Mrs. Fisko when she threw her arms around his neck, and the great disparity in weight
between the husband and wife.
13. It appears from the testimony that appellant weighed one hundred and forty pounds,
and the deceased two hundred and seventy-five pounds. We did not state the fact of this
disparity in our opinion because we considered it irrelevant. It does not follow that there was
any disparity in strength, and if we should enter the field of presumptions, the greater strength
would be attributed to the appellant. However, the relative strength or weight of the two is of
no evidentiary value in this case. If the appellant had claimed self-defense, it might be
otherwise.
58 Nev. 65, 82 (1937) State v. Fisko
it might be otherwise. But the theory that the difference in weight was a contributing factor to
the killing in an overmastering heat of passion borders on the absurd.
There is no evidence showing that Mrs. Fisko choked appellant when she threw her arms
around his neck.
A rehearing is denied.
____________
58 Nev. 82, 82 (1937) Dignan v. State Bar
J. W. DIGNAN, Petitioner, v. THE STATE BAR OF NEVADA, A Public Corporation,
Respondent.
No. 3156
July 30, 1937. 70 P. (2d) 774.
A statute empowering the supreme court to remove or suspend an attorney for misconduct in office or for
good cause shown authorizes the court to reprove, censure, or reprimand attorneys for professional
misconduct (Comp. Laws, secs. 604).
The supreme court's authority to reprove or suspend an attorney for professional misconduct was not
curtailed by acquisition of statutory authority by the board of governors of the state bar to disbar or
discipline members by reproval or by suspension from practice (Comp. Laws, secs. 565, 604).
An objection to the complaint of a local administrative committee of the state bar that it failed to charge a
willful violation of a rule of professional conduct, made for the first time in a petition to the supreme
court for a review of the findings and recommendations of such committee and of the board of governors of
the state bar, came too late, since such objection should have been made, if at all, in the answer to the
complaint.
A recommendation in the alternative made by a local administrative committee and by the board of
governors of the state bar that member be reproved if that could lawfully be done, and otherwise that he be
suspended from practice for fifteen days, did not constitute a serious irregularity, where the supreme court
had the power either to reprove or to suspend.
An attorney who wrote a letter to a certain lady in New York referring to services which such
attorney had rendered in handling the estate of addressee's father, and outlining his
particular fitness to handle the estate of addressee's mother who had more recently
died, was subject to reproval by the supreme court for professional misconduct in
violating rule of professional conduct which prohibited a member of the state bar
from soliciting professional employment by advertisement or otherwise {Comp.
York referring to services which such attorney had rendered in handling the estate of addressee's father,
and outlining his particular fitness to handle the estate of addressee's mother who had more recently died,
was subject to reproval by the supreme court for professional misconduct in violating rule of professional
conduct which prohibited a member of the state bar from soliciting professional employment by
advertisement or otherwise (Comp. Laws, secs. 565, 604).
Petition by J. W. Dignan to review findings and recommendations of a local administrative
committee and of the Board of Governors of the State Bar of Nevada. Decision in
accordance with opinion.
J. W. Dignan, pro se.:
Petitioner respectfully submits that the recommendations of the board of governors are
void upon their face and that this proceeding should be dismissed:
FirstFor the reason that the same are not based upon or supported by any valid findings
of facts.
SecondBecause the said recommendations contain and recommend two or more
separate and conflicting penalties.
ThirdUpon the face of the record, if a suspension from practice is ordered herein as the
penalty, then such punishment will work a gross injustice upon your petitioner, for the reason
that the complaint contains no allegation upon which a suspension from practice may be
predicated.
FourthFor the reason that the said board has not the power, jurisdiction, or authority to
recommend successive, inclusive, and conflicting penalties upon the same or no legal finding
of fact.
FifthFor the reason that the statutes require that the board determine whether or not
reproval shall be public or private.
SixthFor the reason that the complaint fails to allege any cause of complaint against the
petitioner.
SeventhFor the reason that the said recommendations are in an alternative and
contingent form, so that the same are indefinite, uncertain, and unintelligible.
Chas. A. Cantwell and A. R. Schindler, for Respondent:
On this review the court will review the entire record before it and reach its own
conclusions as to what the evidence discloses; it will, in effect, make its own findings. The
transcript before the court discloses that accused, as a witness on his own behalf, admitted
having written the letter on which the charge is based. And the testimony will support a
finding that this was willfully done, if the court deems such a finding imperative.
It is true that the board has recommended mere reproval, if that may be lawfully inflicted
as a penalty, or a fifteen-day suspension from practice if the court is of the opinion that
suspension is required by law as a penalty for the violation of a rule of professional conduct.
But nowhere do we find any provision of law that prohibits the board from making such an
alternative recommendation, and none is pointed out by the accused.
OPINION
In September 1935, the local administrative committee of the state bar, district No. 5, filed
a complaint against petitioner containing three charges of professional misconduct. After
notice, petitioner filed his answer, and a hearing was had in which petitioner appeared
personally and testified. The evidence was insufficient to support the second and third
charges, but the local administrative committee found that petitioner was guilty of the first
charge, and recommended that he be disciplined by reproval, as provided in section 565 N. C.
L. 1929, and in the event that N. C. L. sec. 568, and rules I and II, of the rules of professional
conduct be deemed controlling by the board of governors, then for such professional
misconduct, the accused, J. W.
Dignan, be punished by suspension from the practice of law, for a period of fifteen days.
Said first charge preferred against petitioner was that on February 9, 1933, he wrote, or
caused to be written, a letter to a certain-named lady in New York, soliciting from her certain
legal business to be performed in the State of Nevada. This letter, admitted in evidence at the
hearing, was from Reno, and stated that petitioner had just learned of the death of addressee's
mother and extended his sympathy. We quote the following pertinent statements in this letter:
I have not had occasion to correspond with you for a long time, as there seemed to be
nothing in particular to write about. Since I last wrote you I moved from Winnemucca to
Reno, Nevada, about June 1st, 1932. * * * I will, therefore, be located permanently in Reno. I
have my family here and have a home here and expect to continue the practice of the law
here. I am in a position to handle for you any legal matters you may have in the State of
Nevada, and I feel that I am so much better qualified to do things for you than any other
attorney, since I handled your father's estate for you, and I am quite familiar with all of the
properties belonging to your mother. I assume that your mother left a will, and of course,
probate proceedings in Humboldt County will be necessary, and I could easily conduct the
proceeding for you as I can reach Winnemucca quite easily by machine in a few hours. I
know all the angles and all of the people connected with matters which you may have pending
there, and I am sure that I can do more for you than an attorney who is not familiar with the
interests which your mother has in Nevada. * * * You should know whether I handled your
father's estate matters satisfactorily for you, and if you feel that I can serve you again
satisfactorily I would very much appreciate it.
In March 1936, petitioner filed with the board of governors of the state bar his opposition
to the findings and recommendations of the local administrative committee, but did not
ask for a trial de novo or for the taking of additional evidence.
and recommendations of the local administrative committee, but did not ask for a trial de
novo or for the taking of additional evidence. In May 1936, the board of governors considered
the report of the local administrative committee, petitioner's statement in opposition thereto,
the transcript of the testimony taken before said committee, and the other papers in the
record; and on June 4, 1936, made its report to this court in which it found as a fact that, on
said 9th day of February 1933, petitioner wrote or caused to be written a letter addressed to
the lady hereinbefore mentioned, in which letter petitioner solicited from her certain legal
business to be performed in the State of Nevada. As a conclusion of law, the board of
governors found that petitioner was guilty of professional misconduct. Said report of the
board of governors entitled Findings and Recommendations, concluded with the following:
It is therefore recommended to the Supreme Court by the Board of Governors of the State
Bar of Nevada, that the accused, J. W. Dignan, be disciplined by the Supreme Court of the
State of Nevada, by reproval, as provided in N. C. L., sec. 565, and in the event that N. C. L.
sec. 568 and Rules I and II of the Rules of Professional Conduct be deemed controlling by the
said Honorable Court, then for such professional misconduct, the accused, J. W. Dignan, be
punished by suspension from the practice of law, for a period of fifteen days.
In the instant proceeding petitioner has prayed this court, under the provisions of section
577 N. C. L. 1929, for a review of said action of the board of governors and the local
administrative committee. At the hearing in this court petitioner made a motion to dismiss,
upon the ground that the court was without jurisdiction. He also moved the court to strike the
proceedings from its files.
1, 2. The chief contention of petitioner is that this court is without power or jurisdiction to
reprove an attorney for unprofessional conduct. Section 14 of an act relative to attorneys and
counselors at law, approved October 31, 1S61, page 6, c.
October 31, 1861, page 6, c. 6 (section 604 N. C. L. 1929), reads as follows: An attorney and
counselor may be removed or suspended by the supreme court, and by no other court in the
territory, for either of the following causes arising after his admission to practice:
FirstUpon his being convicted of felony or misdemeanor, involving moral turpitude, in
either of which cases the record of his conviction shall be conclusive evidence. SecondFor
wilful disobedience or violation of the order of a court requiring him to do or forbear an act
connected with or in the course of his profession. ThirdFor misconduct in office, or for
good cause shown. Section 26 of the state bar act, approved January 31, 1928, p. 13, c. 13
(section 565 N. C. L. 1929), provides, in part, that The board of governors shall have power,
after a hearing for any of the causes set forth in the laws of the State of Nevada warranting
disbarment, or suspension, to disbar members or to discipline them by reproval, public or
private, or by suspension from practice.
It is our opinion that this court has always had the power to reprove, censure, or reprimand
attorneys for professional misconduct, as well as to disbar or suspend them from practice. It is
unnecessary to cite the numerous decisions in other states on this question as this court, long
before Nevada had a state bar act, expressly recognized its power to reprimand as well as to
disbar or suspend from practice. In re Breen, 30 Nev. 164, at page 183, 93 P. 997, 17 L. R. A.
(N. S.) 572.
In the state bar act of 1928 (sections 540-590 N. C. L. 1929), no attempt was made by the
legislature to limit the powers of this court in disbarring or disciplining attorneys. On the
contrary, the last sentence of said section 565 N. C. L. 1929, expressly provides that Nothing
in this act contained shall be construed as limiting or altering the powers of the courts of this
state to disbar or discipline members of the bar as this power at present exists.
Rule I of the rules of professional conduct of the state bar of Nevada reads, in part, as
follows: "The specification of these rules of certain conduct as unprofessional is not to be
interpreted as an approval of conduct not specifically mentioned.
bar of Nevada reads, in part, as follows: The specification of these rules of certain conduct
as unprofessional is not to be interpreted as an approval of conduct not specifically
mentioned. In that connection the Canons of Ethics of the American Bar Association are
commended to the members of the state bar. Nothing in these rules is intended to limit or
supersede any provision of law relating to the duties and obligations of attorneys or the
consequences of a violation thereof.
3. Petitioner further contends that this court is without jurisdiction for the reason that the
complaint against him, filed with the local administrative committee, was and is fatally
defective in that it fails to charge that the solicitation of professional employment was willful.
Rule I of the rules of professional conduct, already referred to, provides, in part, that The
wilful breach of any of these rules shall be punishable by suspension from the practice of law
for a period not to exceed one year. Rule II reads as follows: A member of the State Bar
shall not solicit professional employment by advertisement, or otherwise. This rule shall not
apply to the publication or use of ordinary professional cards, or conventional listings in legal
directories.
The objection based upon the failure of the complaint to charge a willful violation of rule
II seems to have been made for the first time in this court. It could and should have been
made, if at all, in petitioner's answer to the complaint filed with the local administrative
committee. Such an objection comes too late when made for the first time in a petition to this
court for review.
4. The local administrative committee and the board of governors recommended that
petitioner be reproved if that could be lawfully done, otherwise that he be suspended from
practice for fifteen days. As this court has the power to reprove, it is our opinion that the
recommendation in the alternative did not constitute a serious irregularity.
5. On the merits, it is the opinion of the court that the sending of the letter hereinbefore
mentioned constituted a solicitation of professional employment in violation of rule II of
the rules of professional conduct of the state bar of Nevada.
the sending of the letter hereinbefore mentioned constituted a solicitation of professional
employment in violation of rule II of the rules of professional conduct of the state bar of
Nevada. The fact that petitioner had some time previously acted as attorney in the estate of
the father of the addressee of the letter of February 9, 1933, is not sufficient to take the case
out of said rule II. At the time the letter was written and sent, no relation of attorney and
client had existed between petitioner and any member of addressee's family for a considerable
period of time.
The court adopts the recommendation of the local administrative committee and the board
of governors that petitioner be reproved, and an order will be entered that this opinion shall
constitute such reproval.
It is further directed that orders be entered denying petitioner's motion to dismiss and his
motion to strike from the files.
____________
58 Nev. 89, 89 (1937) Abell v. District Court
GEORGE ABELL, Applicant, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Washoe, HONORABLE THOMAS F.
MORAN, the Judge Thereof, and LUVIE MOORE ABELL, Respondents.
No. 3203
September 3, 1937. 71 P. (2d) 111.
1. Certiorari.
The application in certiorari proceedings for writ is a pleading.
2. Certiorari.
A writ of certiorari would not be set aside because verified by applicant's attorney rather than by
applicant, where applicant was absent from county where attorney resided and attorney was better informed
relative to facts of matter stated in application (Comp. Laws, secs. 8620, 9232).
3. Divorce.
Proper notice of application to modify divorce decree as to custody of minor child should be given to
adverse party, whether required by statute or not (Comp. Laws, sec. 9462).
4. Divorce.
Court was without power to enter order on its own motion modifying divorce decree by awarding
exclusive custody of minor child to wife, where order was made without notice to divorced husband, since
husband was thereby denied his day in court (Comp. Laws, sec. 9462; District Court Rule 10 [Comp. Laws,
vol. 4, p. 2477]).
5. Divorce.
To justify modification of decree awarding custody of children, there must be shown change of
circumstances, or discovery of new facts which were unknown to applicant at time decree was entered, and
which could not have been ascertained with reasonable diligence (Comp. Laws, sec. 9462).
6. Divorce.
Modification of decree awarding custody of child without notice to divorced husband and without any
new evidence was improper though decree was interlocutory (Comp. Laws, sec. 9462).
7. Certiorari.
Divorced husband was not estopped from seeking writ of certiorari to set aside order modifying decree
awarding custody of child merely because he moved to vacate order and afterward consented to setting of
motion to modify decree for hearing.
8. Certiorari.
Writ of certiorari to have the order modifying decree awarding custody of minor child set aside for failure
to give divorced husband notice would not be denied on ground that divorced husband had remedy by
appeal, since appeal would not have been adequate under circumstances.
Original proceeding in certiorari by George Abell against the Second Judicial District
Court of the State of Nevada in and for Washoe County; Hon. Thomas F. Moran, the judge
thereof, and Luvie Moore Abell, to set aside an order. Order annulled and set aside.
Pat McCarran and Gordon W. Rice, for Applicant:
Even though the statute is silent as to notice, the applicant was entitled to notice before
being deprived of the custody of his child. 42 C. J. p. 480; Pratt v. Rice, 7 Nev. 123; State v.
Wildes, 37 Nev. 55, 142 P. 627; Golden v. District Court, 31 Nev. 250, 101 P. 1021; Bestel v.
Bestel (Ore.), 52 P. (2d) 525; Clark v. Clark (Wash.), 182 P. 566; Purdy v. Ernst (Kans.), 143
P.
429; Moore v. Superior Court (Cal.), 263 P. 1009; Scott v. Scott (Iowa), 156 N. W. 835;
Blachly v. Blachly, 151 N. W. 447.
Even though the order was only temporary or interlocutory, notice was nevertheless
necessary before the making and entry of the same. Gitsch v. Wight (Utah), 211 P. 705.
The order of May 14, 1937, is void for the reason that at the time the same was made and
entered no affidavit or affidavits, or any other evidence at all, was before the court, showing
that there has been a change or circumstances since the entry of the decree, warranting its
modification. 42 C. J. 493, 494; Smith v. Smith, 245 N. W. 644; Dechert v. Dechert, 46 Nev.
140, 205 P. 593; Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638; sec. 9462 N. C. L.; Cariens
v. Cariens, 50 W. Va. 113, 40 S. E. 335, 55 L. R. A. 930; 9 R. C. L. 476, 477.
The applicant being absent from the county where his attorney resides and the attorney
being better informed relative to the facts and matters states in the application, verification
thereof by the attorney was proper. 11 C. J. 154; Madison v. Piper, 53 P. 395; People v.
Coleman, 41 Hun (N. Y.), 307; Matter of Belmont, 40 Misc. 133, 81 N. Y. S. 240.
Section 8573 N. C. L. enumerates the different ways that a defendant may appear in an
action. We fail to see how the applicant could have exhausted his rights in the trial court
without taking the procedure that he did, and how he could have exercised this right in any
other way except by general appearance, in view of the foregoing section of the code. We
believe the applicant would have been estopped had he not proceeded in the trial court as he
did.
John Donovan, for Respondents:
The order of May 14 is not a final order; it is a preliminary or interlocutory order. Elsman
v. Elsman, 54 Nev. 28, 3 P. (2d) 1071.
It is well settled that certiorari will not lie to review an interlocutory order. 11 C. J. 126,
127.
Defendant appeared generally on May 24 when there was a hearing on his motion to
vacate the order of May 14. Any error in granting an order without notice is cured by a
hearing upon a motion to vacate the order. Thomas v. San Diego College, 43 P. 965.
The decree expressly reserved jurisdiction, and it has been held that in a divorce suit the
action is pending as long as the court has any control over the status of minor children until
such time as said children reach the age of majority. Gifford v. Gifford, 207 P. 1100; Ott v.
Ott, 15 P. (2d) 897; Smith v. Smith, 132 S. W. 312; Kaplun v. Kaplun, 227 S. W. 984; Tinker
v. Tinker, 290 P. 187.
No notice of the order of May 14 was required. Sections 9462 and 8921 N. C. L.; Kentz v.
Kentz, 209 S. W. 200; Morrill v. Morrill, 77 Atl. 1.
Applicant is estopped from seeking a writ of certiorari, by his moving to vacate the order
and consenting to the setting of plaintiff's motion to modify the decree. 11 C. J. 138; Hart v.
Winship, 146 N. W. 169; People v. Weld, 6 N. Y. S. 173.
Section 3232 N. C. L. does not provide that the application may be made on behalf of the
applicant by his attorney.
Applicant has a plain, speedy and adequate remedy at law or in equity.
OPINION
This is an original proceeding in certiorari.
It appears from the application and return that on the 18th day of April 1935, the said court
granted a decree of divorce to the respondent Luvie Moore Abell from the applicant. It was
ordered in the decree that applicant should have the custody of the parties' minor child {Tyler
Abell) from the 15th day of May until the 15th day of November, in each year, and that
respondent Luvie Moore Abell should have the custody of said child from the 15th day of
November until the 15th day of May, in each and every year.
child (Tyler Abell) from the 15th day of May until the 15th day of November, in each year,
and that respondent Luvie Moore Abell should have the custody of said child from the 15th
day of November until the 15th day of May, in each and every year. The court reserved
jurisdiction to enter further and different orders herein, relative to the custody of said minor
child.
It likewise appears that on the 14th day of May 1937, said Luvie Moore Abell filed in the
respondent court and noticed a motion for a modification of the decree in reference to the
custody of the child, so that in lieu thereof should be inserted a paragraph reading as follows:
It is further ordered, adjudged and decreed that the sole and exclusive care, custody and
control of the minor child of the parties, to wit, Tyler Abell, is hereby awarded to the
plaintiff.
The motion was set for hearing for the 18th day of June 1937, at 10 o'clock, a.m.
On said 14th day of May respondent, Hon. Thomas F. Moran, without notice to applicant,
and without affidavit or evidence, made and entered an order depriving applicant of the
custody of said minor child, which order reads:
Good cause appearing therefor, and pending the hearing of the motion filed on May 14,
1937, to modify the decree entered in the above entitled court on April 18, 1935, relative to
the custody and support of Tyler Abell, the minor child of the parties. It is ordered that the
sole and exclusive case, custody, and control of the minor child of the parties, to-wit, Tyler
Abell, is hereby ordered to the plaintiff until further order of the Court.
[Signed] Thomas F. Moran. District Judge.
On May 24, 1937, applicant made a motion in said court for an order vacating and setting
aside the foregoing order as unauthorized and void. The court denied applicant's motion.
Because the application for the writ of certiorari was not verified by the applicant but by
one of his attorneys, respondents contend that it was not made by the party beneficially
interested.
not verified by the applicant but by one of his attorneys, respondents contend that it was not
made by the party beneficially interested. Dismissal of the writ is urged on this account. But
the application is made by the person beneficially interested, to wit, the father of the minor
child, through one of his attorneys. Verification by the attorney is not improper under the
facts stated in the application. The statute does not require the affidavit to be made by the
party beneficially interested. In this regard it reads: The application shall be made on
affidavit by the party beneficially interested. Section 9232 N. C. L.
Section 8620 N. C. L. provides, in part: And where a pleading is verified, it shall be by
the affidavit of the party, unless he be absent from the county where the attorneys reside, or
from some cause unable to verify it, or the facts are within the knowledge of his attorney or
other person verifying the same. When the pleading is verified by the attorney, or any other
person except the party, he shall set forth in the affidavit the reasons why it is not made by the
party.
1, 2. The application in certiorari proceedings is a pleading. Madison v. Piper, 6 Idaho,
137, 53 P. 395. In the instant case it shows that the party is absent from the county where his
attorney, the affiant, resides; further, that the affiant is better informed relative to the facts and
matters stated in the application.
Applicant asserts that the respondent court was without jurisdiction to make the order of
May 14th awarding the exclusive care, custody, and control of the minor child to the
respondent Luvie Moore Abell. At the time the order was made, applicant, under the terms of
the decree, was entitled to the custody of the child, for the ensuing six months, and the order
depriving him of this right was made without notice and also without affidavit or evidence of
any kind. True, the statute empowering the court to change the custody of minor children
does not provide for notice to the adverse party. It reads: "The court, upon good cause
shown, may change the custody of such minor children, if they should be satisfied that
such change will be for the welfare of such children."
The court, upon good cause shown, may change the custody of such minor children, if they
should be satisfied that such change will be for the welfare of such children. Section 9462 N.
C. L.
The necessity, however, for giving notice in such a case finds general support in the
authorities dealing with the question under statutes of a similar character. Blachly v. Blachly,
169 Iowa, 489, 151 N. W. 447; Rogers v. Rogers, 51 Ohio St. 1, 36 N. E. 310; Shallcross v.
Shallcross, 135 Ky. 418, 122 S. W. 223; Kendall v. Kendall, 5 Kan. App. 688, 48 P. 940,
941; In re Culp, 2 Cal. App. 70, 83 P. 89; Phillips v. Phillips, 24 W. Va. 591; Gitsch v.
Wight, 61 Utah, 175, 211 P. 705; Purdy v. Ernst, 93 Kans. 157, 143 P. 429; 19 C. J. 352.
Thus, in Blachly v. Blachly, supra, under a similar provision, the court held that notice of a
change of custody was necessary, saying: It is conceded by counsel for both parties, as of
course it must be, that this section makes no provision for giving notice. But notices must be
given. * * * But it cannot be seriously contended that a decree of divorce could be modified
upon the application of one party and alimony increased or decreased, or the custody of the
children changed, without notice to the other party.
The writ of certiorari was sustained.
3. The rule is thus stated in 19 C. J. 352; that proper notice of an application to modify a
decree of divorce as to the custody of a minor child should be given to the adverse party,
whether required by statute or not.
4. The question of the right of the parents to the custody of the minor child involved the
determination of a substantive right. This was litigated and determined in the divorce
proceeding. The decree in this respect was final on the conditions then existing, but this did
not prevent a subsequent adjudication of the matter. An opportunity for the adverse party to
be heard, however, was of the essence of any such proceeding. The denial of this was a denial
to petitioner of his day in court.
If the order had been made on the motion of Luvie Moore Abell, it would have been the
duty of the court to have denied it under rule 10 of the rules of the district court (4 N. C. L. p.
2477). It will be observed that the exceptions in said rule are cases where no substantive
rights are involved.
For the reasons we have given, the court was equally prohibited from making the order on
its own motion without notice. Purdy v. Ernst, supra. The court in that case said: This
jurisdiction [the jurisdiction to award custody of minor children in a divorce case] may be
invoked by any one interested in the custody of the children, or may be exercised by the court
on its own motion. * * * Persons claiming an interest in the custody of the children, adverse
to the motion to modify the original judgment, should be notified, and they may appear and
produce evidence, and may appeal.
The section of the Civil Code of Practice of Kansas authorizing the court after a divorce is
granted to modify or change any order concerning the custody of the children does not
provide for notice.
5. Not only was there no notice to applicant of the order of May 14, it was made without
affidavit or evidence of any kind. The decree as to the custody could not be modified save
upon a proper showing. The statute itself provides that good cause must be shown. In 19 C. J.
350, 351, the rule is thus expressed: To justify a modification of the decree awarding
custody of children there must be shown a change of circumstances, or the discovery of new
facts which were unknown to the applicant at the time the decree was entered, and which
could not have been ascertained with reasonable diligence.
See authorities cited in note 38 to the text.
Again, in 9 R. C. L. pp. 476, 477: A decree fixing the custody of a child, is, however,
final on the conditions then existing, and should not be changed afterwards unless on altered
conditions since the decree, or on material facts existing at the time of the decree, but
unknown to the court, and then only for the welfare of the child."
on material facts existing at the time of the decree, but unknown to the court, and then only
for the welfare of the child.
As stated by an eminent authority: Proceedings for modification (as to custody) are in the
nature of new proceedings and require proper notice to the opposite party, and new evidence
not available in the divorce suit. 2 Schouler, Marriage and Divorce (6th ed.), sec. 1899.
6. The fact stressed by respondent that the order of May 14 was conditioned to be in effect
pending the hearing of the motion filed at that time and therefore in its nature interlocutory
does not alter the case. A change of custody after a decree may not be made at all except on
notice and new evidence. Gitsch v. Wight, et al., 61 Utah, 175, 211 P. 705, 706. The order
changing the lawful custody of the minor child in the foregoing case was a temporary order
designed to be in effect pending a hearing on a motion for a change of custody and was made
without notice or opportunity to be heard. The court said: The principle to be vindicated in
this proceeding is one of far greater importance in the administration of justice than merely to
determine which of two litigants shall have the custody of a minor child. The question goes to
the very foundation of judicial proceedings, without which the rights of litigants cannot be
judicially determined. That every person has a right to his day in court and an opportunity to
be heard before he can be deprived of a justiciable right is too elementary for discussion,
much less to invoke the citation of authority. The right of a party to the custody of a child is
just as sacred as the right of property.
The order was annulled.
7. There is no merit in respondents' claim that applicant is estopped from seeking the writ
because he moved to vacate the order and afterwards consented to the setting of the motion
to modify the decree for hearing.
City of Los Angeles v. Eighth Judicial District Court, 58 Nev. 1, 67 P. (2d) 1019.
8. The contention that the writ should not be granted because applicant had a remedy by
appeal is also without merit. It would not have been adequate under the circumstances.
An order of this court has been made annulling and setting aside said order of May 14,
1937.
____________
58 Nev. 98, 98 (1937) Withers v. Rockland Mines Co.
T.L. WITHERS, Trustee, Appellant, v. ROCKLAND MINES COMPANY, a Corporation,
Respondent.
No. 3198
September 4, 1937. 71 P. (2d) 156.
1. Trusts.
In suit by trustee to recover trust property, or reduce it to possession, in nowise affecting trustee's
relationship with cestuis que trustent, complaint showing title to trust property in trustee need not allege the
nature or terms of the trust, or names of the beneficiaries.
2. Trusts.
A complaint which alleged that plaintiff was trustee for a group of investors who had optioned and leased
certain premises to him as trustee by a lease which designated him as trustee for a corporation to be
thereafter formed was sufficient to show that plaintiff was trustee of an active express trust.
3. Trusts.
In action by trustee, complaint need not state that the trust is in writing.
4. Mines and Minerals.
In action for restitution of mining claims and improvements thereon, an allegation that defendant had and
still refused to deliver possession of such premises to plaintiff was sufficient allegation of a demand for
possession, since the ordinary signification of refused is to deny a request, or demand (Comp. Laws,
secs. 8621, 8622).
5. Mines and Minerals.
In action for restitution of mining claims and improvements thereon, complaint which alleged service of
notice of forfeiture and cancellation of lease on lessee and on defendant who occupied the premises under
an operating agreement with lessee, and which attached a copy of such notice and further alleged the
particulars in which the lease had been violated, and alleged that operating agreement under
which defendant had gained possession was void, was sufficient as against demurrer
on ground complaint contained no allegations of forfeiture or termination of original
lease {Comp.
alleged that operating agreement under which defendant had gained possession was void, was sufficient as
against demurrer on ground complaint contained no allegations of forfeiture or termination of original lease
(Comp. Laws, secs. 8621, 8622).
6. Parties.
Legal capacity to sue means that plaintiff must be free from general disability, such as infancy or
insanity, or if he sues as a representative that he shall possess the character in which he sues.
7. Parties.
Capacity to sue is the right to come into court, and differs from cause of action which is the right to
relief.
8. Parties.
The want of capacity to sue is something pertaining to the person of the party and not to the cause or
right of action, so that plaintiff may have a right of action and yet be without the capacity to sue and he
may have capacity to sue but not have a right of action.
9. Trusts.
A complaint which showed that plaintiff was trustee of an express trust, and alleged that plaintiff as
trustee had purchsed part of property involved in suit and as lessee was entitled to possession of remaining
portion thereof, stated a cause of action for recovery of possession of the property as against demurrer
(Comp. Laws, sec. 8544).
10. Trusts.
The trustee of an express trust who had purchased part of property involved in suit as trustee and was
entitled to possession of the remaining portion thereof as lessee had capacity to sue for recovery of
possession of such property from party holding under operating agreement with former lessee, without
joining with him as plaintiff, the persons for whose benefit the action was prosecuted (Comp. Laws, sec.
8544).
Appeal from First Judicial District Court, Lyon County; Clark J. Guild, Judge.
Action by T.L. Withers, Trustee, against the Rockland Mines Company. Judgment of
dismissal, and plaintiff appeals. Reversed.
Painter, Withers and Edwards, for Appellant:
The appellant in this case is a natural person, trustee of an express trust, and, as such, is
authorized to maintain by section 8544 N.C.L., which provides that a trustee of an express
trust may sue without joining with him the person or persons for whose benefit the action
is prosecuted."
with him the person or persons for whose benefit the action is prosecuted.
By the execution of the lease dated May 7, 1936, the legal title to the mining claims is
shown, and admitted by the demurrer, to vest in this appellant, and he is thus the proper party
plaintiff to bring this action to determine the right of possession, without joining others for
whose benefit it is prosecuted, and is likewise, under the rule stated, absolved from the
necessity of pleading the trust agreement. Levy v. Ryland, 32 Nev. 460, 109 P. 905; Miller v.
Walser, 42 Nev. 497, 181 P. 437; Smith v. Logan, 18 Nev. 149, 1 P. 678; Allen v. Guarantee
Oil Co. (Cal.), 168 P. 885; Leany v. Lubman, 67 Mo. App. 191; Cullen v. Atcheson County
(Mo.), 268 S. W. 93; Goff v. Boland (Ky.), 92 S. W. 575; Sansome v. Ayre and Lord Tie Co.
(Ky.), 139 S. W. 778; Craig v. Roxoline Petroleum Co. (Okla.), 39 P. (2d) 575; Perkins et al.
v. Gross (Ariz.), 224 P. 620; Newhouse v. First Nat. Bank, 13 Fed. (2d) 887.
It appearing that respondent had no right to possession or to conduct mining operations
upon the mining claims in question, and was never in a position to fulfill or comply with the
terms of the Interstate Mining & Development Company's or appellant's lease, then, under
subdivision 5, section 9135 N. C. L., no notice as last prescribed herein need be given.
Thatcher and Woodburn and E.C. Short, for Respondent:
Our contention is that if and when a trustee sues in his representative capacity, he must, in
order to state a cause of action, allege and set out the facts showing the trust relation, his
representative character, the circumstances of his appointment, and the powers with which he
is vested. Such trustee must allege that he has power and authority in his representative
capacity to commence and maintain the action. The complaint must also name the
beneficiaries of the trust, so as to enable the parties to take advantage of the judgment as
a bar to subsequent suits.
as to enable the parties to take advantage of the judgment as a bar to subsequent suits. Failing
in these allegations, the complaint does not state facts sufficient to constitute a cause of
action. 65 C.J. secs. 873, 874; Wilson v. Polk County (Mo.), 20 S. W. 469; York v. Partridge
Estate (Vt.), 132 Atl. 37; Sherman & Ellis v. Indianapolis Castings Co., 144 N. E. 17; School
Dist. No. 42 v. Peninsular Trust Co. (Okla.), 75 P. 281; State v. Missouri Pac. Ry. Co. (Mo.),
208 S. W. 37; Bradford v. Street (Md.), 35 Atl. 886; 47 C. J. secs. 33, 34; 49 C. J. secs. 144,
145.
There is no allegation in the complaint that there is an existing express trust of which the
plaintiff is trustee, and no allegation or recital that any agreement in writing was ever made or
entered into constituting the plaintiff a trustee relating to the mining claims or the lease
referred to in the complaint. 65 C. J. 218, 231, 644; secs. 1527 and 1541 N. C. L.
The complaint is also fatally defective in that it fails to plead any demand for possession
prior to the commencement of the suit. Paul v. Armstrong, 1 Nev. 82.
The complaint is further fatally defective in that it contains no allegations of forfeiture or
termination of the original lease between Chas. Vignos et al. and Interstate Mining and
Development Co.
OPINION
In November 1936 appellant, as plaintiff, filed his complaint in this action in the First
judicial district court, Lyon County. Respondent, defendant in the district court, demurred to
the complaint upon two grounds: First, that it does not state facts sufficient to constitute a
cause of action; second, that plaintiff has not legal capacity to sue. The demurrer was
sustained on both grounds.
grounds. Plaintiff elected to stand on his complaint, and his action was dismissed.
In the caption of the complaint plaintiff is designated T. L. Withers, trustee. The body of
the complaint opens with the following words: Comes now T. L. Withers, in his capacity as
trustee for certain investors in the Interstate Mining & Development Company, a corporation,
and for cause of action against the defendant alleges as follows.
In substance, the allegations of the complaint, insofar as they relate to the questions on this
appeal, are as follows:
Plaintiff is a citizen and resident of Reno, Washoe County, Nevada, and is trustee for
certain investors in the Interstate Mining & Development Company, a Nevada corporation.
In May 1933 Charles Vignos and others, owners of certain-named mining claims in
Mineral County, Nevada, and of certain specified improvements and personal property situate
on said claims, leased and optioned said mining claims and property to said Interstate Mining
& Development Company. A copy of this lease and option is attached to the complaint as
exhibit A.
In April 1935 the Interstate Mining & Development Company, as such lessee, entered into
a written operating agreement with H. M. Johnson for the purpose of mining, milling, and
developing ore on said properties during the life of the aforesaid lease. A copy of the
operating agreement is attached to the complaint as exhibit B. (Included in this agreement
were certain other mining claims owned by the Interstate Mining & Development Company,
and which were subsequently purchased at a bankruptcy sale by plaintiff as trustee, as appears
later herein.)
Johnson thereafter sold an assigned said operating agreement to defendant (respondent),
whereupon defendant entered into possession of said properties and ever since has mined and
shipped large quantities of ores therefrom.
On January 21, 1936, said Interstate Mining & Development Company was adjudicated a
bankrupt in the United States District Court, District of Nevada, and thereafter, on said
last-mentioned day, a notice of forfeiture and cancellation of the aforesaid lease was served
upon Interstate Mining & Development Company, and upon defendant. A copy of this notice
of forfeiture and cancellation is attached to the complaint as exhibit C.
On June 4, 1936, in said federal court, in the matter of the Interstate Mining &
Development Company, No. 576 in Bankruptcy, an order was made and entered by the
referee in bankruptcy adjudging such rights as the bankrupt had in said lease to have been
forfeited for failure to comply with five covenants of said lease. A copy of said order in
bankruptcy is attached to the complaint as exhibit D.
On May 7, 1936, said Charles Vignos and others leased and optioned the forfeited
properties to plaintiff as trustee. A copy of this lease is attached to the complaint as exhibit E.
By virtue of said last-mentioned lease, plaintiff is entitled to the possession of said
properties.
For failure to comply with the terms of said first-mentioned lease for the reasons set forth
in said notice of forfeiture and cancellation, and by reason of said adjudication and order in
bankruptcy, said first-mentioned lease was terminated and said operating agreement became
void, and is now without force and effect.
On August 22, 1936, plaintiff, as said trustee, purchased from the acting trustee in said
bankruptcy proceedings certain other mining claims in Lyon County, Nevada, together with
the personal property thereon, and is now the owner and entitled to possession thereof.
Ever since said adjudication of bankruptcy, and particularly from and after the 7th day of
May 1936, it became impossible for Interstate Mining & Development Company, or the
defendant, to perform any of the covenants and conditions of said first-mentioned lease or
agreement, but since said time defendant has, and does now refuse to deliver possession
of said premises to the plaintiff, and holds over and continues in possession of said
premises without the permission of the plaintiff.
covenants and conditions of said first-mentioned lease or agreement, but since said time
defendant has, and does now refuse to deliver possession of said premises to the plaintiff, and
holds over and continues in possession of said premises without the permission of the
plaintiff.
Ever since said 7th day of May 1936, defendant has, and now is, engaged in mining and
shipping large quantities of ore from said properties, for which defendant has received
approximately $17,000, which defendant refuses to pay plaintiff.
In the prayer of the complaint judgment is asked, first, for an injunction, second, for an
accounting of moneys from the sale of ores, and, third, for restitution of said mining claims,
improvements, and personal property.
In the lease and option from Charles Vignos and others to appellant, copy of which is
attached to the complaint as exhibit E, the lessee is designated as T. L. Withers, of the city of
Reno, county of Washoe, State of Nevada, as trustee for a corporation to be hereafter formed
under the laws of the State of Nevada. This lease grants to the said lessee or his assign, the
corporation to be hereafter formed, an option to purchase the leased property. Provision is
made in the lease and option for depositing an escrow deed in a Reno bank, and for the
delivery of such deed to lessee or assigns upon payment of a certain sum of money. In two
or three provisions in said lease and option (exhibit E), reference is made to The corporation
to whom this lease and option is to be assigned.
In support of its contention that the complaint does not state facts sufficient to constitute a
cause of action, respondent claims that there is no positive averment that plaintiff is a trustee;
that there is no allegation of an existing express trust of which plaintiff is trustee, and no
allegation that any agreement in writing was ever entered into constituting the plaintiff a
trustee relating to the property, the mining claims, or the lease referred to and described
in the complaint as exhibit E; that there is no allegation of any agreement in writing
defining the powers and duties of the trustee or authorizing or directing him to sue or
maintain any action or proceeding; that the plaintiff brings the action in a representative
capacity, but pleads no facts, no contract, no agreement, or declaration of trust or
assignment showing either his appointment or his authority; that said complaint does not
allege or disclose or name a cestui que trust or any beneficiaries; that if and when a
trustee sues in his representative capacity, he must, in order to state a cause of action,
allege and set out the facts showing the trust relation, his representative character, the
circumstances of his appointment, and the powers with which he is vested; that such
trustee must allege that he has the power and authority in his representative capacity to
commence and maintain the action; that the complaint must also name the beneficiaries
of the trust so as to enable the parties to take advantage of the judgment as a bar to
subsequent suits; that there are no allegations in the complaint which allege an express
trust, and none which show any power or authority of the plaintiff to commence or
maintain this action; that construing the complaint most favorably to plaintiff, the most
that can be found within it is that as trustee, plaintiff held the lease {exhibit E) and the
mining properties described in the complaint for the purpose of assigning the lease and
conveying the mining claims to a corporation to be formed under the laws of Nevadaa
dry-trust created for one purpose only; that there is no allegation in the complaint that
plaintiff, as such trustee, is authorized to sue or maintain any action concerning the
so-called trust property or for the recovery or possession thereof.
relating to the property, the mining claims, or the lease referred to and described in the
complaint as exhibit E; that there is no allegation of any agreement in writing defining the
powers and duties of the trustee or authorizing or directing him to sue or maintain any action
or proceeding; that the plaintiff brings the action in a representative capacity, but pleads no
facts, no contract, no agreement, or declaration of trust or assignment showing either his
appointment or his authority; that said complaint does not allege or disclose or name a cestui
que trust or any beneficiaries; that if and when a trustee sues in his representative capacity, he
must, in order to state a cause of action, allege and set out the facts showing the trust relation,
his representative character, the circumstances of his appointment, and the powers with which
he is vested; that such trustee must allege that he has the power and authority in his
representative capacity to commence and maintain the action; that the complaint must also
name the beneficiaries of the trust so as to enable the parties to take advantage of the
judgment as a bar to subsequent suits; that there are no allegations in the complaint which
allege an express trust, and none which show any power or authority of the plaintiff to
commence or maintain this action; that construing the complaint most favorably to plaintiff,
the most that can be found within it is that as trustee, plaintiff held the lease (exhibit E) and
the mining properties described in the complaint for the purpose of assigning the lease and
conveying the mining claims to a corporation to be formed under the laws of Nevadaa
dry-trust created for one purpose only; that there is no allegation in the complaint that
plaintiff, as such trustee, is authorized to sue or maintain any action concerning the so-called
trust property or for the recovery or possession thereof. The cases relied upon by respondent
to support the foregoing contentions are referred to in the six paragraphs following.
Wilson v. Polk County, 112 Mo. 126, 20 S. W. 469, 472, was an action by the assignee
of certain judgments.
472, was an action by the assignee of certain judgments. It was held that the facts out of
which the trust relation grew should be alleged so that the court could know its nature or
character. His allegation that he is a trustee, without stating the facts which constitute him
trustee, is but a legal conclusion, and insufficient.
York v. Partridge's Estate, 99 Vt. 329, 132 A. 37, 38, was a suit on a disallowed claim
against a decedent's estate. The court held that the complaint must show that the suit is
brought for the benefit of a designated cestui que trust. This requirement is to enable the
parties to take advantage of the judgment as a bar in subsequent suits.
Sherman & Ellis v. Indianapolis Castings Co., 195 Ind. 370, 144 N. E. 17, 20, was an
action by an attorney in fact for an employers' reciprocal insurance association for the
recovery of a money judgment. The court held that in order to be sufficient as a complaint by
the trustee of an express trust the pleading should disclose the name of the cestui que trust,
so that issue may be taken upon that allegation, if necessary, and also that the cestui que trust
may be bound by the judgment or decree.
School Dist. No. 42 v. Peninsular Trust Co., 13 Okl. 479, 75 P. 281, 283, was a suit by a
trustee to recover a money judgment, based on school warrants. We quote briefly from the
opinion in that case: The defendant surely had a right to know who it was being sued by.
Without setting out in its petition who it represented, the real party in interest was not
disclosed, and without such disclosure the petition did not state facts sufficient to constitute a
cause of action, unless, as a matter of fact, it was suing as the owner and holder of the notes. *
* * The body of the petition should have been amended so as to show by what authority and
in what manner the plaintiff acquired the right to represent the Grand Rapids Seating
Company. Without such amendment in the body of the petition, a cause of action was not
stated in favor of the plaintiff as trustee.
Wiehtuechter, to Use of American International Musical & Theatrical Union, Local No. 2
v. Miller, 276 Mo. 322, 208 S. W. 39, 41, was a suit by certain members of one labor union,
as representatives of a class against another labor union for publishing libels derogatory to
plaintiff's association. The court said: There is no allegation showing a trust of which
plaintiffs are trustees. * * * The averment of authority to sue in a representative capacity does
not state in what sort of representative capacity they may act. It is bad on demurrer because it
fails to allege the facts which would confer such authority.
In Bradford v. Street, 84 Md. 273, 35 A. 886, one purporting to be a trustee of another
person brought suit to recover from defendants for money payable by their intestate in his
lifetime to plaintiff's beneficiary. The court of appeals held that the complaint should have
alleged how plaintiff was appointed trustee and how, as such, he became owner of the claim
sued on.
Support for respondent's position may also be found in the following cases: Lasar v.
Johnson, 125 Cal. 549, 58 P. 161; Marion Bond Co. v. Mexican Coffee & Rubber Co., 160
Ind. 558, 65 N. E. 748; Guyer v. Union Trust Co., 55 Ind. App. 472, 104 N. E. 82; Riley v.
Fithian, 64 N. J. Eq. 259, 54 A. 143.
1. It will be noted that in none of the six cases cited by respondent was title to the trust
property alleged to be in the plaintiff. It is the contention of appellant that where the
complaint shows title to the trust property in the plaintiff, and the suit is brought by the
trustee to recover the trust property or to reduce it to possession, and in nowise affects his
relations with the cestui que trustent, it is not necessary that the complaint contain allegations
showing the nature of terms of the trust or the names of the beneficiaries. In our opinion the
following cases show that the weight of authority sustains appellant's position. Koch v. Story,
47 Colo. 335; 107 P. 1093, 1095; Anson v. Townsen, 73 Cal. 415, 15 P. 49; Smith v. City of
Portland (C.C.) 30 F. 734; American Surety Co. v.
Surety Co. v. Marsh, 146 Okl. 261, 293 P. 1041; Sansom v. Ayer & Lord Tie Co., 144 Ky.
555, 139 S. W. 778.
Koch v. Story, supra, was a suit by a trustee to restrain defendant from threatened harmful
interference with certain reservoirs and water rights claimed by plaintiff, and to recover
damages for the injuries which past interference had already inflicted. The complaint alleged
that plaintiff was the owner, holding title as trustee of an express trust, possessed, and entitled
to possession, of certain reservoirs and water rights; that defendant wrongfully trespassed
upon the reservoirs, cut their banks, placed pipes therein, and thus withdrew the impounded
waters to plaintiff's damage, and that defendant threatened to continue such trespasses and
wrongful acts and would do so unless restrained by the court. The district court overruled
defendant's general demurrer to the complaint, its ruling being assigned as error on appeal.
The supreme court in sustaining the trial court said: If we understand defendant's argument,
it is, since the complaint alleges that plaintiff's title to the premises in controversy is held by
him as trustee of an express trust, that pleading is fatally defective because it does not set out
how and by whom the trust was created, or give the names of the beneficiaries. Authorities
from other jurisdictions are cited to the point that where the trustee of an express trust sues,
particularly where he is seeking to enforce a trust or change, in some way, its terms, he must
allege explicitly the nature of his trust and disclose the name of his beneficiaries. We do not
think these authorities sustain defendant's objections to this complaint. Plaintiff alleges that
he has the title to this property. He is suing to protect it from injury and to preserve it for the
benefit of its equitable owners. Our Code (Mills' Ann. Code, sec. 3) and our decisions require
that an action shall be brought in the name of the real party in interest.' We have determined
that one who holds the legal title' is the real party in interest.' Bassett v. Inman, 7 Colo.
270-273, 3 P. 383; Gomer v. Stockdale, 5 Colo.
Stockdale, 5 Colo. App. 489, 492, 39 P. 355; Pomeroy on Cole Remedies, sec. 62 et seq.
Applying that doctrine, we find here that plaintiff alleges in his complaint that he holds the
legal title to this property. The additional allegation that he holds as trustee of an express trust
may be regarded as surplusage. But if not, where the trustee of an express trust also holds the
legal title, he may maintain an action without disclosing the name of the beneficiary, or the
nature of the trust. The objection is purely technical, and when, as in this case, the
beneficiaries would be concluded by the judgment, which would be a bar to a subsequent suit
on the same cause of action by them, the objection interposed ought not to be favorably
considered.
It is interesting to note that in Wiehtuechter, to Use of American International Musical &
Theatrical Union, Local No. 2, v. Miller, supra, cited by respondent, one of the chief reasons
for the court's holding was that, It is not alleged that title to any property right is vested in
the plaintiffs as trustees. It would thus seem that that case tends to support appellant's
position.
2. In the instant case, plaintiff is alleged to be the owner of a portion of the trust property,
and to be entitled to the immediate possession of the balance thereof as lessee. Many active
duties are imposed upon plaintiff by the numerous covenants of the lease.
We think the complaint contains sufficient allegations to show that plaintiff is trustee of an
express trust. Cullen v. Atchison County (Mo. Sup.), 268 S.W. 93; Sansom v. Ayer & Lord
Tie Co., 144 Ky. App. 555, 139 S. W. 778; Goff Boland (Ky.), 92 S. W. 575; Lewis v. St.
Paul, M. & M. Ry. Co., 5 S. D. 148, 58 N. W. 580.
We are also of the opinion that the allegations of the complaint are sufficient to show an
active trust, thus distinguishing it from the complaint in Roman v. Long Distance Tel. & Tel.
Co., 147 Ala. 389, 41 So. 292.
3. The complaint need not state that the trust is in writing. 47 C. J. 40; 1 Bogert, Trusts and
Trustees, sec. 71.
4. Respondent contends that the complaint is fatally defective in that it fails to plead any
demand for possession prior to the commencement of the suit. Appellant, in his closing brief,
states that this objection was not argued in the court below. This statement was not denied by
respondent at the oral argument, or otherwise. Regardless of that, however, and conceding,
arguendo, that demand for possession was necessary prior to bringing the action, we are of
the opinion that the complaint sufficiently alleges demand for possession. It alleges that
since said time defendant has, and does now refuse to deliver possession of said premises to
the plaintiff. * * * This is tantamount to an allegation of demand and refusal, as the ordinary
signification of the word refuse is to deny a request or demand. Burns v. Fox, 113 Ind. 205,
14 N. E. 541; Pomeroy's Code Remedies (5th ed.), p. 783; 49 C. J. 147, sec. 162, n. 5.
5. Nor do we consider as well taken respondent's contention that the complaint is fatally
defective in that it contains no allegations of forfeiture or termination of the original lease.
Besides alleging service of notice of forfeiture and cancellation of said lease upon defendant,
as well as upon Interstate Mining & Development Company, and incorporating in the
complaint a copy of said notice setting forth five particulars in which it was claimed that the
lease had been violated, the complaint further alleges that for failure to comply with the
terms of the said lease for the reason set forth in the Notice of Forfeiture and Cancellation,
copy of which is attached hereto and marked Exhibit C,' and to which reference is hereby
made * * * said lease was terminated and said operating agreement hereinabove referred to
thereby became void and is now without force and effect. A copy of the operating agreement
between Interstate Mining & Development Company and H. M. Johnson is incorporated in
the complaint, and shows that all rights of said Johnson and his assignee, defendant,
depended entirely upon the continuation of the original lease.
It is not our desire to encourage defective or imperfect pleadings; but we are not permitted
to overlook the first two sections of chapter 16 of our civil practice act (sections 8621, 8622
N. C. L. 1929), which provide that, In the construction of a pleading for the purpose of
determining its effect, its allegations shall be liberally construed, with a view to substantial
justice between the parties, and that, The court shall, in every stage of an action, disregard
any error or defect in the pleadings or proceedings, which shall not affect the substantial
rights of the parties.
6-8. In support of its second ground of demurrer, that plaintiff has not legal capacity to
sue, respondent argues that while a trustee of an express trust may under our statute (section
8544 N. C. L. 1929) sue without joining with him the person or persons for whose benefit the
action is prosecuted, this does not do away with the necessity of naming the party or parties
for whose benefit the suit is commenced. The defendant, contends respondent, is entitled to
know in whose interest he is being sued, to the end that in any subsequent action he may
plead the judgment in bar, and to the further end that he may assert against the third party or
the beneficiary any defense, set-off, or counterclaim, that he may have. Respondent maintains
that the provision of the code for the maintenance of the action in the name of the real party
in interest is mandatory, and where the statute provides an exception to the rule, the plaintiff
without interest must bring himself within the terms of the exception. It is incumbent upon
the plaintiff, says respondent, to show that he is concerned with the cause of action averred
and a party who has suffered injury by reason of the action of the defendant. It is not enough
to allege a cause of action in favor of someone when a plaintiff sues in a representative
capacity; the plaintiff in such circumstance must allege the facts showing the cause of action
accruing to him in the capacity in which he sues, and must allege and show his authority.
The phrase legal capacity to sue' as used in a code provision, means that plaintiff must
be free from general disability, such an infancy or insanity, or, if he sues as a
representative, that he shall possess the character in which he sues.
provision, means that plaintiff must be free from general disability, such an infancy or
insanity, or, if he sues as a representative, that he shall possess the character in which he sues.
* * * Incapacity to sue exists where there is some legal disability, such an infancy, or lunacy,
or a want of title in plaintiff in the character in which he sues. Want of capacity to sue has
reference to or involves only a general legal disability, such as infancy, idiocy, coverture, or
want of authority. * * * There is a decided difference between capacity to sue and the right to
maintain an action, and there is a clear distinction between incapacity to sue' and
insufficiency of facts to sue upon.' The capacity to sue is the right to come into court, and
differs from the cause of action, which is the right to relief in court. The want of capacity to
sue is something pertaining to the person of the partya personal incapacityand not to the
cause or right of action. A plaintiff having a right of action may yet be without a capacity to
sue; a plaintiff with capacity to sue may have no right of action. 47 C. J. 20, 21. And see
Clark, Code Pleading, sec. 50.
9, 10. By the express provisions of our civil practice act, a trustee of an express trust may
maintain an action, though not the or a real party in interest. Section 8544 N.C.L. 1929. As
has already been said, there are sufficient facts set forth in the complaint in the case at bar to
show that plaintiff is a trustee of an express trust. As trustee, he purchased part of the
property involved in this suit, and, as lessee, he is entitled to the possession of the remaining
portion thereof. The suit is not merely one for an accounting and an injunction, but is brought
for the further purpose of recovering the trust property. Plaintiff, under the allegations of his
complaint, is entitled to recover the trust property and its possession. We think the cases
already cited support this view, as well as the following authorities: 3 Bogert, Trusts and
Trustees, pp. 1875 to 1879, secs. 593, 594; 2 Restatement of the Law, Trusts, sec. 280; 26 R.
C. L.
26 R. C. L. 1340, 1341; 49 C. J. 140, sec. 145; 4 Bogert, Trusts and Trustees, sec. 870; 1
Restatement of the Law, Trusts, sec. 176.
The case of the Proprietors of the Mexican Mill v. Yellow Jack Silver Mining Company, 4
Nev. 40, 97 Am. Dec. 510, relied upon by respondent, presents a different situation from that
in the instant case. In the Mexican Mill case the plaintiffs were designated The Proprietors
of the Mexican Mill Co. The appeal was from a district court order refusing an injunction.
This court, through Justice Johnson, said: We know of no authority, statutory or otherwise,
which permits an action involving the subject matter of the present one to be prosecuted
under a copartnership associate name. * * * In this instance no person, natural or artificial, is
named as plaintiff. In the case before us plaintiff is a natural person. The Mexican Mill case
has no application here.
The court, being of the opinion that plaintiff has legal capacity to sue, and that the
complaint alleges facts sufficient to constitute a cause of action, the judgment appealed from
is reversed.
____________
58 Nev. 114, 114 (1937) State Bar v. McCluskey
STATE BAR OF NEVADA, a Public Corporation, Complainant, v. W.C. McCLUSKEY,
Respondent.
No. 3171
October 2, 1937. 71 P.(2d) 1046.
In disciplinary proceedings charging attorney with procuring a decree of divorce without first obtaining a
court order for service of summons on defendant outside of state where decree was subsequently vacated
and a summons served on December 26 after proper procedure had been followed, that an affidavit was
made showing service on September 26, which was not attached to any summons appearing of record, was
immaterial, where affidavit could not affect decree rendered and specification averred that summons issued
when decree was set aside was served on December 26.
In disciplinary proceedings charging attorney with procuring a decree of divorce without first obtaining a
court order for service of summons on defendant outside of state, where decree was vacated, proper
procedure was thereafter followed and a decree obtained, testimony of resident witness as to time she had
known plaintiff in divorce suit given in such proceedings was immaterial in absence of showing of
significance of such testimony and in view of trial court being satisfied as to its jurisdiction.
The supreme court would not search for evidence in support of points made in brief which was not
pointed out therein.
4. Judgment.
Every presumption is in favor of a judgment and decree of a court of record.
An attorney only recently admitted to the Nevada bar who procured decrees of divorce upon personal
service of summons upon respective defendants outside of state without first filing an affidavit for and
obtaining an order of court for service of summons was not guilty of such misconduct as would merit
disbarment for one year, where it did not appear that attorney intended misleading any of parties or the
court.
An attorney, by applying to city council for permission to conduct a taxicab business with a person who
had been convicted of violating statute making it unlawful for others than lawyers to solicit legal business
was not guilty of conduct meriting disbarment (Comp. Laws, sec. 621).
The power to disbar must be exercised with utmost care and is not an arbitrary or despotic one.
Appeal from Board of Governors of State Bar.
Disciplinary proceedings by the State Bar of Nevada, a public corporation, against W.C.
McCluskey, an attorney at law. The Board of Governors of the State Bar found that the
attorney was guilty of professional misconduct with respect to certain of the charges against
him and recommended that he be disbarred from the practice of law for the period of one
year, and he appeals. Findings and conclusions of the Board of Governors set aside and
proceedings dismissed.
W.H. Edwards, for Complainant:
When a newcomer to this state, admitted to practice before its courts of justice, with little
or no acquaintanceship or connections, acquires seventy or eighty clients in the brief space of
six months, and 132 cases from April 1, 1935, to July 31, 1936, suspicion is justly aroused as
to the methods employed, and when the records disclose them to be in violation of the code
of ethics, and the presentation of at least three such cases to be contrary to the statutes made
and provided, resulting in the granting of invalid decrees of divorce and consequent injury to
those seeking relief in our courts; when an attorney's ignorance of the law is so palpable, it
becomes the sworn duty of the administrative committee and the board of governors of the
state bar to take action to protect the public against such demonstrated inefficiency and
unfitness. 6 C. J. pp. 583, 682, 698; Fairfield County Bar v. Taylor, 22 Atl. 441; In re Dobbs,
73 Atl. 303; In re Hegarty's Estate, 47 Nev. 369, 222 P. 793.
Complainant, therefore, earnestly contends that the findings and recommendations of the
board of governors should be sustained and upheld.
A.J. Maestretti, for Respondent, did not file a brief, but relied upon his oral argument.
OPINION
Disciplinary proceedings were instituted against W. C. McCluskey, a member of the state
bar, by the filing of a complaint before the local administrative committee of the state bar of
Nevada, in and for district No. 5. Respondent was found guilty by the committee, and asked
and was given a trial de novo before the board of governors of the state bar. The board of
governors found that the charges contained in specifications 1, 2, 3, and 6 were true, and that
respondent was guilty of professional misconduct, and recommended that respondent be
disbarred from the practice of law in the State of Nevada for the period of one year, without
prejudice to his right to apply for admission to practice law by taking and passing the
examination given by the board of bar examiners. He was not found guilty of the charges in
specifications 4 and 5.
That a complete understanding of the matter may be had, we quote from the complaint,
after omitting certain formal portions and other immaterial matter, as follows:
That said accused has pursued a course of conduct in his capacity of attorney at law
evidencing his unfitness for the confidence and trust which should attend the relation of
attorney and client, and the practice of the law before the courts of the State of Nevada, which
complainants allege constitutes misconduct in office, as follows:
Specification No. 1.
In that certain action for divorce entitled * * *, on the 23rd day of May, 1935, wherein
said W. C.
McCluskey was attorney of record for the plaintiff, said accused caused a summons to be
issued and to be thereafter served upon the defendant in the City of Spokane, State of
Washington, on the 25th day of June, 1935; that the said accused failed and neglected prior to
the issuance and service of said summons, to procure and file plaintiff's affidavit for such
substituted service and failed and neglected to procure an order of said Court authorizing the
service of such summons outside of the State of Nevada, as provided by section 8582, NCL
1929, as amended by chapter 134, Session Laws 1933, and section 8583, NCL 1929, as
amended by chapter 95, Session Laws 1931. [section 2].
That thereafter and on the 26th day of July, 1935, said case was tried and a decree
dissolving the matrimonial statute of the parties to said action was made and filed by said
Court without said Court being informed by accused of such non-compliance with the
aforesaid statutes in such cases made and provided. That said decree was thereafter vacated
by the Court by a Minute Order entered on the 16th day of December, 1935; that on said 16th
day of December, 1935, an affidavit for publication of summons was sworn to by said
respondent and an order for publication issued and filed, and a second summons was served
on the defendant on the 26th day of December, 1935, and returned and filed January 1st,
1935. The affidavit for publication contains the following language: That this affiant knows
the defendant's address since the commencement of the above entitled action to be, and now
is * * *'. An affidavit showing service to have been made upon the defendant on said 26th day
of September, 1935, at the above address appears in the file, but said affidavit of service is
not attached to any summons and does not show which of the two processes was served upon
defendant.
On information and belief complainants aver that defendant's default was made and
entered and a decree granted on the 31st day of January, 1936. On said last mentioned
hearing the Court entered an order permitting the re-introduction of all proceedings and
testimony given upon the previous hearing, but it does not appear from the record that
said transcript was offered or admitted in evidence.
mentioned hearing the Court entered an order permitting the re-introduction of all
proceedings and testimony given upon the previous hearing, but it does not appear from the
record that said transcript was offered or admitted in evidence.
Mrs. Earl Smith, the resident witness, testified at the hearing held on said 31st day of
January, 1936, that she resided at 130 Stevenson Street, Reno, Nevada, and replying to
respondent's question, stated that she had known the plaintiff for at least six weeks prior to
May 22, 1935, but when asked by the presiding Judge when she first met the plaintiff, replied:
I met her in April, about the 25th.'
The transcript of the record and the clerk's minutes recite that the plaintiff was not present
in court at said hearing, but the decree of January 31st, 1936, states that the plaintiff appeared
in person.
In that certain action for divorce entitled * * *, on the 12th day of September, 1935,
wherein said W. C. McCluskey was attorney of record for the plaintiff, said accused caused a
summons to be issued and to be thereafter served upon the defendant at * * * on the 16th day
of September, 1935; that the said accused failed and neglected, prior to the issuance and
service of summons, to procure and file plaintiff's affidavit for such substituted service and
failed and neglected to procure and order of said Court authorizing the service of such
summons outside of the State of Nevada, as provided by section 8582, NCL 1929, as
amended by chapter 134, Session Laws 1933, and section 8583, NCL 1929, as amended by
chapter 95, Session Laws 1931.
That thereafter, and on the 17th day of October, 1935, said case was tried and a decree
dissolving the matrimonial status of the parties to said action was made and filed by said
Court without said Court being informed by accused of such non-compliance with the
aforesaid statutes in such cases made and provided.
That said decree was thereafter vacated by the Court by a Minute Order made on the 19th
day of December, 1935. No personal service of said summons was made on the defendant,
but service was attempted by publication in the Virginia City News, Virginia City, Nevada,
and the affidavit for the order was made by respondent, and states: That this affiant knows
defendant's address since the commencement of the above entitled action to be and now is * *
*.' The default of the defendant was entered and the second decree granted May 1st, 1936,
and on the last mentioned hearing of this cause, the Court entered an order permitting the
re-introduction of all the proceedings and testimony given upon the previous hearing, but it
does not appear from the record that said transcript was offered or admitted in evidence.
In that certain action for divorce, entitled * * *, on the 19th day of August, 1935, wherein
said W.C. McCluskey was attorney of record for the plaintiff, said accused caused a summons
to be issued and to be thereafter served upon the defendant at * * *, on the 4th day of
September, 1935; that the said accused failed and neglected, prior to the issuance and service
of summons, to procure and file plaintiff's affidavit for such substituted service and failed and
neglected to procure an order of said Court authorizing the service of such summons outside
of the State of Nevada, as provided by section 8582, NCL 1929 as amended by chapter 134,
Session Laws 1933, and section 8583, NCL 1929, as amended by chapter 95, Session Laws
1931.
That thereafter and on the 9th day of October 1935, said case was tried and a decree
dissolving the matrimonial status of the parties to said action was made and filed by said
Court without said Court being informed by accused of said non-compliance with the
aforesaid statutes in such cases made and provided.
That said decree was thereafter vacated by the Court by a Minute Order as appears from
the Minutes thereof, dated the 25th day of November, 1935, and instructing the clerk to
enter its order nunc pro tunc that the affidavit for publication and the order for
publication in this action be filed as of August 15th, 1935.
by a Minute Order as appears from the Minutes thereof, dated the 25th day of November,
1935, and instructing the clerk to enter its order nunc pro tunc that the affidavit for
publication and the order for publication in this action be filed as of August 15th, 1935.
Consequently, neither affidavit for publication nor the order for publication were actually
filed in this action until November 25th, 1935, but the clerk's filing marks show that both the
affidavit and order were filed on the same day, to wit, August 15th, 1935, a period of four
days prior to the institution of this action. * * *
Specification No. 6
That on the 10th and 11th days of October, 1935, Clifford Bahem was tried in the
Justice's Court in and for Reno Township, County of Washoe, State of Nevada, on a charge of
violation of section 621, NCL 1929, making it unlawful for others than lawyers to solicit
legal business,' and on the __ day of October, 1935, a jury duly and regularly impaneled to try
said issues, returned a verdict finding said Clifford Bahem guilty as charged; that during the
course of said proceedings said Clifford Bahem was represented by said accused, W. C.
McCluskey.
That thereafter, on the 9th day of March, 1936, said Clifford Bahem and said W. C.
McCluskey made and filed a written application to the City Council for permission to conduct
a taxicab business within said City of Reno; that on the 25th day of March, 1936, said City
Council refused to grant, and denied, said application.
The respondent was admitted to the bar in Missouri in 1927 and practiced in Kansas City
for several years; he was admitted in Nevada upon his Missouri license, October 1934, and
commenced to practice in 1935. The respondent having been acquitted on specifications 4
and 5, we will make no allusion to them, nor to the evidence introduced in support of them,
but confine ourselves strictly to the evidence in support of the specifications upon which he
was found guilty.
The charges in each of the first three specifications are identical as to one feature, that is,
that respondent procured a decree of divorce upon personal service of summons upon the
respective defendants, outside of the state, without first filing an affidavit for and obtaining
an order of the court for service of summons. Nowhere is it intimated that either of the
defendants were misled or deceived or that respondent willfully sought to mislead any of the
defendants or the court. All that is contended is that respondent was misinformed as to the
requirements of the law. Respondent testified that in suits which he had instituted where the
residence of the defendant was unknown, he had made it a rule to file an affidavit and procure
an order for the publication of summons, but that it had been his impression that, where the
address of the defendant was known and where a summons could be personally served, it was
not necessary to get an order of court.
1. Referring to the case mentioned in specification No. 1, in which the decree was based
upon the character of service above stated, it appears from the specification that the decree
was vacated on December 16, 1935, and that on the same day an affidavit for publication of
summons, stating the address of the defendant, was filed, and an order for publication was
issued and filed, and that summons was issued on said date and served on December 26,
1935, and returned and filed January 1, 1936, and that defendant's default and a decree were
entered January 31, 1936. While some point is sought to be made of the fact that an affidavit
showing service on the defendant on September 26 was made, but that it is not attached to
any summons appearing of record, we are unable to see its significance or force, in view of
the fact that it in no event could affect the decree of January 31, 1936, and in view of the
further fact that the specification avers that the summons of December 16, 1935, was served
on December 26, 1935, and returned and filed January 1, 1936.
2. There is an allusion to the testimony of Mrs. Smith. The significance of her testimony in
this connection is not pointed out. Evidently the trial court was satisfied from all the evidence
as to its jurisdiction, and that plaintiff was entitled to a decree.
It is said that at the last-mentioned hearing (January 31, 1936) the court entered an order
permitting the introduction of all the proceedings and testimony given upon the previous
hearing, but that it does not appear from the record that said transcript was offered or
admitted in evidence.
It is said in the brief filed in behalf of the complainant: It is further charged that the
record of the proceedings shows that the plaintiff was not present in Court at the second
hearing, but the decree states that the plaintiff appeared in person. Plaintiff's testimony
relating to residence was not corroborated as provided by chapter 169, Session Laws 1931,
page 277.
3, 4. The brief does not point out where we can find in the record the evidence on these or
any other points, as is customary, and we do not feel called upon to search it out. As to these
and other points, suffice it to say that every presumption is in favor of a judgment and decree
of a court of record.
What we have said as to specification No. 1 applies to specification No. 2, and no special
allusion need be made to it.
In the case referred to in specification No. 3, the original decree was vacated and the court
entered what purports to be a nunc pro tunc order on November 25, 1935, for the filing of an
affidavit for the publication of summons. Putting aside the force and effect of this order, the
respondent testified that this order was not made on his application but by the court on its
own motion. His testimony is not denied or questioned, but, as strange as it may seem,
respondent was examined as to his knowledge of the conditions under which such an order
can be properly made.
5. It clearly appears that respondent was careless in the three cases mentioned, in that,
being recently admitted to the bar, he did not carefully read over our provisions of the law
outlining the method of obtaining service of summons upon a nonresident defendant.
in the three cases mentioned, in that, being recently admitted to the bar, he did not carefully
read over our provisions of the law outlining the method of obtaining service of summons
upon a nonresident defendant. As we have pointed out, however, it does not appear that he
intended misleading any of the parties or the court.
If we were to disbar every lawyer who displays such neglect, some of the prominent
lawyers of the state would be subject to the same penalty for the failure to follow the
requirements as to perfecting appeals to this court. Why should we discriminate?
Our attention is not directed to any authority justifying the disbarment of respondent upon
the specifications referred to. The only case called to our attention as supporting the
contention is In re Hobbs, 75 N. H. 285, 73 A. 303, 305, and it is not in point. That was a case
in which Hobbs, as justice of the peace, was guilty of willful misconduct, in criminal
proceedings, and of grossly neglecting to turn over or account for fines collected. But even in
that case the court merely suspended the respondent, as appears from the order, which reads:
The order is that he be reprimanded for willful disregard of proper criminal procedure and
for grossly neglecting to turn over or account for fines imposed upon offenders, and that he be
suspended from practice for six months.
It is our opinion that the proceedings should be dismissed as to specifications 1, 2, and 3.
6, 7. As to specification No. 6, we are totally at a loss to understand upon what legal
ground the respondent can be disciplined. If Bahem had been convicted of a most heinous
offense, had paid the penalty, and was eligible to enter into business, we do not conceive of
any legal or moral reason why he could not seek a license to do a legitimate business. Nor do
we know why it was improper for respondent and Bahem to seek to obtain a license to do a
legitimate business, and none is suggested. We have known of men who have served a term
in state's prison to thereafter enter into legitimate business pursuits and become highly
respected.
business pursuits and become highly respected. This specification is entirely without merit.
As was observed in Re Lemisch, 321 Pa. 110, 184 A. 72, 74: The power to disbar must
be exercised with the utmost care' (Maginnis' Case, 269 Pa. 186, 112 A. 555) and is not an
arbitrary or despotic one.
It is ordered that the findings and conclusions herein reviewed be set aside, and that the
proceedings be, and they are hereby, dismissed.
November 15, 1937.
Rehearing will not be granted to consider a viewpoint not urged on original hearing.
For former opinion, see 58 Nev. 114, 71 P. (2d) 1046.
H. W. Edwards, for Complainant, W. M. Gardiner and Harlan L. Heward, of Counsel.
A. J. Maestretti, for Respondent.
Rehearing denied.
OPINION
A petition for a rehearing has been filed in this matter, in which viewpoints are urged that
were not presented or suggested on the original presentation.
We have often held that we would not grant a rehearing to consider a viewpoint not urged
on the original hearing, hence we will not consider the merits of the petition. Johnson v.
Local Union No. 971, 54 Nev. at page 340, 18 P. (2d) 448.
The petition for a rehearing is denied.
____________
58 Nev. 125, 125 (1937) State v. Beyers
THE STATE OF NEVADA, Respondent, v. LOUISE BEYERS, Appellant.
No. 3184
October 2, 1937. 71 P. (2d) 1044.
1. Criminal Law.
In prosecution for involuntary manslaughter by automobile, testimony by magistrate who conducted
preliminary examination that accused said she was drunk when crime was committed was properly
admitted in absence of showing that statement was not made in an extrajudicial proceeding (Comp. Laws,
sec. 10775, as amended by Laws 1933, c. 101, secs. 10776-10781).
2. Criminal Law.
In prosecution for involuntary manslaughter by automobile, testimony on cross-examination before
magistrate who conducted preliminary hearing of the circumstances under which defendant made a
statement to the effect that she was pretty drunk and which was given in evidence against her held not
shown to have been erroneously admitted where, at time objection was made, impropriety of the statement
did not appear and no motion was subsequently made to strike the statement (Comp. Laws, sec. 10775, as
amended by Laws 1933, c. 101; secs. 10776-10781).
3. Criminal Law.
Appeals to supreme court in criminal cases can be taken on questions of law only (Comp. Laws, sec.
11085; Const. art. 6, sec. 4).
4. Automobiles.
Evidence held to sustain conviction for involuntary manslaughter of defendant whose automobile struck
deceased.
5. Criminal Law.
In prosecution for involuntary manslaughter by automobile, instruction that driving a motor vehicle on
the highway by one intoxicated or under the influence of intoxicants is criminal negligence in and of itself
held not reversible error, in view of curative instruction embodying all the essential elements for the jury
to have found to exist as a prerequisite to finding the defendant guilty (Comp. Laws, sec. 4352).
6. Criminal Law.
All instructions must be read together in determining whether one instruction constitutes reversible error.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Louise Beyers was convicted of involuntary manslaughter, and she appeals. Affirmed.
J. M. Frame, Geo. E. McKernon and Harry G. Pray, for Appellant:
Counsel for appellant earnestly contend that the evidence in this case is not sufficient to
support a conviction, and that upon the whole case the evidence is just as consistent with the
theory of unavoidable accident as it is with the theory that the death of the deceased was the
result of any of the negligent acts alleged in the information.
Our statutes provide for the procedure to be had at preliminary examinations; that the
proceedings shall be reduced to writing, and that all statements and depositions of witnesses
shall be read over to them, corrections made, and the same signed and filed with the
examining magistrate. It thus becomes a part of the record of the proceedings, and is the best
evidence. Sections 10775 to 10780 N. C. L. Therefore, the testimony of the justice of the
peace as to the alleged statement of appellant that she must have been pretty drunk was
incompetent, irrelevant, immaterial, and not the best evidence, and its admission was
erroneous and prejudicial error. State v. Clarke, 48 Nev. 134, 228 P. 582.
The court's instruction to the jury that driving a motor vehicle upon a public highway by
one who is intoxicated or under the influence of intoxicating liquor is criminal negligence in
and of itself, that is, as a matter of law, is incorrect as a statement of law applicable to the
instant case, and had the tendency to mislead and confuse the jury. Our motor vehicle statute
does not make intoxication alone, or driving while intoxicated, a felony. The offense is only
elevated, by section 4351 N. C. L., from what would otherwise be a misdemeanor, to a felony
in cases where, by reason of intoxication, the defendant omits some duty or commits some act
which results in the injury or death of some person. The instruction takes from the jury the
right to determine whether the death of the deceased is shown to have been the proximate
result of a wrongful act, including intoxication, or whether it may have been the result of
an unavoidable accident.
the proximate result of a wrongful act, including intoxication, or whether it may have been
the result of an unavoidable accident. State v. Ferguson, 9 Nev. 106.
It will be observed that each of the court's instructions on involuntary manslaughter, reckless
driving, and intoxication do not inform the jury that intoxication or reckless driving must
have been the proximate cause of the injury or death of the deceased, which is an essential
element of the crime of involuntary manslaughter, and that the burden was upon the state to
prove the same by competent evidence beyond a reasonable doubt.
Attorneys-General; E. S. Brown, District Attorney; and Nash P. Morgan, Assistant District
There is ample evidence in the record to support the verdict.
The state can only use the testimony given at a preliminary examination in certain cases,
such as a witness being dead, out of the state, etc., as provided by section 10775 N. C. L. The
transcript, of course, could be used for the purpose of impeaching appellant if she took the
stand and testified differently, but she did not testify. And while it might be true that the state
could use the transcript to prove a statement made by appellant, after laying the proper
foundation, we respectfully submit that such transcript is not the best evidence, and that any
statement against interest, or any admission made by appellant at the preliminary examination
can be proved by anyone present at the hearing who heard the statement. Not being a
confession, it was not necessary for the state to first show that the statement was voluntarily
made. 8 Cal. Jur. 139; People v. Shortridge (Cal.), 177 P. 458; 16 C. J. 759, sec. 1558.
Under section 10775 N. C. L., it is not compulsory that the proceedings of preliminary
examinations be taken down in writing, but it is left to the discretion of the magistrate and
the district attorney.
taken down in writing, but it is left to the discretion of the magistrate and the district attorney.
The court's instruction that driving a motor vehicle upon a public highway by one who is
intoxicated or under the influence of intoxicating liquor is criminal negligence in and of
itself is the law, and was so stated to be in the recent case of Menefee v. State (Tex.), 87 S.
W. (2d) 480.
It was not necessary to incorporate in the instructions objected to by appellant a statement
that intoxication, excessive speed, or reckless driving must have been the proximate cause of
death, for the reason that the court gave such an instruction. All instructions must be read
together and in connection with section 11266 N. C. L. State v. Willberg, 45 Nev. 183, 200 P.
475; State v. Jon, 46 Nev. 418, 211 P. 676; People v. Kelly (Cal.), 234 P. 110.
OPINION
By the Court, Coleman, C. J.:
Louise Beyers, an Indian girl, was convicted of involuntary manslaughter, and, after the
denial of a motion for a new trial, was sentenced to serve a term in prison.
It is contended by the state that the defendant, while driving an automobile in a westerly
direction on highway No. 40, from Wadsworth in the direction of Reno, ran down and killed
one Emilio Cadlini.
The evidence shows that on the afternoon of August 2, 1936, the appellant, with another
Indian girl and two Indian men, visited the rodeo at Wadsworth and were drinking whiskey
and beer all of the afternoon and into the night, and that the defendant was considerably
intoxicated. The evidence also shows that the deceased was in Wadsworth that afternoon and
night, and left for his home, about two miles west of Wadsworth, on foot, a little before 11
o'clock; that the defendant was driving a Chevrolet coupe that afternoon and night; that
she left Wadsworth at 11:15, driving in a westerly direction.
driving a Chevrolet coupe that afternoon and night; that she left Wadsworth at 11:15, driving
in a westerly direction. It further appears that that evening, while in Wadsworth, the lenses to
both the headlights of her car were in perfect condition; and that the left fender was in good
condition. The evidence shows that the next morning defendant's car was found in Fernley,
about three miles east of Wadsworth, with the lens of the left headlight broken out, and that
the fender was badly damaged and the lamp knocked back. The body of the deceased was
found about seventy-five feet west of where his hat was lying on the shoulder of the south
side of the paved highway. The condition of the body indicated that it had been dragged some
distance. Glass from a Chevrolet car was found scattered from a point where the hat was
found, for many feet. The hat, body, and glass were found about an hour after the defendant
drove westerly from Wadsworth.
During the trial the justice of the peace who conducted the preliminary hearing testified
over defendant's objection to a certain alleged conversation between him and defendant. It is
strenuously insisted that the court committed prejudicial error in its ruling. The witness
testified that at the preliminary hearing he had a conversation with the defendant in the
presence of the district attorney, John Beyers, the court reporter and others, in which she
stated relative to her condition on the evening of August 2, 1936: I am willing to tell
everything, but I don't remember much. I was pretty drunk.
Counsel for the defendant objected on the grounds that it was not the best evidence; that
the law requires the evidence to be taken down, transcribed, and signed by the witnesses; that
it was the duty of the justice to advise defendant of her rights; and that it was improper for the
justice to conduct an independent examination.
Section 10775 N. C. L. (as amended by Laws 1933, c.
101) provides that the magistrate conducting a preliminary examination may employ a
stenographer to take down and transcribe the testimony and proceedings of a preliminary
hearing and that such testimony so transcribed and signed by the witness may be used by
either party on the trial of the case when the witness is sick, out of the state, dead or cannot be
present. It is optional with the magistrate as to whether a stenographer shall be employed.
In this connection we think it proper to state that section 10776 N. C. L. provides that
when the examination of the witnesses on the part of the state is closed, that the magistrate
must inform the defendant that it is his right to make a statement in relation to the charge
against him. Section 10778 provides the procedure to be followed in case the defendant
chooses to make a statement. The two succeeding sections pertain to the correction and
authentication of such statement. Section 10781 provides that if the defendant waives making
a statement he may be sworn and examined as a witness and cross-examined.
At the time the court ruled on the objection there was nothing before it to show that any
testimony had been taken at the preliminary hearing at the time of the so-called conversation
testified to by the magistrate, nor was there any showing to the effect that the testimony at the
preliminary hearing on the part of the state had been taken down and transcribed; nor was
there any showing as to what the proceedings were, if any, pursuant to sections 10776 to
10781, inclusive, or any of them. In fact, the objection of counsel leaves the inference that the
conversation was an independent examination.
1. It is true that there was some general talk relative to a transcript of the testimony, but it
is nowhere contended that the defendant made a statement such as contemplated by section
10778, not is it contended that she waived her right to make a statement and was sworn and
testified as a witness.
and testified as a witness. Certainly the statement testified to by the magistrate might properly
be given in evidence, if made in an extrajudicial or, as counsel says, in an independent
proceeding, and at the time of the ruling of the court there was no showing that such was not
the case.
2. On cross-examination the magistrate testified to the circumstances under which the
defendant made the statement given in evidence against her. Had a motion been then made to
strike the testimony of the magistrate, it would probably have been error had the court refused
to sustain the motion, but under the showing at the time the court ruled upon the objection
made no error was committed. Such being the fact, and no motion having been made to strike
the statement, we cannot say that prejudicial error appears in the record.
3, 4. It is strenuously contended that the evidence is insufficient to sustain the verdict. As
we pointed out in State v. Boyle, 49 Nev. 386, 248 P. 48, and previous decisions, article 6,
section 4, of our constitution, and section 11085 N. C. L. are to the effect that appeals to this
court in criminal cases can be taken on questions of law only; but we may say that we have
carefully digested the evidence in this case, and it is not only ample to sustain the verdict, but
we do not see how any other reasonable verdict could have been reached. The condition of
the defendant's car before the killing of the deceased and its condition the next morning are
very strong circumstances, unexplained, tending to show that it was defendant's car which
killed the deceased. The testimony of the justice of the peace is to the effect that she said that
she was pretty drunk the evening of the killing; but without this testimony there is
sufficient evidence in the record to justify the jury in finding that she was in that condition at
that time. The evidence really needs no consideration.
5, 6. It is contended that the court erred in giving instruction No. 5, which reads: The
court instructs the jury that driving a motor vehicle upon a public highway by one who is
intoxicated or under the influence of intoxicating liquor is criminal negligence in and of
itself, that is, as a matter of law."
the jury that driving a motor vehicle upon a public highway by one who is intoxicated or
under the influence of intoxicating liquor is criminal negligence in and of itself, that is, as a
matter of law.
If it be conceded that this instruction standing alone would be misleading and prejudicial,
we would not be justified in reversing the judgement, for the court gave another instruction
which cures any error which may have been committed by the giving of the above instruction.
The curative instruction reads: You are instructed that it is not sufficient in this case for the
prosecution to establish that the defendant Louise Beyers was intoxicated. It is essential to a
conviction that the prosecution establish beyond a reasonable doubt that the defendant by
reason of her intoxication, if you find she was so intoxicated, committed some act or omitted
some duty in the driving of said car whih was the approximate cause of the accident. It is
essential in addition to the proof of intoxication, if you believe the defendant to have been the
driver of the car in question, to prove beyond a reasonable doubt that in driving said car at the
time and place alleged in the information, the defendant drove said car by reason of which the
deceased was killed.
This instruction embodies all of the essential elements necessary for the jury to have found
to exist as a prerequisite to finding her guilty. All of the instructions must be read together,
and, from a reading of the instruction last quoted, it will be seen that the jury was told that
before it could convict the defendant it must find, in addition to finding that she was
intoxicated, that she was the driver of the car that killed deceased, and that she was driving it,
at the time and place of killing him, in a reckless manner. This instruction is in harmony with
section 4352 N. C. L.
A similar objection to that made to the instruction first quoted is made to other
instructions. There is no conflict among the instructions given.
For the reasons pointed out, the defendant was in no way prejudiced.
Judgment affirmed.
____________
58 Nev. 133, 133 (1937) Babcock & Wilcox Co. v. Nolton
THE BABCOCK & WILCOX CO., A Corporation, B.T. KEHOE and JOHN DOE JARVIS,
Appellants. v. CHESTER D. NOLTON and MARGUERITE NOLTON, His Wife,
Respondents.
No. 3190
October 5, 1937. 71 P. (2d) 1051.
1. Negligence.
A license is distinguished from an invitation, in that a licensee is on the premises by sufferance only
and not by virtue of any business or contractual relation with, or any enticement, allurement, or inducement
to enter held out to him by owner or occupant, but merely his own interest and for his own purposes,
benefit, convenience, or pleasure.
2. Negligence.
To have the status of a licensee, the owner or person in charge of premises must have knowledge of
licensee's entry or his presence thereon, or of a customary use of the particular portion of property used for
the purpose for which such person is using it.
3. Negligence.
Even active negligence causing injury to a licensee does not create liability in owner or person in charge
of property unless such person or his employer was, or in exercise of reasonable care should have been,
aware of presence of licensee in a place where licensee might be injured.
4. Automobiles.
If visitors to company's plant habitually used parking space reserved for company or employees'
automobiles, without objection by company, such habitual use without objection would give rise to an
implication of consent to such use so that users would have status of licensees instead of trespassers, as
respects liability of company for damages sustained by passenger in automobile parked in restricted area
when employee of company backed truck into automobile.
5. Automobiles.
In action by occupant of automobile parked by her husband in space forbidden to visitors for injuries
sustained when employee of owner of premises backed truck into automobile, evidence
tending to show that it was customary for visitors to park in such space and that
owner knew thereof sustained finding that occupant and her husband were
"licensees" as against contention that they were trespassers because automobile was
not parked in space reserved for visitors.
employee of owner of premises backed truck into automobile, evidence tending to show that it was
customary for visitors to park in such space and that owner knew thereof sustained finding that occupant
and her husband were licensees as against contention that they were trespassers because automobile was
not parked in space reserved for visitors.
6. Automobiles.
Owner's knowledge of use of certain part of premises by visitors which had been forbidden to them could
be implied from circumstances, as respects whether a person injured while in automobile parked in space
forbidden to visitors could recover as a licensee under evidence showing that it was customary for visitors
to park there.
7. Negligence.
Owner of premises was obligated to refrain from willfully or wantonly injuring licensee and to use care to
avoid injuring licensee after her presence was, or under the circumstances should have been, discovered.
8. Automobiles.
An owner was liable for active negligence of servant in backing truck against automobile parked on
owner's premises in which licensee was sitting.
9. Negligence.
An owner, while a licensee is upon the premises in exercise of due care, who is affirmatively and actively
negligent in the management of his property or business, as a result of which the licensee is subjected to
increased hazard and danger, is liable for injuries sustained by licensee as result of such active and
affirmative negligence.
10. Damages.
$15,000 for injuries to woman's lower back and right leg of a permanent nature, resulting in suffering and
impairment of woman's health and nervous system and for examinations and treatment by physicians, for
drugs, etc., was not excessive.
11. Damages.
Damages are recoverable for mental pain, disassociated from bodily suffering in damage cases growing
out of contract.
12. Damages.
Damages for mental pain as distinguished from bodily pain are recoverable in damage cases growing out
of negligence.
13. Trial.
In action for injuries, instruction with respect to mental pain was not insufficient in absence of a request
for a more specific instruction.
Appeal from District Court, Eighth Judicial District, Clark County; Wm. E. Orr, Judge.
Action by Chester D. Nolton and another against the Babcock & Wilcox Company and
others. From an adverse judgment, the said company appeals. Affirmed.
Leo A. McNamee and Frank McNamee, Jr., for Appellant:
Regardless of what the status of plaintiffs would have been had they parked their car in the
area set aside by the company for visitors, there can be no question but that, when they parked
in a space reserved by the defendant for its own use only, they overstepped the bounds of
their permission and became trespassers. 45 C. J. 814, and n. 51; Hall v. Capps (Ga.), 182 S.
E. 625; 45 C. J. 812, sec. 221.
The duty owed by the occupant of property to a trespasser is generally stated to be that no
duty exists, except to refrain from willfully or wantonly injuring him. 45 C. J. 742, sec. 132.
There is no duty on the part of the occupant to anticipate the presence of a trespasser. 20
R.C.L. pp. 57-61, sec. 53; Sage v. Creech (Ky.) 240 S.W. 42.
Even if plaintiffs did not know they were trespassing, the duty of the landowner was not
thereby increased. Ann. to 41 A. L. R. 1430; Kirkpatrick v. Damianakes (Cal.), 59 P. (2d)
556.
The mere toleration of a trespass does not constitute a license. Texas O. &. E. R. R. v.
McCarroll (Okla.), 195 P. 139.
Even if plaintiffs should be considered as licensees, upon the theory that they were invited
to the premises and went beyond the boundaries of their invitation (45 C. J. 794, sec. 198, and
p. 830, sec. 230), the duty of the defendant was not increased except to the extent that if the
defendant became aware of the plaintiff's presence, then it was required to exercise ordinary
care. But even active negligence causing injury to a licensee does not result in any liability
unless the licensor was, or in the exercise of reasonable care should have been, aware of the
presence of licensee in a place where he might be injured.
aware of the presence of licensee in a place where he might be injured. Linkholm v.
Northwestern Pac. R. Co. (Cal.), 248 P. 1033.
There was no evidence that the driver of the truck, or the defendant company, was aware
of the presence of plaintiff's car in the place where it was. On the contrary, the driver testified
he did not see the car before he backed into it. And while there was evidence that at times
tourists parked all over the lot, yet there was no evidence to show that the driver of the truck,
or the defendant company, was aware of it, or that it was permitted without objection.
The court erred in directing the jury, if they found for plaintiffs, to take into consideration
and allow compensation for (among other elements of damage): physical and bodily pain and
suffering; mental pain and suffering; fright and shock suffered; future physical and bodily
pain and suffering, mental anguish, and anxiety. Johnson v. Wells, Fargo & Co., 6 Nev. 224,
3 Am. Rep. 245; Annotations to 23 A. L. R. 361.
Ham & Taylor and V. Gray Gubler, for Respondents:
The evidence is conclusive that the plaintiffs were invitees, but even though they were
trespassers, they were entitled to security from any such reckless and wanton conduct as that
displayed by the driver of the truck. 45 C. J. 750, 753.
Certainly, if the plaintiffs were trespassers, and trespassers had been suffered by the
hundreds daily for a number of years under identical circumstances, it was the express duty
of the defendant to anticipate the presence of these particular trespassers.
A property owner may be guilty of negligence in the use of his own premises in such a
manner as to be liable to one who is technically a trespasser thereon. McKiddy v. Des
Moines, 206 N. W. 815; Daley v. Norwich, 68 Am. Dec. 413; O'Leary v. Brooks, 41 L. R. A.
677; Lose v. Salt Lake City, 44 P. 1050; American Law Institute Restatement of the Law of
Torts, secs. 334, 336, and 346; 52 C. J. 557, 561; Doyle v. Portland Railway {Ore.),
346; 52 C. J. 557, 561; Doyle v. Portland Railway (Ore.), 143 P. 623; Teakle v. San Pedro, L.
A. & S. L. Ry. (Utah), 90 P. 402.
Who could say, under the circumstances in this case, that the truck driver did not willfully
back into the plaintiff's car? That was the special province of the jury to decide. And who but
the jury could say that it wasn't wanton misconduct for him to ram the rear end of his truck
into a parking area where hundreds and hundreds of cars parked daily? Who can say whether
he did or did not know about these cars parking there? The area certainly came under his
observation, and if he did not know it, it was the duty of his superior to inform him.
Counsel are in error in their statement that the mere toleration of a trespass does not
constitute a license. 52 C. J. 541, nn. 37 to 40.
If the effect of the case of Johnson v. Wells, Fargo & Co. was to establish the rule
contended by appellant, as to pain of mind, it was expressly overruled in the case of
Quigley v. Central Pacific R. R. Co., 11 Nev. 350. The modern and correct rule in that class
of cases in which the mental pain and suffering is connected with and the direct and natural
results of physical injuries, is set forth by the following authorities: Larson v. Chase et al., 47
Minn. 307, 50 N. W. 238, 28 Am. St. Rep. 370, 14 L. R. A. 85; Beaulieu v. Great Northern R.
R. Co., 19 L. R. A. (N. S.) 564, 114 N. W. 353, 14 Ann. Cas. 462; City of Ada v. Smith
(Okla.), 175 P. 924; Boa v. San Francisco-Oakland Terminal Ry. Co. (Calif.), 187 P. 2; Jones
v. United R. R. of San Francisco, 202 P. 919; Rostad v. Portland Ry. Light & Power (Ore.),
201 P. 184; Tomasi v. Donk Bros. Coal & Coke Co., 257 Ill. 70, 100 N. E. 353; McGlone v.
Hanger, 104 N. E. 116; Ryan v. Oakland Gas, Light & Heat Co. (Cal.), 130 P. 693; Malone v.
Sierra Ry. Co. (Cal.), 91 P. 522; Trabing v. Cal. Nav. & Imp. Co. (Cal.), 65 P. 475; Chicago
R. I. & G. Ry. Co. v. Barnes, 111 S. W. 447; 17 C. J. 828; 8 R. C. L. sec. 74. p. 517.
OPINION
The appellant seeks a reversal of a judgment of the district court for $15,000 assessed
against it by the verdict of the jury as compensation for personal injuries alleged to have been
sustained by the respondent Marguerite Nolton on premises controlled by the company and in
consequence of its negligence.
On January 18, 1935, and for some time prior thereto, appellant was a corporation engaged
in the manufacture and fabrication of steel piping and tubing near Boulder City, and
maintained an office adjacent to its plant. In front of its office and to the southward, separated
by a terrace, it maintained an automobile parking space. The area of land embraced in this
space was roughly in the shape of a letter V, with the upper part abutting the terrace and
extending a short distance to the left, or in a westerly direction. A small stairway directly in
front of the center of the building extended from the parking space to the top of the terrace.
This space was reached by automobiles over a private road about 200 yards in length,
branching from the Boulder Dam highway and entering the parking area from the south, at the
tip of the V. On the terrace immediately to the right and east of the stairway leading to the
top of it was a sign which read: Company Cars Only. Immediately to the west of the
stairway and on the terrace was a sign which read: Government Cars Only, and about 20
feet west of that on the terrace was a sign which read: Company Cars Only. On the west
side of the private roadway where it entered the area was a sign which read: Visitors
Parking.
A driveway extended from the upper easterly part of the parking space northeasterly
around the office building to the fabricating plant, a distance of about 200 feet. A water
hydrant was situated on this driveway halfway between the office and the fabricating plant. At
the west end of the building which housed the plant a stairway on the outside lead from
the ground to a door above opening into a landing provided by appellant as a visitor's
gallery for the convenience of tourists and other sightseers from which they could view
the work going on below.
west end of the building which housed the plant a stairway on the outside lead from the
ground to a door above opening into a landing provided by appellant as a visitor's gallery for
the convenience of tourists and other sightseers from which they could view the work going
on below. At the foot of this stairway was a sign which read: Visitor's Gallery.
The fashioning of the huge pipes and tubes for the tunnels of the Boulder Dam project was
a work of great interest and attracted many visitors to the plant. The government guides and
others included this plant in their itinerary.
On January 18, 1935, respondents, traveling in their automobile with a government guide,
came from the Boulder Dam highway over the private road and entered the parking space for
the purpose of visiting the fabricating plant. At the direction of the guide respondent Nolton,
who was driving, parked his car at a point immediately to the right of the terrace stairway and
about 40 feet south of it. Nolton and his guide proceeded to the visitor's gallery. Mrs. Nolton
remained in the automobile. While they were at the plant Wesley B. Jarvis, an employee of
appellant, drove a Ford truck in from the Boulder Dam highway over the private road to the
water hydrant. After replenishing the radiator, he backed the truck down the highway around
into the parking space against respondents' automobile. The impact damaged the door and
spring of the latter vehicle and injured Mrs. Nolton.
Appellant contends that all of the parking space dominated by the signs on the terrace was
a restricted area from which automobiles carrying visitors were excluded, and that
consequently respondents were trespassers to whom appellant owned no duty, except to
refrain from willfully or wantonly injuring them; and that the evidence shows that such duty
was not violated.
Appellant, in addition to assigning as error insufficiency of the evidence and excessive
damages, specifies error as to a number of instructions given and refused.
error as to a number of instructions given and refused. The contention of error as to the
instructions was practically abandoned, except as to one which will be discussed later. In their
reply brief counsel for appellant make no reply to the defense made by counsel for
respondents in their brief as to the instructions. Moreover, in the oral argument in this court,
the former stated there was little difficulty with the instructions, and that their main
contention was that the evidence is insufficient to sustain the verdict on judgment.
We are of the opinion that the jury was fully and fairly instructed on the law of the case.
1-4. It is insisted by appellant that the sign at the portal of the parking space on the south,
reading, Visitors Parking, carried an arrow pointing to the left of the signs on the terrace,
and by respondents that this sign was so placed as to invite visitors to any part of the parking
space. However, we need not determine the dispute. Conceding that the parking space before
the office building clear to the southern extent of such space was a restricted area as noticed
by the signs on the terrace, we think there was sufficient evidence to entitle respondents to
recover as licensees. The jury were correctly instructed as to this phase of the case, as
follows:
A license is distinguished from an invitation, in that a licensee is on the premises by
sufferance only and not by virtue of any business or contractual relation with, or any
enticement, allurement, or inducement to enter held out to him by the owner or occupant, but
merely his own interest and for his own purposes, benefit, convenience or pleasure.
In order that a person may have the status of a licensee the owner or person in charge of
the premises must have knowledge of his entry or his presence thereon, or of a customary use
of the particular portion of the property used for the purpose of which such person is using
it.
You are instructed that with respect to a licensee, the owner or person in charge of
property owes him no duty except to refrain from willfully or wantonly injuring him, or to
use care to avoid injuring him after his presence is, or under the circumstances, should
have been discovered."
the owner or person in charge of property owes him no duty except to refrain from willfully
or wantonly injuring him, or to use care to avoid injuring him after his presence is, or under
the circumstances, should have been discovered.
Even active negligence, causing injury to a licensee, does not create a liability unless the
person guilty of such active negligence, or his employer was, or in the exercise of a
reasonable care should have been aware of the presence of the licensee in a place where he
might be injured.
* * * If you find from a preponderance of the evidence that the portions of this space so
designated for the use of company cars or employees' cars was habitually used by visitors to
park their cars on, without objection by the defendant, such customary or habitual use without
objection may give rise to an implication of consent to such use so that the users may have
the status of licensees instead of trespassers.
Respondents' evidence tends to prove such habitual or customary use by visitors in parking
their cars in the space indicated by the signs on the terrace as a restricted area.
Respondent Nolton testified that at Boulder City through arrangements with the city
manager he was furnished with a government guide, and that his car was parked in the place
where the accident occurred by the direction of that guide.
Jerry George, a witness for respondents, testified that in the month of January 1935, he
was a bus agent for the Union Pacific Company driving from Las Vegas to Boulder City and
other points, and had been in that employment for some time during the year 1934; that his
employment in that capacity took him to Boulder City sometimes twice a day for a week and
then again weekly. On these trips he always drove into the parking space, as the fabrication
plant was one of the attractive spots. He would park his bus in front of the office building and
the passengers would walk to the plant. "Usually," he said, "the busses, because of their
length, we would try to back up beyond to the left of the building as you enter," but it was
his custom to park anywhere upon that area where there was an open parking space. He
further testified that on these trips he had seen many automobiles of visitors on the area
that he parked upon. "I have seen so many in there," he said, "that it was rather hard to
find a place to park."
"Q. In front of the building did you see them? A. Yes.
building and the passengers would walk to the plant. Usually, he said, the busses, because
of their length, we would try to back up beyond to the left of the building as you enter, but it
was his custom to park anywhere upon that area where there was an open parking space. He
further testified that on these trips he had seen many automobiles of visitors on the area that
he parked upon. I have seen so many in there, he said, that it was rather hard to find a
place to park.
Q. In front of the building did you see them? A. Yes.
Q. Would you say they extended at times out to the road leading down to the fabricating
plant? A. Well, I have seen them parked there, they would have to be parked double in order
to extend out to the road, but I have seen that. I have seen it full.
Q. Parked clear to the road? A. Yes.
This condition was mostly on week-ends and holidays, he stated.
W. H. Trimble was a witness for respondents. He was chief of police in Boulder City, and
chief ranger. He had been in such employment for about two years prior to the accident. His
duties had to do with traffic in and about Boulder City, around the dam and areas, to prevent
congestion, to enforce speed laws and regulate parking. He was familiar with the parking area
in front of appellant's office.
Q. Did that area extend up to the road that went through to the Babcock-Wilson plant? A.
Yes, sir.
Q. Have you seen automobiles parked up parallel to that road, maybe one or two lanes of
cars, besides the company cars? A. I have seen different bunches of cars parked to the left.
Q. And close to the highway? A. Up there at the neck it was very close, yes.
Q. And was any complaint ever made to you that cars shouldn't stop there? A. I never had
a complaint about parking in there, I have never had to send a man there at all.
Q. Have you seen them park virtually, visitor's cars, virtually all over the place? A. At
different time I have, yes.
Fred Jensen testified in behalf of respondents. He was a deputy sheriff during January
1935. Previous to that and since August 23, 1931, he had been a United States ranger. His
official duty was to handle traffic from Boulder City to Boulder Dam and adjacent areas,
including appellant's plant and parking space. He had particular knowledge of said parking
space during the month of January 1935, and had charge of the traffic in and about it. Asked
if he knew who used all of that area for parking, he replied: Well, most everybody knew it
was the only place to park in there, so naturally everybody that went into the B & W used that
area. He testified that all of the area to the left of the road leading to the fabrication plant
was used by visitors and the public generally for parking purposes; that in January 1935 there
were a lot of them coming in there, about 225 cars a day; that tourists parked anywhere, clear
to the main road; that during the month of January 1935 it was customary to park a line of
visitors' cars in that area immediately in the rear of the company cars. He testified that neither
Mr. Kehoe, the superintendent, or any official of the company ever complained to him about
the parking on that area, or ever instructed him to keep people off of it.
5. This evidence, though in the main contradicted by employees of appellant and others
testifying in its behalf, was sufficient to warrant the jury in giving the respondents the status
of licensees.
6. Appellant contends the evidence fails in this respect because it does not show that
appellant had knowledge of such customary use. While there is no direct evidence of
knowledge on the part of appellant, we are of the opinion that the circumstances as shown by
respondents' witnesses of the use constantly made of the parking space immediately in front
of the office building used by the superintendent and other officials of the appellant
tended to prove knowledge on its part.
by the superintendent and other officials of the appellant tended to prove knowledge on its
part. At the least, circumstances were sufficient to imply knowledge. That such knowledge
may be implied was recognized in Brannan v. Wimsatt, 54 App. D. C. 374, 298 F. 833, 36 A.
L. R. 14.
7. As the jury was entitled to conclude from the evidence that respondent Mrs. Nolton had
the status of a licensee on the premises, the duty imposed on appellant was, as stated in the
instructions, to refrain from willfully or wantonly injuring her, or to use care to avoid injuring
her after her presence was, or under the circumstances should have been, discovered.
8-10. There is no evidence of willful or wanton negligence on the part of appellant's
employee in backing the truck against respondents' car, but the evidence sustains lack of due
care on his part, resulting in active negligence, for which appellant is liable. The great weight
of authority is to the effect that a person guilty of active negligence, as distinquished from
passive negligence, is liable for resulting injury to a licensee. Brigman v. Fiske-Carter Constr.
Co., 192 N.C. 791, 136 S. E. 125, 127, 49 A. L. R. 773, and cases collected in the annotation
to the latter citation on page 783 et seq. The facts in Brigman v. Fiske-Carter Constr. Co.,
supra, are practically the same as in the instant case, except as to the status of the parking
place in which the car struck by the truck was standing. The court held that the woman
injured was an invitee on the premises, but stated: If the owner, while the licensee is upon
the premises in the exercise of due care, is affirmatively and actively negligent in the
management of his property or business, as a result of which the licensee is subjected to
increased hazard and danger, the owner will be liable for injuries sustained as the result of
such active and affirmative negligence.
We are in accord with the rule declared. We have carefully reviewed the evidence as to
damages. There is a conflict as to the extent and permanency of Mrs.
is a conflict as to the extent and permanency of Mrs. Nolton's injuries, but enough was proved
to sustain the verdict against the charge that it was excessive. Mrs. Nolton's testimony shows
injuries to her lower back and right leg of a permanent nature, resulting in suffering and the
impairment of her health and nervous system. Her testimony in these respects is corroborated
by physicians who testified in behalf of respondents. In addition, there was considerable
outlay for examinations and treatment by physicians, drugs, etc.
Appellant complains of the instruction in which the court stated the elements of damages
for which recovery could be had. It reads in part:
In assessing damages, if you find the plaintiffs entitled to recover damages, you should
take into consideration the following elements, in the event any of them are found to exist,
and allow adequate compensation therefor. * * *
(8) Physical and bodily pain in consequence of the wrong, if any:
(9) Mental pain and suffering by Marguerite Nolton, if any. * * *
The item complained of is pain of mind, and it is contended that the case of Johnson v.
Wells, Fargo & Co., 6 Nev. 224, 3 Am. Rep. 245, is ruling against the recovery of such
element of damages. That is a case which arose from the negligence of the appellant in
furnishing an unsafe coach for transportation, the breaking down of which the injury
complained of was caused. The lower court instructed the jury that in estimating damages it
could take into consideration the bodily suffering of the plaintiff, his pain of mind, etc. The
part allowing consideration of pain of mind was condemned by the court, which held that
mental pain as distinct from bodily pain is not the subject of compensation where the injury is
the result of negligence. This rule declared in Johnson v. Wells, Fargo & Co., supra, was
criticized in Quigley v. C. P. R. R. Co., 11 Nev. 350, 21 Am.
Am. Rep. 757 and a contrary view taken in Powell v. Nevada, C. & O. Ry., 28 Nev. 40, 78 P.
978; Id., 28 Nev. 305, 82 P. 96, an action for personal injuries caused by negligence. In the
latter case the court held that there is no fixed rule for the measure of damages, especially for
mental anguish apart from physical suffering, and much must be left to the jury under proper
instructions from the court.
Quigley v. C. P. R. R. Co., supra, was not a case of wrongful injury by negligence, but for
injuries willfully inflicted, and the court held that mental anguish was a proper element of
damage. Justice Hawley, who wrote the main opinion, criticized the ruling in Johnson v.
Wells, Fargo & Co., supra, in the following language: The instruction which was there given
authorized the jury in estimating the damages to take into consideration the bodily suffering
of the plaintiff, his pain of mind,' etc. The objections were to the words his pain of mind,'
and a majority of the court held that the plaintiff was not entitled to any damages for his pain
of mind, aside and distinct from his bodily suffering.' A careful examination of all the
authorities cited and reviewed in Johnson v. Wells, Fargo & Co. and of the subsequent cases
of Pennsylvania & Ohio Canal Co. v. Graham, 63 Pa. 290 [3 Am. Rep. 549]; Smith v.
Holcomb, 99 Mass. 552; Holyoke v. Grand Trunk Railway, 48 N. H. 541; Matteson v. New
York Central R. Co., 62 Barb. [N. Y.] 364; Smith v. Overby, 30 Ga. 241; Cox v.
Vanderkleed, 21 Ind. 164; Gould v. Christianson [Fed. Cas. No. 5,636], 1 Blatchf. & H. 507;
Cooper v. Mullins, 30 Ga. [146], 152 [76 Am. Dec. 638]; and Fay v. Parker, supra [53 N. H.
342, 16 Am. Rep. 270], which bear more or less upon the point decided, has convinced me
that the instruction in Johnson v. Wells, Fargo & Co., in the particulars referred to, was
correct.
We are of the opinion that Justice Hawley's criticism was just and that the ruling criticized
is opposed by the weight of authority. Justice Whitman, who wrote the opinion in Johnson v.
Wells, Fargo & Co., decided in 1S70, stated that "it is safe to say, no well considered case
can be found to support the instruction in the present."
opinion in Johnson v. Wells, Fargo & Co., decided in 1870, stated that it is safe to say, no
well considered case can be found to support the instruction in the present.
Be that as it may, subsequent authority is ample and satisfactory. The rule thus established
is stated in 17 C. J. p. 832: Mental pain and suffering as a direct and necessary consequence
of a physical injury is a distinct element of damages, and the person injured is entitled to
compensation therefor. The mental pain for which compensation may be had under this rule,
however, must be such as accompanies the physical injury and is fairly and reasonably the
natural consequences which flow from it.
A wealth of authority cited in notes 68 and 69 supports the rule stated.
In addition may be cited: Macke v. Sutterer, 224 Ala. 681, 141 So. 651; Krinard v.
Westerman, 279 Mo. 680, 216 S. W. 938; Gulport & Mississippi Coast Traction Co. v.
Raymond, 157 Miss. 439, 128 So. 327; Morris v. St. Paul City Ry. Co., 105 Minn. 276, 117
N. W. 500, 17 L. R. A. (N. S.) 598; Iseman v. Hayes, 242 Ky. 302, 46 S. W. (2d) 110, 85 A.
L.R. 996; Merrill v. Los Angeles Gas & Electric. 158 Cal. 499, 111 P. 534, 540, 139 Am. St.
Rep. 134, 31 L. R. A. (N. S.) 559; 8 R. C. L. 512.
The reason given in Johnson v. Wells, Fargo & Co. for the ruling forbidding recovery for
mental suffering, in addition to lack of precedent, is that such damages are incapable of any
definite calculation. It is not discernible why they are any more difficult of estimation than
damages for bodily suffering, yet the latter has been constantly held to be a proper element of
damages. As stated by the court, speaking through Justice Henshaw in Merrill v. Los Angeles
Gas & Electric Co., supra: In truth the admeasurement of suffering in terms of money is a
most clumsy device; but it is the best device which the law knows, and it is a device which
the law will employ until some better is discovered. To forbid the consideration of these
others elements of mental suffering, because the scales are not sufficiently delicate for
their admeasurement, is equally to condemn the use of the scales, in the very cases and
for the very purposes now admittedly sanctioned by the law."
the consideration of these others elements of mental suffering, because the scales are not
sufficiently delicate for their admeasurement, is equally to condemn the use of the scales, in
the very cases and for the very purposes now admittedly sanctioned by the law.
11. That recovery of damages may be had for mental pain, disassociated from bodily
suffering in damage cases growing out of contract, is the settled law of this state. Barnes v.
W. U. Tel. Co., 27 Nev. 438, 76 P. 931, 65 L. R. A. 666, 103 Am. St. Rep. 776, 1 Ann. Cas.
346; Burrus v. N-C.-O. Ry. Co., 38 Nev. 156, 145 P. 926, L. R. A. 1917d, 750.
12, 13. If the law can weigh mental suffering in that class of cases, why may it not with
equal justice do so in cases where the wrongful act causing physical injury is the result of
negligence? Johnson v. Wells, Fargo & Co., insofar as it holds that mental pain, as distinct
from bodily pain, is not the subject of compensation in a case where the injury is the result of
negligence, is expressly overruled.
The instruction is not objectionable in including mental pain as an element of damages for
which compensation could be allowed. If appellant wished a more specific instruction in that
respect, he should have requested it.
The judgment and order denying a new trial are affirmed.
____________
58 Nev. 149, 149 (1937) Taylor v. Taylor
DONALD F. TAYLOR, Respondent, v. A. C. TAYLOR Et Al., Etc., Appellants.
FRANCIS B. TAYLOR, Respondent, v. A. C. TAYLOR Et Al., Etc., Appellants.
No. 3107
November 4, 1937. 72 P. (2d) 1105.
Where bill of exceptions had been remanded for correction without prejudice to renewal of respondent's
motion, respondents could not, on correction and return of bill of exceptions, have it striken for alleged
defects which existed when first motion had been made, but for grounds not contained in first motion.
Contention of respondents that orders extending time for filing and serving of bill of exceptions were
invalid because ex parte orders, and because no copies had been served on respondents, was waived, where
it had not been made in lower court in apt time.
3. Appeal and Error, Exceptions, Bill of.
The purpose of a bill of exceptions is to embody in the record proceedings which are not part of record
proper, whereas order for diminution of record serves to bring up something which is part of record proper,
but omitted therefrom.
Motion to remand bill of exceptions for correction and amendment, in trial court's discretion, so as to
make it speak the truth by including alleged orders of trial court extending time for filing and serving of bill
of exceptions, would be granted, where motion set forth copies of orders extending time for filing and
serving, and where there was uncontradicted affidavit setting forth correspondence between parties.
Actions by Donald F. Taylor and by Francis B. Taylor against A. C. Taylor and others.
From the judgments, the defendants appeal. On plaintiffs' motion to strike portions of the
record, including the bill of exceptions, and to dismiss the appeal, and on counter motion by
the defendants to remand the bill of exceptions for further correction and amendment.
Counter motion of defendants granted, and motions of plaintiff's denied, without
prejudice to their renewal.
defendants granted, and motions of plaintiff's denied, without prejudice to their
renewal.
Milton B. Badt, for Appellants:
There is no warrant by statute or rule of court for respondents to make new and successive
motions to dismiss, on new and additional grounds, without leave of court therefor. But if
said right can be said to exist, then appellants should be allowed the opportunity to correct the
record where an omission appears by reason of the succeeding motions.
Counsel for respondents, having continuously and consistently advised counsel for
appellants that there was no objection of the making of the orders extending time to serve and
file bill of exceptions, are, in good conscience, barred, foreclosed, and estopped from now
contending that although all four orders were made, the absence of one of them from the bill
of exceptions deprives this court, not only of its jurisdiction to review the matter, but of its
right to remand the record for correction, so as to include the missing order.
Prince A. Hawkins and Hawkins, Mayotte & Hawkins, for Respondents:
It is submitted, under the record in this case and the decision of this court in Peri v. Jeffers,
53 Nev. 49, 292 P. 1, and other decisions of this court re said matter, that appellants' motion
to remand should be denied.
It is apparent from the record before the court that the present motions of respondents were
contained in the original motions filed in March 1935, and of which appellants were
definitely advised.
The record discloses that all and each of the orders extending time to file bill of exceptions
were ex parte orders, made on motion of Milton B. Badt, Esq., attorney for all the defendants
except A. C. Taylor individually, and that there was no service of either of the purported
orders upon plaintiff or plaintiff's attorneys in either of the actions, until service of the
"Consolidated Record on Appeal or Bill of Exceptions," in December 1934.
in either of the actions, until service of the Consolidated Record on Appeal or Bill of
Exceptions, in December 1934.
OPINION
This case was previously before us. 56 Nev. 100, 45 P.(2d) 603. At that time we ordered
the bill of exceptions remanded for correction, without prejudice to the renewal of
respondents' motions. Since its correction and return to this court, counsel for respondent has
made a motion to strike portions of the record, including the bill of exceptions, and to dismiss
the appeal. Counsel for appellant has made a counter motion to remand the bill of exceptions
for further correction and amendment.
Counsel for respondent, in the last-mentioned motion, sets forth grounds not contained in
their first motion, notwithstanding the order of the court, in giving permission to again move,
limited the grounds of such new motion. Notwithstanding this fact, it is sought to have the
bill of exceptions stricken and the appeal dismissed for a defect which existed when the first
motion was made.
1. We do not deem it necessary to dispose of the contention of appellant that respondent
waived the grounds of the motion not contained in the first motion, though we are inclined to
the view that the contention as to waiver is good. Miller v. Walser, 42 Nev. 497, 506, 181 P.
437; Iowa Min. Co. v. Bonanza Min. Co., 16 Nev. 64.
In view of the fact that one of the grounds of the present motion to strike the bill of
exceptions, not contained in the previous motion, is not only well taken but will probably
dispose of this case unless the counter motion is disposed of, or unless we finally hold that
the contention was waived, we will consider such counter motion.
motion. The motion now made by respondent is to strike the bill of exceptions for the reason
that it was not filed within the time provided by law.
The counter motion sets forth copies of two orders of the trial court extending the time for
the filing and serving of the proposed bill of exceptions, attached to which are copies of said
orders certified to by the clerk of the court. In addition thereto, there is an uncontradicted
affidavit of counsel for appellant, setting forth correspondence and telegrams which passed
between him and counsel for respondent.
2. In this connection, it is contended by respondent that the orders were ex parte orders
and that no copy of the orders extending the time for filing and serving a bill of exceptions
was served upon respondent, hence such orders are invalid. We do not deem it necessary to
pass upon the point made. If the point has any merit, it should have been made in the lower
court in apt time. Such not being the case, the point must now be deemed waived.
3. Counsel for respondent rely upon the case of Peri v. Jeffers, 53 Nev. 49, 292 P. 1, 293
P. 25, 298 P. 658, as an authority justifying a refusal of the application to remand the bill of
exceptions. That case is not in point; there was no application to remand the bill of exceptions
for correction or amendment, but a motion for a diminution of the record. The purpose of a
bill of exceptions is to embody in the record proceedings which are not a part of the record
proper, whereas an order for a diminution of the record is to bring up something which is part
of the record proper but omitted therefrom. In the case mentioned, the court refused to order
up what was not a part of the record proper.
If the trial court made the orders contended for and certified to by the clerk, they should be
in the bill of exceptions. The trial court, only, can determine if these orders were in fact made.
4. It is ordered that the bill of exceptions on file in this case be remanded by the clerk of
this court to the clerk of the Second judicial district court, in and for Washoe County,
Nevada, for correction and amendment by the court, in its discretion, so as to make it speak
the truth as to the matters in question, unless counsel for respondents stipulate within ten days
that the said bill of exceptions be deemed amended as sought by appellant.
It is further ordered that, in case of refusal of respondents to stipulate, and of the
amendment of said bill of exceptions by the trial court, all costs incident thereto be taxed to
respondent.
It is further ordered that all of the motions of respondent be denied, without prejudice to
their renewal within ten days after said bill of exceptions be returned to the clerk of this court
and written notice thereof is given respondent. In case of a stipulation as to such bill of
exceptions, respondents shall have ten days from the date thereof in which to renew their
motion.
____________
58 Nev. 154, 154 (1937) Wilson v. Goldring
MARION WILSON; MARION WILSON, Authorized Power of Attorney for Thelma
Okelberry; ALICE MOORE; ALICE MOORE, Guardian for Shirley Moore Olson;
DOROTHY OKELBERRY; WARREN OKELBERRY; and ELLA WASHINGTON,
Plaintiffs, v. CHARLES GOLDRING, Trustee in Bankruptcy for the Estate of Marion
Wilson, Bankrupt; COLONIAL BUILDING & LOAN ASSOCIATION, a Corporation,
Formerly the Continental Building & Loan Association; D. H. JOHNSON; A. J. Schur,
Defendants.
No. 3215
November 4, 1937. 72 P. (2d) 1109.
Appeal from order striking complaint from files and dismissing action with prejudice was required to be
dismissed where appellant did not file an undertaking on appeal nor deposit in lieu thereof any sum of
money with clerk of court, to abide the event of the appeal, as required by statute (Comp. Laws, sec. 8893).
2. Costs.
Where appeal from order striking complaint from files and dismissing action with prejudice was taken in
substantially the same matter as a prior appeal and solely for delay and to annoy and harass one of the
defendants, $500 was assessed against appellant as damages in favor of the party harassed by the appeal.
Appeal from Eighth Judicial District Court, Clark County, Wm. E. Orr, Judge.
Suit by Marion Wilson and others against Charles Goldring, trustee in bankruptcy for the
estate of Marion Wilson, bankrupt, and the Colonial Building & Loan Association, formerly
the Continental Building & Loan Association, and others. From an order striking the
complaint from the files and dismissing the action with prejudice, the named plaintiff
appeals. On motion of the Colonial Building & Loan Association to dismiss the appeal and to
assess damages against Marion Wilson and in favor of the Colonial Building & Loan
Association, on the ground that the appeal was taken solely for delay and to annoy and
harass the Colonial Building & Loan Association.
the ground that the appeal was taken solely for delay and to annoy and harass the Colonial
Building & Loan Association. Appeal dismissed and damages assessed against Marion
Wilson in accordance with the opinion.
A. A. Hinman, for Colonial Building & Loan Association. No appearance for plaintiffs.
OPINION
On March 27, 1937, Marion Wilson and others, as plaintiffs, filed a suit in the Eighth
judicial district court of Nevada, in and for Clark County, against Charles Goldring, trustee in
bankruptcy for the estate of Marion Wilson, bankrupt, Colonial Building & Loan Association,
a corporation, and others, numbered 7433.
1. Thereafter the said Eighth judicial district court entered an order in said case striking the
complaint from the files, and dismissed the action with prejudice. Thereafter, on the 4th day
of August 1937, the said Marion Wilson took an appeal from said order, but at no time has
said Wilson filed an undertaking on appeal in said case nor deposited in lieu thereof any sum
of money with the clerk of said court, to abide the event of the appeal, as required by law to
perfect said appeal (Comp. Laws, sec. 8893).
On motion of respondent corporation, duly noticed, it is ordered that said appeal be and the
same is hereby dismissed, at the cost of the said Marion Wilson.
2. This is the second appeal taken in substantially the same matter, as appears from the
files of this court and from the opinion in Goldring v. Kelberry et al., 57 Nev. 478, 66 P. (2d)
1013; and, it appearing to the court that this appeal was taken solely for delay and to annoy
and harass the respondent Colonial Building & Loan Association, on motion of said
respondent it is ordered that judgment be entered herein in favor of defendant Colonial
Building & Loan Association, a corporation, and against the said Marion Wilson, in the
sum of $500, as damages.
that judgment be entered herein in favor of defendant Colonial Building & Loan Association,
a corporation, and against the said Marion Wilson, in the sum of $500, as damages.
____________
58 Nev. 156, 156 (1937) Price v. Brimacombe
JACK L. PRICE and MRS. JACK L. PRICE, Appellants, v. DOROTHY D. BRIMACOMBE,
Respondent.
No. 3204
November 5, 1937. 72 P. (2d) 1107.
1. Judgment.
Under statute providing for entry of judgment after failure to answer by any pleading, a motion to strike
portions of the complaint was not a pleading, which would preclude entry of a default judgment, since
pleadings are the parties' formal allegations of their claims and defenses as prescribed by statute (Comp.
Laws, secs. 8792, 8591, 8593).
2. Judgment.
A statute permitting defendant to appear by filing notice of motion in the cause did not preclude entry of
a default judgment for failure to answer, although a motion to strike portions of the complaint had been
filed, since such statute deals only with commencement of actions (Comp. Laws, sec. 8573).
3. Judgment.
Court did not err in basing its judgment on a subsequent default, notwithstanding prior default had not
been vacated when the second default was entered, where the prior default was a nullity, in that it was
entered on a day in which defendants had time to answer due to the fact that the prior day was a nonjudicial
day.
4. Judgment.
Where clerk of court entered prior default on day when time to answer had not expired and subsequently
entered another default, clerk did not act judicially in entering both defaults by his determination that
notice of motion to strike did not constitute an answer, but acted in a ministerial capacity, and hence court
was not authorized to set defaults aside (Comp. Laws. sec. 8792).
A judgment entered on a default could not be set aside, on appeal from an order denying motion to vacate
judgment, on the ground that complaint did not state a cause of action, or that the judgment did not
conform to the prayer.
Supreme court on appeal from order denying a motion to set aside a default judgment was not required to
determine objections of defendants to entry of default, where no such ground appeared in their motion nor
supporting affidavits (Comp. Laws, sec. 8640).
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by Dorothy D. Brimacombe against Jack L. Price and another. From an order
denying a motion to vacate and set aside a default and judgment, the defendants appeal.
Affirmed.
A. A. Hinman, for Appellants:
In Higley v. Pollock, 21 Nev. 198, 208, 27 P. 895, under the old statute, it was held that a
notice of motion to quash summons would not prevent a default. To obviate the harshness of
that decision and to conform to the general rule, the statute was amended in 1907 by adding a
clause defining answer to include any pleading that raises an issue of law or fact, whether
the same be by general or special appearance. Sec. 9792 N. C. L. In Edsen v. May, 36 Nev.
611, 135 P. 1185, the court stated that this amendment may be considered as providing that a
demurrer or pleading raising an issue of law, is, in a general sense, an answer, and if filed
within the time required for answering is sufficient to prevent the entry of a default.
A defendant may appear by answer, demurrer, or notice of motion filed in the cause. Sec.
8573 N. C. L. (proviso).
Thus it appears that prior to the entry of default, defendants had made a general
appearance in the action by their motion to strike, which being in effect a special demurrer,
raised an issue of law and constituted an answer within the meaning of the statute as
amended.
The court alone possessed the power to vacate or set aside either default, and until the
default of February 13 had been so vacated or set aside, another default could not legally
be entered.
13 had been so vacated or set aside, another default could not legally be entered. Sec. 8792 N.
C. L.; Edsen v. May, supra; 3 Ban. Pr. 2378, n. 6.
The clerk acted judicially in entering both defaults by his determination that the notice of
motion to strike did not constitute an answer. The statute does not give him any such
authority. Sec. 8792 N. C. L., Edsen v. May, supra.
The plaintiff was a married woman, living with her husband, who was not joined as a party
to the action, which was based upon alleged breeches of a community contract. When a
married woman is a party, her husband must be joined with her. Sec. 8546 N. C. L.; C. C. P.
sec. 370; 3 Ban. Pl. 2472, n. 3; Warren v. Quill, 8 Nev. 218; Paganini v. Polostrini (Cal.), 146
P. 1046; Jones v. Edwards, 49 Nev. 299, 245 P. 292.
The purported amended judgment exceeded the relief demanded, the court was without
power to amend its judgment, and a money judgment for the respective amounts of the notes
could not be rendered in any event.
Noland & Noland, for Respondent:
The definition of the word answer contained in the amendment of sec. 8792 N. C. L.
does not in any manner change sections 8752 and 8753 N. C. L., which specify how an issue
of law arises and how an issue of fact arises.
Section 8593, which defines pleadings, does not include a motion to strike.
Section 9573 N. C. L. has no bearing upon the question before the court; it pertains to the
manner of commencing an action without the issuance of summons.
The fact that the default of February 15 was entered after the entry of the default of
February 13 and before the latter had been vacated or set aside is immaterial, as the default of
February 13 was a nullity, and was vacated on motion of plaintiff before application for
judgment based upon the default of February 15 was made.
The clerk did not act judicially in entering the defaults. It was his ministerial duty to enter
whatever default was demanded by plaintiff when there was no answer on file.
The assignments that the complaint does not stake a cause of action and that the court
modified the judgment so that it does not conform to the prayer of the complaint, are directed
wholly to the judgment itself, which cannot be reviewed on this appeal, there being no appeal
from the judgment. Paul v. Armstrong, 1 Nev. 82; Martin v. District Court, 13 Nev. 85.
Appellant's motion to vacate the judgment and open the default could only prevail under the
provisions of section 8640 N. C. L., on the grounds of mistake, inadvertence, surprise, or
excusable neglect. None of these grounds are set forth in the notice of motion or supporting
affidavits. State v. District Court, 16 Nev. 371; 3 Ban. Prac. sec. 1825; Seachman v. Cage, 50
Cal. App. 241, 194 P. 750; Victor Power & Mining Co. v. Cole, 105 P. 758.
OPINION
This action is before us on appeal from an order denying a motion for an order vacating
and setting aside a default and judgment. The complaint is on a contract for the recovery of
damages. The parties will be referred to as plaintiff and defendants.
Summons in the action was personally served on the 2d day of February 1937, in the
county where it was instituted. On the 10th day of that month, defendants filed and served a
notice of motion to strike portions of the complaint. On the 13th day of that month, the clerk
of the lower court entered the default of the defendants. On the 15th day of said February, the
default of the 13th not having been vacated or set aside, said clerk filed the praecipe for their
default, which was entered by him on that day. After the entry of the last default and on the
same day, plaintiff appeared before the court with her attorney upon her application for
the presentation of evidence and for judgment, and moved the court for an order vacating
the first default, which motion was granted, and a continuance of the application for the
presentation of evidence and judgment was had until February 19, 1937.
default and on the same day, plaintiff appeared before the court with her attorney upon her
application for the presentation of evidence and for judgment, and moved the court for an
order vacating the first default, which motion was granted, and a continuance of the
application for the presentation of evidence and judgment was had until February 19, 1937.
At that time the parties appeared with their attorneys and defendants' attorney objected to the
hearing or the admission of any evidence on the application for judgment. Upon objection to
defendants being heard on account of being in default, and therefore having no standing in
court, the court permitted their attorney to proceed as a friend of the court, who requested the
court to vacate said default of February 15 of its own motion, upon the following grounds:
1. That the defendants' notice to strike constituted an answer and precluded a default.
2. That the clerk in entering default at that time acted judicially in determining whether or
not the notice of motion constituted an answer.
The matter was submitted upon the single question of whether the notice of motion
constituted an answer, and plaintiff was permitted to offer her evidence, subject to the
decision upon that question.
The court, on the 24th day of February 1937, denied defendants' objection and request
upon the ground that the notice of motion to strike did not constitute an answer within the
meaning of section 8792 N. C. L., because it did not raise an issue of law or fact. Judgment
was rendered by the court that plaintiff recover from the defendants the sum of $679.19, with
interest and costs. The motion to vacate and set aside the default and judgment was denied by
the court on March 18, 1937.
Defendants contend that the court erred in denying the same, because their motion to strike
portions of the complaint was an answer filed within time to preclude a default. Section 8792
N. C. L., provides, in part: "Judgment may be had, if the defendant failed to answer the
complaint, as follows: 1.
Judgment may be had, if the defendant failed to answer the complaint, as follows: 1. In an
action arising upon contract for the recovery of money or damages only, if no answer has
been filed with the clerk of the court within the time specified in the summons, or such
further time as may have been granted, the clerk upon application of the plaintiff, shall enter
the default of the defendant, and immediately thereafter enter judgment for the amount
specified in the complaint. * * *
2. In other actions, if no answer has been filed with the clerk of the court within the time
specified in the summons, or such other time as may have been granted, the clerk shall enter
the default of the defendant; and thereafter the plaintiff may apply at the first, or any
subsequent term of the court, for the relief demanded in the complaint. * * *
3. * * * The word Answer,' used in this section, shall be construed to include any
pleading that raises an issue of law or fact, whether the same be by general or special
appearance.
The case of Higley v. Pollock, 21 Nev. 198, 27 P. 895, is squarely against defendants'
contention. In that case no pleading was filed before the time for answering expired, but a
notice of motion to quash summons was interposed. The court held that the notice of motion
did not deprive the clerk of the court of the power to enter the default when the time for
answering had expired. The decision was rendered in 1891, when the statute providing the
mode for taking defaults contained no definition of an answer, as set out above, which was
incorporated in the statute in 1907.
Defendants insist that the amendment was intended to relieve the harshness of the ruling in
Higley v. Pollock, and that his motion to strike is a pleading that raises an issue of law within
the meaning of the definition.
1. We do not think so. The motion to strike is not a pleading. The pleadings are the formal
allegations by the parties, of their respective claims and defenses, and are such as are
prescribed in the civil practice act, to wit: The complaint; the demurrer to the answer; the
reply; the demurrer to the cross-complaint; the demurrer to the complaint; the answer,
the demurrer to the reply; the cross-complaint; the demurrer to the answer to the
cross-complaint.
are such as are prescribed in the civil practice act, to wit: The complaint; the demurrer to the
answer; the reply; the demurrer to the cross-complaint; the demurrer to the complaint; the
answer, the demurrer to the reply; the cross-complaint; the demurrer to the answer to the
cross-complaint. Sections 8591 and 8593 N. C. L.
The amendment of section 8792 N. C. L., by an act of the legislature approved February
19, 1937, by which the words or proceeding were incorporated in subdivision 3 of said
section, was not effective when the time for answering expired. Stats. 1937, pp. 27, 28, c. 13.
2. Defendants refer to section 8573 N. C. L., which provides, in part, that a defendant may
appear by notice of motion filed in the cause. The provision deals with the commencement of
an action, and has no bearing on the question. Authorities from other jurisdictions cited by
defendants, holding that a motion to strike is in effect a special demurrer, are not helpful. Our
statute, prior to the amendment of 1937, deals with a pleading raising an issue of law or fact,
and not with motions. Similarly the case of Sanders v. Milford Auto Co., 62 Utah 110, 218 P.
126, is not in point. In Utah, by statute, a motion aptly filed will prevent a default.
3. The next assignment is that the court erred in basing its judgment upon the default of
February 15 because that of February 13 had not been vacated when the second default was
entered. There was no error on that account. The default of February 13 was a nullity. The
12th of February being a nonjudicial day, defendants had all of the following day in which to
answer. Being a nullity, the fact that it was not vacated when a proper default was entered is
of no consequence.
4. Under the third assignment it is urged that the clerk acted judicially in entering both
defaults by his determination that the notice of motion to strike did not constitute an answer.
The contention is without merit. The clerk acted in a mere ministerial capacity in entering the
defaults. Whatever his opinion may have been as to the character of the motion, the fact
remains that it did not deprive him of the power to enter a default.
it did not deprive him of the power to enter a default. The statute authorized his action.
5. There are several other assignments of error, including the objections that the complaint
does not state a cause of action, and that the court modified the judgment respecting two
promissory notes mentioned in the complaint, so that it does not conform to the prayer, which
we have considered and find to be without merit. If defendants had not suffered a default they
could have contested these claims in the trial court and on appeal from the judgment. They
furnish no ground for setting it aside on this appeal. Gillespie v. Fender, 180 Cal. 202, 180 P.
332; 1 Freeman on Judgments (5th ed.), sec. 222.
6. We need not determine whether defendants could have availed themselves of these
latter objections to set aside the default and judgment on the ground of mistake, inadvertence,
surprise, or excusable neglect under section 8640 N. C. L. No such ground appears in their
motion or supporting affidavits.
The order appealed from is affirmed.
February 2, 1938. 75 P. (2d) 734.
A. A. Hinman, for Appellants.
Noland & Noland, for Respondent.
Rehearing denied.
OPINION
It is stated in a petition for rehearing of great length that the court, acting upon mistakes of
fact, reached erroneous conclusions. We have patiently considered the mass of material
mustered in support of these statements, and find it unconvincing.
The petition should be denied.
It is so ordered.
____________
58 Nev. 164, 164 (1937) Washoe County Water Conservation Dist. v. Press Brick Co.
In the Matter of the Application of RENO PRESS BRICK COMPANY, A Corporation, to
Exclude Lands from WASHOE COUNTY WATER CONSERVATION DISTRICT.
WASHOE COUNTY WATER CONSERVATION DISTRICT, An Irrigation District,
Appellant, v. RENO PRESS BRICK COMPANY, A Corporation, Respondent.
No. 3194
November 5, 1937. 73 P. (2d) 503.
1. Waters and Water Courses.
Property owner which sought to have certain of its lands excluded from irrigation district had burden of
proving by fair preponderance of the evidence that proposed stream storage project of district would not
benefit its property (Comp. Laws, sec. 8059, as amended by Stats. 1933, c. 186, sec. 8)
Refusal to permit exclusion of certain lands from irrigation district did not operate to compel property
owner to irrigate the lands, but left it free to exercise the right as it chose, with power to rent or otherwise
dispose of the lands (Comp. Laws, sec. 8008; sec. 8010, as amended by Stats. 1931, c. 163; sec. 8059, as
amended by Stats. 1933, c. 186, sec. 8).
Under statute, brick company which owned property which it did not contemplate using as a source of
clay for brick for 10 or 12 years to come, but which would be directly benefited at small expense by
proposed stream storage project by reason of enhanced value of property for agricultural purposes from
which it could profit by renting, was not entitled to have such property excluded from irrigation district,
notwithstanding that its charter did not authorize it to engage in irrigation or agricultural pursuits, although
such refusal to permit exclusion was without prejudice to maintain subsequent proceeding for exclusion
under changed conditions (Comp. Laws, sec. 8008; sec. 8010, as amended by Stats. 1931, c. 163; sec.
8059, as amended by Stats. 1933, c. 186, sec. 8; Stats. 1935, c. 17).
On appeal from a judgment granting an application for the exclusion of certain lands from an irrigation
district, supreme court was required to view situation as it existed at time application was filed and at time
of trial (Comp. Laws, sec. 8059, as amended by Stats. 1933, c. 186, sec. 8).
Appeal from Second Judicial District Court, Washoe County; Thos. F. Moran, Judge.
Proceeding in the matter of the application of the Reno Press Brick Company to exclude
certain lands from the Washoe County Water Conservation District, an irrigation district.
Judgment granting the application, and the irrigation district appeals. Reversed.
Price & Merrill, for Appellant.
Under section 8059 N. C. L., as amended, under which this proceeding is brought, if the
land itself would be benefited, the mere fact that the owner is in no present position or has no
present desire to utilize the benefit makes no difference, and the land would not be entitled to
exclusion. Truckee-Carson Irr. District v. McLean, 49 Nev. 278, 245 P. 285; Texas & P. Ry.
Co. v. Ward Co. Irr. Dist., 112 Tex. 593, 251 S. W. 212.
In this respect it is well settled that the question of benefits is to be determined with
reference to the land in its natural state, and not with reference to the use then being made of
such land. (Citing authorities as noted in the opinion.)
If we consider the land, as we must, in its present condition and in the light of existing
circumstances, it is not now either industrial or residential, but agricultural. It has been used
solely for agricultural purposes for the past twenty or twenty-one years (with the exception of
about three or four); it is now being used solely for agricultural purposes; and it can profitably
be used for agricultural purposes in the future, should it remain within the district. And it will
not be used either for industrial or residential purposes until the demand for brick or for
housing has increased to an extent justifying such use. No one can say just when or how that
justification will come.
The respondent, being the petitioner herein, has the burden of proof, and must show by a
clear preponderance of the evidence that the lands cannot practicably be irrigated and that
the cost of such irrigation would be exorbitant.
be irrigated and that the cost of such irrigation would be exorbitant.
George Springmeyer, Sallie R. Springmeyer and Bruce R. Thompson, for Respondent.
Under the Nevada law an indirect benefit to land is not sufficient to justify a refusal to
exclude the land from an irrigation district; it must be a direct benefit. Springmeyer L. D. &
L. S. Co. v. Irr. Dist., etc., 50 Nev. 80, 251 P. 351.
Under the facts found by the court and established by the evidence, the land herein
involved cannot be directly benefited by the Washoe County Water Conservation District or
by any improvement it might make. Respondent has made no attempt to hide the fact that Mr.
Gardella, a neighboring landowner, had been grazing cows upon the tract in question.
Respondent permitted Gardella to do this, rent free, as a neighborly gesture. But in
considering whether the land itself can be benefited, the land should be considered with all of
its appurtenances. In this particular case the land does not have the necessary appurtenances
to give it character as agricultural land, and the acquisition of the necessary appurtenances is
impracticable. Gardella, while grazing the land, was using his own water, brought to the land
through his own ditch. On the other hand, the land in question does have all necessary
appurtenances as industrial land, and is industrial land, being held in reserve for brick-making
purposes, and may be so used at any time.
OPINION
Respondent corporation is the owner of 33 acres of land included within the boundaries of
appellant irrigation district. Acting under the provisions of section 44 of the irrigation
district act {section S059 N. C. L.
of the irrigation district act (section 8059 N. C. L. 1929), as amended, Statutes of Nevada
1933, pp. 278, 279, c. 186, sec. 8, respondent, on April 30, 1936, applied in writing to
appellant's board of directors for the exclusion from the district of said piece of land. After
considering the application, the board of directors of the irrigation district, on July 9, 1936,
rejected respondent's application in whole. Thereafter, respondent petitioned the district court
to set aside said order of appellant's board of directors, and to direct that said land be
excluded from the district. The matter was later tried, and, in December 1936, the district
court granted respondent's application, and adjudged that said land be excluded from the
irrigation district. This appeal is taken from said judgment, and from an order of said district
court denying a motion for a new trial.
The portion of said section 44 of the irrigation district act with which we are primarily
concerned, reads as follows: The board of directors of any district now or hereafter formed
under the provisions of this act, either upon its own initiative or upon the application in
writing of any holder of title or of evidence of title to land in the district, may, by a majority
vote, exclude from the district any land or lands theretofore included in the district, and
change the boundary lines of the district so as to exclude or leave out certain tracts or portions
of tracts when the proposed system or systems of irrigation cannot practically include such
land or lands, or when such land or lands would not be benefited by the district or by any
improvement it might make. Respondent's application for exclusion of its land was and is
based upon the contention that said land would not be benefited by certain improvements
contemplated by the district.
The tract of land sought to be excluded from the irrigation district adjoins the city of Reno
on the north. No part of it is within the city limits, but its southern boundary line is identical
along its whole length with a portion of the northern boundary line of the city of Reno.
portion of the northern boundary line of the city of Reno. The land has been irrigated for the
past twenty or twenty-one years. For the first five or six years, two crops of alfalfa were
grown upon it annually. After that, it was allowed to go to pasture. With an ample supply of
water, it will produce good pasturage crops.
This land was deeded, on April 30, 1932, to J. L. Raffetto and wife to Parker Brick
Company. The deed contained the following provisions relating to water, reservoir, and ditch
rights: Together also with six miner's inches of water for the use of the party of the second
part, said water to be taken out of the reservoir hereinafter referred to, the party of the second
part to pay its proportion of all necessary expense incurred in maintaining the said reservoir
and the irrigating ditch leading thereto, as well also, its proportion of the charges and expense
incurred in the delivery of the water flowing and to flow in said ditch to said reservoir from
the Highland Ditch, but the parties of the first part are in nowise to be held responsible to the
party of the second part for the delivery of said six inches of water, or any part thereof, should
there at any time be a shortage of water in said reservoir. Excepting and reserving from said
parcel of land that portion thereof used by the parties of the first part for reservoir purposes
and containing approximately two acres of land. The parties of the first part herein reserve
the right of way along the north line fence of the property herein conveyed for the perpetual
maintenance of a ditch of sufficient width and depth to carry fifty inches of water, with
sufficient ground on both sides of said ditch to enable the parties of the first part to properly
clean and care for said ditch.
The name of Parker Brick Company was later changed to the Nevada Brick & Tile
Company, Inc. On March 25, 1935, the Nevada Brick & Tile Company, Inc., deeded the land
involved in this case to respondent. This conveyance contained the following paragraph:
Together with all the appurtenances thereunto belonging or in anywise appertaining,
including all water rights consisting of six {6) miner inches of water only and ditch rights
belonging to or used in connection with the irrigation or cultivation of said land, so far as
applicable only to the said six {6) miner inches of water, and together with the buildings
thereon and all machinery affixed to said premises; it being understood that the party of
the second part will share in the expense of maintaining all ditch and ditch rights so far as
applicable to said six {6) miner inches of water."
with all the appurtenances thereunto belonging or in anywise appertaining, including all water
rights consisting of six (6) miner inches of water only and ditch rights belonging to or used in
connection with the irrigation or cultivation of said land, so far as applicable only to the said
six (6) miner inches of water, and together with the buildings thereon and all machinery
affixed to said premises; it being understood that the party of the second part will share in the
expense of maintaining all ditch and ditch rights so far as applicable to said six (6) miner
inches of water.
During the three or four years that Parker Brick Company owned this property, it was used
for the manufacture of brick, and to that extent the statement heretofore made, that this land
has been irrigated for some twenty-one years, must be qualified. The buildings and machinery
which had been used by Parker Brick Company in the manufacture of brick on said premises
were of small value at the time the property was purchased by respondent. The premises have
not been used for brick making at any time since respondent has owned them.
Mr. J. L. Raffetto paid respondent $75 for the use of the land in 1935; the premises being
used by Mr. Raffetto for pasturage and the water for its irrigation supplied by him. In 1936,
respondent allowed Davey Gardella, a neighboring farmer, to use the land for pasturage,
without paying any rent therefor. Mr. Gardella also furnished the water for irrigation, as
respondent's water right, as we have seen, is limited to six miner's inches.
Washoe County Water Conservation District was organized in June 1929. Its manager,
Thomas R. King, testified, as follows, in the district court:
Q. Are you familiar with the planning of the District for the conservation of water and its
application to lands in the District? A. Yes, I am.
Q. State briefly what those plans are? A. The plans propose to settle by compromise
instead of litigation the differences in opinion as to water rights belonging to the various
water users of the Truckee River and also to construct the reservoir on the Little Truckee
River which will impound flood waters and other waters, and release these waters for the
benefit of members of the Irrigation District and of the Power Company, and of the
Truckee Canal Irrigation District at times when the natural flow of the water of the
Truckee River is insufficient to provide an adequate amount of irrigation water and to
charge the members of the District for the water supplied them through this construction
in proportion to the benefits the various parcels of land will receive.
propose to settle by compromise instead of litigation the differences in opinion as to water
rights belonging to the various water users of the Truckee River and also to construct the
reservoir on the Little Truckee River which will impound flood waters and other waters, and
release these waters for the benefit of members of the Irrigation District and of the Power
Company, and of the Truckee Canal Irrigation District at times when the natural flow of the
water of the Truckee River is insufficient to provide an adequate amount of irrigation water
and to charge the members of the District for the water supplied them through this
construction in proportion to the benefits the various parcels of land will receive.
Q. Has that plan progressed so far that an agreement has been entered into with the
Government of the United States for the carrying out of the plan? A. No, the agreement has
not been entered into. However, an agreement has been drawn which has been approved by
the United States, the Conservation District and the Truckee Canal Irrigation District and the
Sierra Pacific Power Company, and as I understand, a requisite number of owners, as
individuals within the boundaries of the Irrigation District, and in other words, it is now ready
for execution.
Q. Does the plan contemplate the furnishing of water to anyone except those who are
within the District and contribute toward the cost of the upstream storage? A. It does
notand further the Nevada Statutes and the Irrigation District Act would prevent any such
granting of water or benefits.
Without water the land in controversy would be valueless for agricultural purposes. With
an adequate water right it would be worth from $125 to $150 per acre for agricultural
purposes. With the exception of about three and one-half acres, the land is susceptible of
irrigation by gravity. Mr. Raffetto offered respondent $100 for the use of the property in
1936, he to furnish the water; and Mr. Ernest Capurro, a farmer who has been familiar with
this property for many years, told the president of respondent corporation that he thought
the use of the land was worth $100 or $110 per year.
has been familiar with this property for many years, told the president of respondent
corporation that he thought the use of the land was worth $100 or $110 per year.
It is estimated that this property would be worth about $400 an acre if subdivided for
residential purposes. The amount paid by respondent when it purchased the property
(including the old plant) was $15,000. The testimony of William I. Smyth, associate professor
of metallurgy in the Mackay School of Mines and chemist of the State Analogical Laboratory,
based on samples taken from various places on the premises, shows clearly that the clay
content makes this property suitable for brick making. Mr. Albert J. Caton, president of
respondent company, values the land for brickmaking purposes at $500 an acre. He testified
that when this property was offered for sale to respondent company, it was checked over for
the purpose of using the ground for its clay content, or any other use it might be put to. We
acquired the ground for the purpose of making brick, but not the plant. The plant was
practically worthless at that time and had not great monetary value. Some of the machinery
has a small value, not a great value. Respondent company is engaged in the business of
manufacturing clay products and retailing fuel oil. It is not, and never was, engaged in
irrigation or farming; nor does its charter authorize it to engage in such pursuits.
Respondent purchased the six miner's inches water right for the purpose of use in the
manufacture of brick. The reservoir is situated in the lowest part of the land, and can be made
use of by respondent only by means of pumping. For adequate irrigation, respondent's said
33-acre tract would require a water right of about 20 miner's inches.
The tract of land sought to be excluded from the district is but one of a considerable
number owned by respondent. It has from time to time purchases other pieces of land,
suitable for the manufacture of clay products, in various locations within a few miles of
Reno.
pieces of land, suitable for the manufacture of clay products, in various locations within a few
miles of Reno. The last two of such purchases made prior to the time of the trial were smaller
tracts, for which $900 an acre was paid. The supply of material at the location where
respondent company is now engaged in manufacturing clay products will last probably from
10 to 12 years. It is a higher quality of material than that contained in said 33-acre tract,
which is suitable only for making common brick. When asked whether respondent company
intended to make any use of the 33-acre tract within the next 10 or 12 years, Mr. Caton
testified: We probably will have to use some of the clay as it is required. We may even use it
before then.
The only present source of water with which to irrigate respondent's 33-acre tract is what
is known as the Highland ditch, which is approximately 3,000 feet from said land. A right of
way for a lateral ditch would have to be purchased through at least one farm, and the ditch
would have to be run under two public highways. The Highway Department requires a
concrete abutment at each end of an underpass. Mr. C. V. Taylor, a qualified engineer of 36
years' experience, testified, in part, as follows:
Q. Considering all the expenses, not counting the cost of the right of way, but including
the pipes and abutments under the streets, what do you say the minimum expenses would be?
A. I believe it would cost close to $800.00.
Q. Do you know anything about the value of rights of way in that vicinity, such as would
be required for this ditch? A. In other places as near to the town, or anywhere near the town
that is on the main highways it would be at least $300.00 an acre, maybe $400.00 or $500.00.
It is whatever they ask. I don't know.
Mr. Caton testified, with reference to the cost of constructing a lateral ditch and bulkheads,
that he doubted whether, leaving out of consideration the right of way which would have to
be obtained, the ditch could be built and put under both highways for less than $1,500.
which would have to be obtained, the ditch could be built and put under both highways for
less than $1,500. In addition to the foregoing, the carrying charge in the Highland ditch,
which would have to be paid by respondent company, is approximately $7.50 per miner's inch
annually.
Mr. Raffetto testified that for $150 he would be willing to give respondent the right to
carry water through his ditch, provided respondent would pay its share of maintaining and
cleaning the ditch any division boxes that might be necessary. He further testified that an
ample supply of water for respondent's 33-acre tract could be obtained through his ditch from
the Highland ditch. With reference to this offer, Mr. Raffetto further testified on
cross-examination, as follows:
Q. I understood you to say $150.00 was to be a yearly payment to you for a half interest in
your ditch? A. No, that would be a protection right in the ditch.
Q. Do you mean to say you would sell the use of a half interest in that ditch for $150.00?
A. Yes.
Q. And you only know it would take about a week's work and a team of horses to dig the
ditch in Mr. Herman's place? A. I spoke of three men.
Q. And based upon that you would sell a half interest in your ditch for $150.00. A. I
would not sell it, but I would give him the right of way there.
Q. How long is this offer of $150.00 good? A. It may carry for a good long time.
Q. You are very much interested in having this ground included within the district, are
you not? * * * A. Yes, I would like to see it irrigated. The reason may be that the land has
always been used for pasturage purposes and I don't think it has any value whatever so far as
city property is concerned, only five or six hundred feet, probably extending back three
hundred feet could be used for city property. The rest of it is useless so far as city property is
concerned.
Q. You also would like to see it irrigated to get waste water into your land, would you
not? A. Yes, I was going to add that.
waste water into your land, would you not? A. Yes, I was going to add that.
Q. And you have a selfish purpose in that, have you not? A. Yes.
Mr. Raffetto testified that he thought a lateral ditch from the Highland ditch to
respondent's 33-acre tract, including concrete abutments at the ends of the underpasses
beneath the two public highways, could be constructed for less than $1,500, and that he
would like to have the job for that amount. He admitted, however, that he did not know how
much abutments would cost, and could not state for how much less than $1,500 he would be
willing to do the work.
In February 1935 the legislature passed an act authorizing and empowering the board of
county commissioners of Washoe County to bond said county in the amount of $500,000 to
aid in the construction of the works and improvements for upstream storage of waters of the
Truckee river system, hereinbefore mentioned. For the purpose of creating a fund for the
payment and redemption of said bonds, the county commissioners were directed by said act to
levy and collect an annual ad valorem tax on all taxable property within Washoe County.
Statutes of Nevada 1935, chap. 17, pp. 22-24.
In his testimony, on cross-examination, Mr. Caton gave it as his opinion that the upstream
storage project would be a great benefit; that presumably greater crops would result in better
conditions to Reno; that if the crops would not cost too much to produce, farmers would
undoubtedly have more money to pay the merchants for supplies; that taking it all together,
the result of the upstream storage and the adequate supply of water for the ranchers would no
doubt make conditions better generally throughout the district and the community; that he
himself had worked in favor of the upstream storage and was still ready to work for it; that if
conditions should be improved as expected, the value of the majority of lands in the vicinity
of the city of Reno would increase, though he could not say that the value of all such lands
would be increased, but that if the cost of upstream storage becomes prohibitive from the
stock raising end, the project will be detrimental to the community.
of Reno would increase, though he could not say that the value of all such lands would be
increased, but that if the cost of upstream storage becomes prohibitive from the stock raising
end, the project will be detrimental to the community.
1. There is no substantial conflict in the testimony in this case. The question we have to
determine is the interpretation to be put on the word benefited as applied to the undisputed
facts disclosed by the testimony. Upon respondent rests the burden of proving by a fair
preponderance of evidence that the Truckee River upstream storage project will not benefit its
33-acre tract of land.
Appellant contends that this court should follow the decisions of courts of other states in
holding that the benefit to the land, as contemplated by said amended section 44 of the
irrigation district act, may be indirect as well as direct. Appellant further contends, however,
that the evidence in this case shows that respondent's said land will be directly benefited by
the upstream storage project. The authorities chiefly relied upon by appellant are the
following: Board of Directors of Modesto Irrigation District v. Tregea, 88 Cal. 334, 26 P.
237; Los Angeles County Flood Control District v. Hamilton, 177 Cal. 119, 169 P. 1028;
Oregon Short Line R. Co. v. Pioneer Irrigation Dist., 16 Idaho 578, 102 P. 904; Otis Orchards
Co. v. Otis Orchards Irr. Dist. No. 1 et al., 124 Wash. 510, 215 P. 23; Bleakley v. Priest
Rapids Irr. Dist., 168 Wash. 267, 11 P. (2d) 597; Texas & P. Ry. Co. v. Ward County Irr.
Dist. No. 1, 112 Tex. 593, 251 S. W. 212; Western Union Tel. Co. v. Wichita County W. I.
Dist. No.1 (Tex. Civ. App.) 19 S. W. (2d) 186; Miller & Lux, Inc. v. Sacramento & San
Joaquin Drainage District, 256 U. S. 129, 41 S. Ct. 404, 65 L. Ed. 859; McLean v.
Truckee-Carson Irr. Dist., 49 Nev. 278, 245 P. 285.
Respondent takes the position that, in Nevada, land within an irrigation district should be
excluded therefrom on application of the owner when such land will not be directly
benefited by the district or by any improvement it might make.
be directly benefited by the district or by any improvement it might make. In the instant case,
respondent insists that the Truckee river upstream storage project will not directly benefit
respondent's said 33-acre tract of land, or any part or portion thereof. Respondent calls
attention to section 1, and sections 3 and 44 of the irrigation district act, as amended (N. C. L.
1929, sec. 8008); section 8010 [as amended by Stats. 1931, c. 163]; section 8059 [as amended
by Stats. 1933, c. 186, sec. 8]), but places its main reliance upon the case of Springmeyer v.
Irrigation District, 50 Nev. 80, 251 P. 351.
We have carefully considered all the authorities cited by respective counsel, and, in
addition thereto, have examined the following cases: Harelson v. South San Joaquin Irr. Dist.,
20 Cal. App. 324, 128 P. 1010; J & W. C. Shull v. Merced Irr. Dist., 90 Cal. App. 270, 265 P.
965; Hand et al. v. El Dorado Irr. Dist., 97 Cal. App. 740, 276 P. 137; Rathfon v.
Payette-Oregon Slope Irr. Dist., 76 Or. 606, 149 P. 1044; Hamilton v. Rudeen, 112 Or. 268,
224 P. 92; In re Central Pac. Ry. Co., 144 Or. 527, 25 P. (2d) 927; Northern Pac. Ry. Co. v.
Walla Walla County, 116 Wash. 684, 200 P. 585; In re Extension of Boundaries of Crow
Creek Irr. Dist., 63 Mont. 293, 207 P. 121; Knowles v. New Sweden Irr. Dist., 16 Idaho 217,
101 P. 81; Id., 16 Idaho 235, 101 P. 87.
2, 3. We find it unnecessary to decide whether, in Nevada, an indirect benefit to land,
within the meaning of amended section 44 of the irrigation district act, may be sufficient to
justify a refusal to exclude such land from an irrigation district, because the uncontradicted
evidence satisfies us that respondent has not met the burden imposed upon it by the statute to
show that its said land will not be directly benefited by the Truckee river upstream storage
project. We shall proceed to set forth some of the reasons which have influenced us in
reaching this conclusion.
The land is not now being used for the manufacture of clay products, and will probably not
be so used for at least ten or twelve years, because the supply of superior clay where
respondent company is now manufacturing its product will, it is estimated, last that long,
and respondent has other clay deposits superior in quality to that in its said 33-acre tract.
at least ten or twelve years, because the supply of superior clay where respondent company is
now manufacturing its product will, it is estimated, last that long, and respondent has other
clay deposits superior in quality to that in its said 33-acre tract.
It will not be necessary for respondent to go to any considerable expense in irrigating this
land, because a neighboring farmer has offered to allow respondent to carry water through his
ditch for a very small consideration. Respondent claims that this offer is indefinite and
uncertain, and one that could not be relied on in the event of disputes arising; further, that the
offer may be revoked at any time. We think, however, that Mr. Raffetto's offer is sufficiently
definite and certain to insure respondent's having an inexpensive right of way to carry water
from the Highland ditch to its land; and the likelihood of the offer's being revoked does not
appear to be imminent, because Mr. Raffetto hopes to receive waste water from respondent's
tract. If, in order to take advantage of Mr. Raffetto's offer, respondent would be required to go
to large expense, a different question would be present; but respondent's greatest expense,
aside from paying Mr. Raffetto for a right of way through his ditch, will be the $7.50 to be
paid the district annually for the use of each miner's inch of water from the Highland ditch.
No testimony had been offered showing or tending to show that the clay content of
respondent's said 33-acre tract will be in any way injured or damaged by irrigation.
The undisputed testimony shows not only that this land is susceptible of irrigation, but that
it has actually been irrigated for the greater part of the last 20 or 21 years.
If the land were not susceptible of any use for agriculture, as was alleged to be the case in
Northern Pac. Ry. Co. v. Walla Walla County, 116 Wash. 684, 200 P. 585; if, as appeared in
the case of In re Central Pac.
Ry. Co., 144 Or. 527, 25 P. (2d) 927, irrigation would constitute a detriment to the clay
content of the land; or if the land were now being used for the manufacture of clay products,
or definite plans were now being made to use it for that purpose within a reasonably short
time, we might well have decided to affirm the judgment of the district court.
It does not result from the refusal to allow respondent's 33-acre tract to be excluded from
the district that respondent must irrigate the land. It need not exercise that right unless it so
chooses, and, so far as the court can see, respondent may rent or otherwise dispose of it.
The fact that his land is more valuable to respondent company for brickmaking purposes
than for any other purpose, does not alter the fact that it is valuable for agricultural purposes,
and that it will be directly benefited for agricultural purposes by the upstream storage project.
The court is of opinion that it would not be justified in holding that the tract of land in
controversy should be excluded from the district simply because respondent's charter does not
authorize it to engage in irrigation or agricultural pursuits.
4. The court is not to be understood as holding that respondent may not at some future
time be entitled to have this land excluded from the district; but viewing the situation, as we
must, as it existed at the time of the filing of respondent's application and at the time of the
trial in the district court, it is the court's opinion that, under the law, respondent is not entitled
at this time to have said tract excluded from appellant conservation district. We find nothing
in the law which would prevent respondent's filing another application for exclusion of this
land from the district at a time when conditions may be different from those shown by the
evidence to exist in this case.
The judgment and order appealed from are reversed.
____________
58 Nev. 179, 179 (1937) Fleming v. Fleming
WALLACE FLEMING, Appellant, v. JANE COOPER FLEMING, Respondent.
No. 3199
November 5, 1937. 72 P. (2d) 1110.
1. Divorce.
After entry of divorce decree, the suit remains pending for some purposes, including modifications as to
custody of minor children (Comp. Laws, secs. 9462, 9464, 9465).
2. Divorce.
Where the welfare of a minor child is involved, trial court has continuing jurisdiction under certain
conditions to modify decree of divorce (Comp. Laws, secs. 9462, 9464, 7465).
3. Divorce.
Though relation of husband and wife does not exist after entry of divorce decree, court is not deprived of
jurisdiction to modify decree as to custody of children and in other particulars (Comp. Laws, secs. 9462,
9464, 9465).
4. Divorce.
Under statutes giving power to court in divorce proceeding to change custody of children, court on
application of wife, filed after decree of divorce, had authority to give wife custody of child as against
contention that after decree of divorce suit was no longer pending so as to empower court to change child's
custody (Comp. Laws, secs. 9462, 9464, 9465).
5. Divorce.
On petition for modification of divorce decree as to custody of children, trial court under certain
conditions can lawfully require former husband to pay reasonable sums for suit money and attorney's fees
to former wife (Comp. Laws, secs. 9462, 9464, 9465).
6. Divorce.
On motion of divorced wife for exclusive custody of minor child, where it was not shown that she was in
such necessitous circumstances as to require allowance for suit money and attorney's fees, and no
application was entered for such expenses, and there was no showing that minor child's welfare would be
adversely affected if proposed allowance were not made, order granting suit money and attorney's fees for
such expenses incurred in the past was improper (Comp. Laws, secs. 9462, 9464, 9465).
7. Divorce.
Generally, wife's necessity is a prerequisite to allowances of suit money or attorneys' fees (Comp. Laws.
secs, 9462, 9464, 9465).
8. Divorce.
Generally, suit money and attorneys' fees will be allowed only for expenses to be incurred and attorneys'
services to be performed in the future, and not for those incurred and performed in the
past {Comp.
performed in the future, and not for those incurred and performed in the past (Comp. Laws, secs. 9462,
9464, 9465).
9. Divorce.
Ordinarily, in divorce cases allowances of suit money and attorneys' fees will be made only upon
application.
Suit by Jane Cooper Fleming against Wallace Fleming, wherein plaintiff was granted a
decree of divorce and custody of a minor child subject to further orders of the court. From an
order made on motion to strike certain parts of order granting plaintiff's exclusive custody of
the child, the defendant appeals. Reversed.
Platt & Sinai, for Appellant:
Section 9465 N. C. L. clearly provides that before a court is empowered to order a
defendant husband to pay suit money or maintenance money or attorneys' fees, there must be
a suit for divorce pending. The statute also clearly provides that even though there be a suit
for divorce pending, before a court or judge may make an order for the payment of such
allowances there must be an application made by the wife, of which due notice shall have
been given to the husband or his attorney, Lake v. Lake, 16 Nev. 364.
In the action at bar, no action for divorce was pending, and no application was filed and no
notice was given. The divorce suit between the parties has been definitely and finally
determined, the court having made and entered a decree of divorce, the time for appeal having
long since passed, and the decree being absolutely final. Lake v. Lake, supra.
It has been definitely determined by the supreme court of this state that before an order
may properly be made requiring the husband to pay court costs, suit money and attorneys'
fees, the wife's necessities must be established. Effinger v. Effinger, 48 Nev. 205, 228 P.
615; Black v. Black, 47 Nev. 346, 221 P. 239.
The plaintiff employed counsel, prosecuted her motion to a finality, and secured an order
of court favorable to her, without any financial assistance from the defendant or without any
application for such financial assistance. It was upon such a showing that the motion for
attorneys' fees was denied by the supreme court of Montana in Albrecht v. Albrecht, 83 Mont.
37, 269 P. 158.
In the original motion in the case at bar the only relief applied for was with respect to the
custody of the child. The defendant was not called upon to resist or defend any claim by way
of suit money, expenses or attorneys' fees. Mitchell v. Mitchell, 28 Nev. 110, 79 P. 50.
Thatcher & Woodburn, for Respondent:
In a divorce suit the action is pending as long as the court has any control over the status of
the minor children and until such time as said children reach the age of majority. Gifford v.
Gifford (Ida.), 297 P. 1100; Ott v. Ott (Cal.), 15 P. (2d) 897; Lamborn v. Lamborn (Cal.), 214
P. 862; Spratt v. Spratt (Minn.), 187 N. W. 227; Smith v. Smith (Mo.), 132 S. W. 312;
Kaplun v. Kaplun (Mo.), 227 S. W. 894; Chambers v. Chambers (Neb.), 106 N. W. 993;
Tinker v. Tinker (Okla.), 290 P. 187; Czarra v. Czarra (Ill.), 128 Ill. App. 430.
It will be observed from the foregoing authorities that the courts generally entertain the
view, likewise, that where the court has a continuing jurisdiction to modify the decree, the
wife should be allowed reasonable expenses and a reasonable attorneys' fees for either
prosecuting or resisting a motion to change the terms of the decree; that to deny her this right
would be to cripple the efficiency of the courts in enforcing the rights given to the wife in the
decree.
It should be, and it is, a matter of sound public policy to afford a minor child the means of
enforcing its rights. Graham v. Graham (Tenn.), 204 S. W. 987.
It was important, and a matter of necessity, that the respondent mother, on behalf of the
child, was entitled to have counsel to present to a proper tribunal the determination as to
what was best for the future well-being of the minor child.
to have counsel to present to a proper tribunal the determination as to what was best for the
future well-being of the minor child. Lake v. Lake, 16 Nev. 364.
OPINION
In February 1933, respondent was granted a decree of divorce from appellant in the
Second judicial district court, Washoe County. The decree awarded the custody of the minor
child, David Wallace Fleming, in accordance with the provisions of an agreement entered
into by the parents on December 5, 1932. Jurisdiction was reserved to enter further and
different orders relative to the custody of said minor child.
In October 1935 Mrs. Fleming noticed a motion for an order awarding her the exclusive
custody of said child. This motion was contested by Mr. Fleming, and after a hearing thereon
the district court, on February 21, 1936, made an order granting the exclusive custody of the
child to the mother. In this order the court, of its own motion, incorporated the following
paragraph: 4. It is further ordered, adjudged and decreed that the defendant shall, within
thirty (30) days after service upon him of the statement of plaintiff's expenses and
disbursements, reimburse the plaintiff for all sums of money which she may have expended,
or have obligated herself to expend, for any purpose, in the preparation and presentation of
her said motion herein to change and modify the original decree; and that the said plaintiff
shall have up to and including the twentieth day of March 1936, in which to file and serve a
statement of said expenses and disbursements. The Court reserves jurisdiction to determine
its right to make allowances for attorneys' fees in the prosecution of plaintiff's motion and the
amount of said allowances. The court also reserved jurisdiction to enter further and different
orders relative to the custody of said child.
In March 1936 the father noticed a motion for an order striking the above-quoted
paragraph from said order of February 21, 1936. After hearing this motion the court, on
October 19, 1936, ordered said paragraph 4 stricken, on the ground that the order did not
provide for notice to the defendant to try or contest the allowances for plaintiff's expenses. In
this order of October 19 the court added the following: that the plaintiff may renew her
application for expenses incurred in the presentation and hearing of the motion to modify the
decree, and for attorney's fees, on giving to the defendant and his attorneys statutory notice
for the hearing of the application. It is from the foregoing quoted part of said order that
defendant has appealed, his contention being that it was against, and not authorized by, the
law.
At no time did plaintiff make application for any expenses, witness' fees, or attorneys' fees,
nor did she at any time even suggest to the court that any allowances be made for such
expenses or fees. The only conclusion we can arrive at with regard to this matter is that the
district court, after hearing plaintiff's motion and considering defendant's conduct and the
respective financial circumstances of the parties, felt that, in justice, her expenses and
attorneys' fees should be paid by defendant, and for that reason made and entered that part of
the order from which defendant has appealed.
The provision granting leave to plaintiff to renew her application for expenses and
attorneys' fees relates to expenses incurred and services performed in the past, not to expenses
to be incurred or services to be performed after the making of the order.
In the record on appeal we find a stipulation signed by counsel for the respective parties,
dated May 24, 1937, and filed July 26, 1937, reading in part as follows: It is further
stipulated that it may be considered on the hearing of this matter, and as a part of the Record
on Appeal, that the testimony in the Lower Court established that the defendant and appellant,
at the time of the hearing, was of the financial worth of approximately Two Hundred
Thousand Dollars {$200,000.00), and that the plaintiff and respondent had a monthly
income of Two Hundred Dollars {$200.00) and owned no other property; but that the
respondent was and had been living at the home of an aunt in California who had
considerable means and who had been and was, up to the conclusion of the hearing
herein, financially assisting the respondent."
the hearing, was of the financial worth of approximately Two Hundred Thousand Dollars
($200,000.00), and that the plaintiff and respondent had a monthly income of Two Hundred
Dollars ($200.00) and owned no other property; but that the respondent was and had been
living at the home of an aunt in California who had considerable means and who had been
and was, up to the conclusion of the hearing herein, financially assisting the respondent. We
do not understand counsel for respondent as contending that the testimony referred to in the
foregoing stipulation was offered or given in connection with any application for expenses,
witness' fees, suit money, or attorneys' fees, or in connection with any suggestion that such
allowances be made.
The agreement of December 5, 1932, mentioned in the first paragraph of this opinion,
settled all property rights as well as the custody and support of the minor child; and
plaintiff, in her complaint for divorce, alleged that said agreement was in all respects just,
fair, reasonable, and equitable.
Section 24 of the marriage and divorce act of 1861 (section 9462 N. C. L. 1929) provides,
in part, as follows: The court, in granting a divorce, shall make such disposition of, and
provision for, the children, as shall appear most expedient under all the circumstances, and
most for the present comfort and future well-being of such children; * * * provided, the court,
upon good cause shown, may change the custody of such minor children, if they [sic] should
be satisfied that such change will be for the welfare of such children.
The following provision is included in section 26 of said act of 1861 (section 9464 N. C.
L. 1929): the proceedings, pleadings, and practice, shall conform to those at law, as nearly as
conveniently may be, but all preliminary and final orders may be in such form as will best
effect the object of this act, and produce substantial justice.
The last part of section 27 of said marriage and divorce act, as amended, Stats. 1915, p.
324 (section 9465 N. C. L.
9465 N. C. L. 1929), reads as follows: In any suit for divorce now pending, or which may
hereafter be commenced, the court or judge may, in its discretion, upon application, of which
due notice shall have been given to the husband or his attorney, at any time after the filing of
the complaint, require the husband to pay such sums as may be necessary to enable the wife
to carry on or defend such suit, and for her support and for the support of the children of the
parties during the pendency of such suit; and the court or judge may direct the application of
specific property of the husband to such object, and may also direct the payment to the wife
for such purpose of any sum or sums that may be due and owning the husband from any
quarter, and may enforce all orders made in this behalf as provided in section 24 of this act.
1. Appellant contends that after the decree of divorce was entered the divorce suit was no
longer pending. While there is considerable authority for this position, we think the better rule
is that even after entry of a divorce decree the suit remains pending for some purposes,
including modifications as to custody of minor children. Smith v. Smith, 151 Mo. App. 649,
132 S. W. 312; Lamborn v. Lamborn, 190 Cal. 794; 214 P. 862; Jacobs v. Jacobs, 68 Cal.
App. 725, 230 P. 209.
2. Where the welfare of a minor child is involved, the trial court has a continuing
jurisdiction under certain conditions to modify the decree. Spratt v. Spratt, 151 Minn. 458,
185 N. W. 509, 187 N. W. 227; Vilas v. Vilas, 184 Ark. 352, 42 S. W. (2d) 379; Chambers v.
Chambers, 75 Neb. 350, 106 N. W. 993; Haagen v. Haagen (Mo. App.), 11 S. W. (2d) 757;
Mayes v. Mayes (Mo. App.), 104 S. W. (2d) 1019.
3, 4. That plaintiff and defendant are no longer husband and wife after entry of the divorce
decree does not deprive the trial court of jurisdiction to modify the decree as to custody of
children, and in other particulars. Lamborn v. Lamborn, supra; Moore v. Gosbey, 130 Cal.
App. 70, 19 P. (2d) 995. There are many other cases to the same effect, though there are
some to the contrary.
cases to the same effect, though there are some to the contrary. It may be observed here that
there is a sharp conflict in the authorities on every important question presented on this
appeal. Conflicts of authority are sometimes more apparent than real, especially where there
are differences in the statutes of various jurisdictions relating to the matter under
consideration; but the divergent views of the courts concerning the issues of law presented on
this appeal can be but partially reconciled on the basis of difference in statutory provisions.
There is a real conflict in the opinions of many of the courts concerning these questions.
5. It is our opinion that on petition for modification of a divorce decree as to custody of
children the trial court, under certain conditions and circumstances, can lawfully require the
former husband to pay reasonable sums for suit money and attorney's fees to the former wife.
Bradstreet v. Bradstreet, 34 Ariz. 340, 271 P. 717; Gifford v. Gifford, 50 Idaho 517, 297 P.
1100; Hipple v. Hipple, 128 Kan. 406, 278 P. 33; Chambers v. Chambers, supra; Tinker v.
Tinker, 144 Okl. 94, 290 P. 187; Spratt v. Spratt, supra; Vilas v. Vilas, supra; Kaplun v.
Kaplun (Mo. App.), 227 S. W. 894; Smith v. Smith, supra. Contra to the foregoing rule are
cases in Washington, Iowa, and a few other jurisdictions.
6. Notwithstanding the views hereinbefore expressed, it is the opinion of the court that the
part of the order appealed from was unauthorized by law. We base this conclusion chiefly
upon the following considerations: It does not appear from the record that plaintiff was in
such necessitous circumstances as to require the proposed allowances; the proposed
allowances are for expenses incurred and attorneys' services performed in the past, not or
expenses and services to be incurred and performed after the making of the order; no
application was made at any time for any allowances; there is no showing that the minor
child's welfare will be adversely affected if the proposed allowances be not made.
7. It is the general rule that the wife's necessity is a prerequisite to allowances of suit
money or attorneys' fees. Black v. Black, 47 Nev. 346, 221 P. 239; Effinger v. Effinger, 48
Nev. 205, 228 P. 615, 239 P. 801; Albrecht v. Albrecht, 83 Mont. 37, 269 P. 158; 19 C. J.
214. The stipulation mentioned earlier in this opinion shows that defendant, since the divorce
decree, inherited a large sum of money, resulting in his being in much better financial
circumstances than plaintiff. There is nothing in the record to show that this change in
defendant's financial condition was not known to plaintiff when she made her motion for
modification of the decree as to custody of the minor child. Nor does the improvement in
defendant's financial condition alter the fact that plaintiff was able to and did present her
motion for modification of the decree, and that she obtained all the relief she prayed for,
namely, the exclusive custody of the minor child.
8. It is also a general rule that suit money and attorneys' fees will be allowed only for
expenses to be incurred and attorneys' services to be performed in the future, not for those
incurred and performed in the past. Dixon v. Dixon, 216 Cal. 440, 14 P. (2d) 497; Smith v.
Superior Court, 89 Cal. App. 177, 264 P. 573; Bordeaux v. Bordeaux, 29 Mont. 478, 75 P.
359; 19 C. J. 233-234. And see Wilde v. Wilde, 2 Nev. 306. We are aware that suit money
and attorneys' fees have been allowed in some cases for past expenses incurred and attorneys'
services performed. Taylor v. Taylor, 33 Idaho 445, 196 P. 211; Gedney v. Gedney, 117 Fla.
686, 158 So. 288; Clark v. State, 216 Ala. 7, 111 So. 227. But the circumstances in the case at
bar are not such as to justify a departure from the general rule.
9. Ordinarily, in divorce cases, allowances of suit money and attorneys' fees will be made
only upon application. Buehler v. Buehler, 38 Nev. 500, 151 P. 44; Auld v. Auld, 122 Neb.
576, 240 N. W. 756. The situation presented in the instant case would not, in the opinion of
this court, authorize the granting of such allowances without application made prior to the
final disposition of the motion.
allowances without application made prior to the final disposition of the motion.
The part of the order of October 19, 1936, appealed from by defendant is reversed. Each
party will pay her and his own costs, respectively, on this appeal.
____________
58 Nev. 188, 188 (1937) Schrader v. District Court
E.J. SCHRADER, Petitioner, v. THIRD JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, in and for the County of Eureka, and HON. JAMES DYSART, Presiding
Judge, Respondents.
No. 3212
November 17, 1937. 73 P. (2d) 493.
1. Eminent Domain.
The right of eminent domain appertains to every independent government as an attribute of
sovereignty, without necessity for constitutional recognition (Comp. Laws, sec. 9153 et seq.).
2. Eminent Domain.
The right to take private property for public use, in the exercise of the right of eminent domain, is not
dependent for authority upon constitutional provisions requiring that just compensation be paid for the
property, but such provisions are a mere limitation upon the exercise of the right (Comp. Laws, sec. 9153 et
seq.).
3. Eminent Domain.
When a use is public, the necessity or expediency of appropriating any particular property in the exercise
of the right of eminent domain is not a subject of judicial cognizance (Comp. Laws, sec. 9153 et seq.).
4. Eminent Domain.
Property may be appropriated in the exercise of the right of eminent domain by an act of the legislature,
or the power may be delegated to private corporations, to be exercised by them in the execution of works in
which the public is interested (Comp. Laws, sec. 9153 et seq.).
5. Eminent Domain.
Although the right of eminent domain appertains to sovereignty, when the sovereign power attaches
conditions to its exercise, inquiry into whether the conditions have been observed is a proper matter for
judicial cognizance (Comp. Laws, sec. 9153 et seq.).
6. Eminent Domain.
If an inquiry into whether conditions attached to the exercise of the right of eminent domain have been
observed takes the form of a proceeding before the courts between the owners of the land and a company
seeking appropriation, a controversy exists which is subject to the ordinary incidents of a civil suit (Comp.
Laws, sec. 9153 et seq.).
7. Eminent Domain.
Under statute, authority of state for the taking of private mining claims as for a public use, in the
exercise of the right of eminent domain, is plenary, except as restricted by constitutional limitations (Comp.
Laws, secs. 4154, 9153 et seq.).
8. Judgment.
Under statute, in an eminent domain action, summons must be served before there can be a final decree
(Comp. Laws, sec. 9153 et seq.).
9. Constitutional Law.
Generally, if a property owner has ample notice of a condemnation proceeding prior to entry of a binding
decree of condemnation, requirements as to due process are fulfilled (Comp. Laws, sec. 9153 et seq.;
Const. U.S. Amend. 14; Const. Nev. art. 1, sec. 8).
Due process of law requires that a person shall have reasonable notice and a reasonable opportunity to
be heard before an impartial tribunal, before any binding decree can be passed affecting his right to liberty
or property (Const. U. S. Amend. 14; Const. Nev. art. 1, sec. 8).
Statutory requirement for notice before property sought to be condemned can be occupied pending final
determination is a precautionary step, which the statute need not require in condemnation proceedings, as it
is the final hearing before judgment without notice which is inhibited by the Constitution as violating due
process (Comp. Laws, secs. 9153 et seq., 9162; Const. U. S. Amend. 14; Const. Nev. art. 1, sec. 8).
12. Constitutional Law Eminent Domain.
Statute permitting occupation of premises pending final determination of action for condemnation thereof
after notice of motion therefor has been served upon the county clerk, in case of a nonresident property
owner, is not unconstitutional as denying due process of law (Comp. Laws, secs. 9153 et seq., 9162; Const.
U. S. Amend. 14; Const. Nev. art. 1, sec.8).
Under statute requiring that in an eminent domain action summons must be served before final decree can
be entered, where nonresident property owner was served with both summons and complaint, order
authorizing occupation of certain mining claims pending action for condemnation thereof,
entered pursuant to statute after notice of intention to apply therefor had been
served upon clerk of county in which claims were situated, did not take owner's
property without due process of law {Comp.
mining claims pending action for condemnation thereof, entered pursuant to statute after notice of intention
to apply therefor had been served upon clerk of county in which claims were situated, did not take owner's
property without due process of law (Comp. Laws, secs. 4154, 9153 et seq., 9162; Const. U. S. Amend. 14;
Const. Nev. art. 1, sec. 8).
Condemnation statute controls in matter of procedure, but when statute has been compiled with, summons
having been served and the defendant given his day in ocurt, he is not denied due process of law (Comp.
Laws, sec. 9153 et seq.; Const. U. S. Amend. 14; Const. Nev. art. 1, sec. 8).
Condemnation statute may adopt a summary procedure with only indirect notice of proceedings, provided
that period of notice of initiation of proceedings and method of giving it are reasonably adapted to nature
of proceedings and their subject matter, and afford the property owner a reasonable opportunity at some
stage of the proceedings to protect his property from an arbitrary or unjust appropriation (Comp. Laws, sec.
9153 et seq.; Const. U. S. Amend, 14; Const. Nev. art. 1, sec. 8).
Original proceeding in certiorari by E. J. Schrader against the Third Judicial District Court
of the State of Nevada, in and for the county of Eureka, and the Honorable James Dysart,
Presiding Judge, to review an order made by the court in a condemnation suit. Proceeding
dismissed.
James T. Boyd, Geo. B. Thatcher and Wm. Woodburn, for Petitioner:
Section 9162 N. C .L. provides for a clear appropriation of another person's property
without notice to the defendant, if he be not a resident of the county, or if he has not
appeared. The section does not require the clerk of the court to do anything with the notice,
and the service on the clerk would be sufficient under the statute if the party resided on a part
of the property situate in another country.
The complaint alleges that E. J. Schrader is the owner and occupant of the land sought to
be condemned, so the plaintiff knew who was the owner and occupant, and could have served
him if it had desired to do so.
There is no allegation in the complaint that the use to which the plaintiff proposes to use
the lands is a superior use to that which the defendant has the right to use the lands, which is
prescribed as a condition precedent to condemnation, by subdivision 3 of section 9156 N. C.
L.
Where property is to be taken, it is necessary that the other party must have notice. Hettel
v. District Court, 30 Nev. 382, 96 P. 1062; Golden v. District Court, 31 Nev. 250, 101 P.
1021; State v. Wildes, 34 Nev. 94, 116 P. 595; 20 C. J. 927, sec. 343 et seq.; Lewis, Eminent
Domain (2d ed.), secs. 364, 365.
See also, California P. R. Co. v. Cen. P. R. Co., 47 Cal. 528; Davis v. San Lorenzo R. R.
Co., 47 Cal. 17.
In the case of Wuchter v. Pizzutti, 72 L. Ed. 446, the supreme court of the United States
held invalid a statute providing for service on the secretary of state, where no provision was
made in the statute requiring the secretary of state to communicate with the defendant.
The legislature recognizes the necessity for service of notices. Stats. 1937, p. 48.
Hawkins, Mayotte & Hawkins, Specially appearing for Respondents:
This court has enjoined, without day certain, the operations of respondent corporation and
its agents and employees. No undertaking was required, so no certainty of recoupment
appears. No notice was given the parties enjoined, and no opportunity for a hearing is
afforded. In order to obtain a hearing such parties must (we assume for this purpose) disobey
the order and take the risk of a proceeding in contempt. Such a proceeding violates art. VI and
amendment XIV of the constitution of the United States and art. 1, sec. 8 of the constitution
of Nevada; it denies to these respondents due process of law, and equal protection of the law.
Law, which by its very procedure condemns before it hears, does not give due process of law.
Jensen v. U. P. R. Co. {Utah), 21 P.
U. P. R. Co. (Utah), 21 P. 994; San Mateo County v. S. P. R. Co., 13 Fed. 722; Londoner v.
Denver, 210 U. S. 373, 52 L. Ed. 1103; San Diego L. & P. Co. v. Nat'l City, 174 U.S. 740,
750, 43 L. Ed. 1155, 1158; Davis v. Berry (D. C. Ia.), 216 Fed. 413; Security T. & S. Co. v.
Lexington, 203 U. S. 323, 51 L. Ed. 204, 207-8.
OPINION
This is an original proceeding in certiorari to review an order made by the respondent
court in a condemnation suit instituted pursuant to chapter 66, vol. 4, N. C. L. (section 9153
et seq.).
The order sought to be annulled is one authorizing the Roberts Mining & Milling
Company to occupy the premises sought to be condemned, pending the action. The order in
question was made after notice of the intention to apply for such order was served upon the
county clerk of Eureka County, in which the property is situated; the petitioner herein
(defendant in said suit) being a resident of Washoe County.
The sole contention made in this proceeding is that the statute (section 9162 N. C. L.)
authorizing the serving of such notice in the manner complained of is in violation of the
provisions of both the state and federal constitutions guaranteeing due process of law, hence
is null and void, and therefore the respondent court acquired no jurisdiction to make it.
Article 1, section 8, of the constitution of Nevada, so far as here material, reads: No
person shall be * * * deprived of life, liberty, or property, without due process of law; nor
shall private property be taken for public use without just compensation having been first
made, or secured.
Amendment fourteen of the federal constitution provides that: No State shall * * *
deprive any person of * * * property, without due process of law.
We will not incumber this opinion by detailing all of the allegations of the petition, nor all
that appears from the record sent up by the respondent court, but only enough will be stated to
make clear the situation presented.
It appears that on July 15, 1937, Roberts Mining & Milling Company, a corporation
engaged in the working of mining property, commenced an action in the respondent court
against petitioner and others, to condemn portions of certain mining claims owned by this
petitioner, situated in Eureka County, Nevada; that a copy of the complaint, attached to a
copy of the summons in said action, was served upon the petitioners herein on August 2,
1937.
It further appears that on July 15,1937, the respondent court entered an order shortening
the time for hearing of a motion on the part of the plaintiff in said condemnation action, for
leave to immediately enter upon, take possession of, and occupy, the property in question
pending and until the final determination of said action, and set the hearing for 10 o'clock
a.m. on July 21, 1937, and further ordered that said notice of motion be served upon the
defendants in said action as provided by statute.
This defendant being a nonresident of Eureka County, the said notice of motion was
served upon him by service upon Ed. Delaney, clerk of the said court, as provided in section
9162 N. C. L., which reads: The plaintiff may move the court or a judge thereof, at any time
after the commencement of suit, on notice for such time as the court or judge may direct to
the defendant, if he is a resident of the county, or has appeared in the action, otherwise by
serving a notice directed to him on the clerk of the court, for an order permitting the plaintiff
to occupy the premises sought to be condemned, pending the action, and to do such work
thereon as may be required for the easement sought, according to its nature.
to be condemned, pending the action, and to do such work thereon as may be required for the
easement sought, according to its nature. The court or a judge thereof shall take proof by
affidavit or otherwise, of the value of the premises sought to be condemned and of the
damages which will accrue from the condemnation, and of the reasons for requiring a speedy
occupation, and shall grant or refuse the motion according to the equity of the case and the
relative damages which may accrue to the parties. If the motion is granted, the court or judge
shall require the plaintiff to execute and file in court a bond to the defendant, with sureties, to
be approved by the court or judge in a penal sum to be fixed by the court or judge, not less
than double the value of the premises sought to be condemned and the damages which will
ensue from condemnation and occupation, as the same may appear to the court or judge on
the hearing, and conditioned to pay the adjudged value of the premises and all damages, in
case the property is condemned, and to pay all damages arising from occupation before
judgment in case the premises are not condemned, and all costs adjudged to the defendant in
the action. The sureties shall justify before the court or judge, after a reasonable notice to the
defendant of the time and place of justification. The amounts fixed shall be for the purpose of
the motion only, and shall not be admissible in evidence on final hearing. The court or judge
may also, pending the action, restrain the defendant from hindering or interfering with the
occupation of the premises and the doing thereon of the work required for the easement.
Counsel for petitioner relies upon the following authorities to sustain his contention that
the order in question resulted in the taking of petitioner's property without due process of law:
California P. R. Co. v. Central P. R. Co., 47 Cal. 528; Davis v. San Lorenzo R. R. Co., 47
Cal. 517; Hettel v. District Court, 30 Nev. 382, 96 P. 1062, 133 Am. St. Rep. 730; Golden v.
District Court, 31 Nev.
250, 101 P. 1021; State v. Wildes, 34 Nev. 94-123, 116 P. 595; 20 C. J. 927, sec. 343 et seq.;
Lewis' Eminent Domain (2d ed.), secs. 364, 365; Wuchter v. Pizzutti, 276 U. S. 13, 48 S. Ct.
259, 260, 72 L. Ed. 446, 57 A. L. R. 1230.
1-6. Before entering upon the consideration of the specific question involved, we think it
will be well to consider the power of a sovereign state in the exercise of the right of eminent
domain, unhampered by constitutional limitations. This viewpoint is so admirably expressed
by Mr. Justice Field in the case of Mississippi & R. R. Boom Co. v. Patterson, 98 U. S. 403,
406, 25 L. Ed. 206, we content ourselves with quoting from it: The right of eminent domain,
that is, the right to take private property for public uses, appertains to every independent
government. It requires no constitutional recognition; it is an attribute of sovereignty. The
clause found in the Constitutions of the several States providing for just compensation for
property taken is a mere limitation upon the exercise of the right. When the use is public, the
necessity or expediency of appropriating any particular property is not a subject of judicial
cognizance. The property may be appropriated by an act of the legislature, or the power of
appropriating it may be delegated to private corporations, to be exercised by them in the
execution of works in which the public is interested. But notwithstanding the right is one that
appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the
inquiry whether the conditions have been observed is a proper matter for judicial cognizance.
If that inquiry take the form of a proceeding before the courts between parties,the owners
of the land on the one side, and the company seeking the appropriation on the other,there is
a controversy which is subject to the ordinary incidents of a civil suit, and its determination
derogates in no respect from the sovereignty of the State.
7. From the above quotation it is seen that the authority of the state to take private
property for public use is plenary, except where restricted by constitutional limitations,
and section 4154 N. C. L. provides that mining for gold and other valuable metals is the
paramount interest of this state and declared to be a public use, as has often been
recognized by this court. Goldfield Consol. M. Co. v. Old Sandstorm, etc., Co.,
authority of the state to take private property for public use is plenary, except where
restricted by constitutional limitations, and section 4154 N. C. L. provides that mining for
gold and other valuable metals is the paramount interest of this state and declared to be a
public use, as has often been recognized by this court. Goldfield Consol. M. Co. v. Old
Sandstorm, etc., Co., 38 Nev. 426, 427, 150 P. 313.
It will be observed that the statute pursuant to which the notice was served upon the clerk
of the court makes no provision for sending it to a defendant in an eminent domain
proceeding. It is for this reason that it is contended that the petitioner had no notice of the
proceeding, and that the authority last cited controls.
The facts of that case, so far as here material, are that Pizzutti, a resident of New Jersey,
was injured by Wuchter, a nonresident, by being struck by an automobile driven by Wuchter
while traveling along a highway in New Jersey, and that service of summons was sought to be
obtained on Wuchter by serving a copy thereof on the secretary of state of New Jersey,
pursuant to the statute of the state. The court in that case states the question involved as
follows: The question made in the present case is whether a statute, making the secretary of
state the person to receive the process, must, in order to be valid, contain a provision making
it reasonably probable that notice of the service on the secretary will be communicated to the
nonresident defendant who is sued. Chapter 232 of the Laws of 1924 [Comp. St. Supp. N. J.
1924, sec. 135-93 et seq.] makes no such requirement and we have not been shown any
provision in any applicable law of the state of New Jersey requiring such communication. We
think that a law with the effect of this one should make a reasonable provision for such
probable communication. Wuchter v. Pizzutti, supra.
The court holds in that case that the New Jersey statute did not afford due process of law.
8. The case mentioned is not in point, because of the essential difference in the character
of the two actions; the one relied upon being to recover a personal judgment in damages
against a nonresident defendant by service of summons upon the secretary of state,
pursuant to statute; while the action instituted in the respondent court is to condemn real
property in pursuance of the eminent domain act.
essential difference in the character of the two actions; the one relied upon being to recover a
personal judgment in damages against a nonresident defendant by service of summons upon
the secretary of state, pursuant to statute; while the action instituted in the respondent court is
to condemn real property in pursuance of the eminent domain act. In an eminent domain
action in Nevada, summons must be served before there can be a final decree.
The California cases relied upon do not sustain the contention made. Counsel quotes from
the opinion in the case first named above. The first paragraph and the first two sentences in
the second paragraph cites the second case above named, to support its statement, which
statement, in fact, is meaningless, so far as the instant matter and the Davis case are
concerned.
From a casual reading of the opinion in the case of Davis v. San Lorenzo R. R. Co., supra,
it will appear that it is no authority in the instant matter. The opinion in that case clearly
points out that that statute in question in that case made no provision for compensation to the
owner where, upon final hearing, condemnation is not ordered. This clearly appears from the
following quotation from the opinion: If the proceeding shall ultimately fail, and the land,
for any cause, shall not be taken for public use, no provision whatever is made in the statute
for securing to the owner compensation for the use of the land and for waste committed upon
it whilst the corporation was in the possession. This omission has been supplied by section
1,254 of the Code of Civil Procedure. But under the Act of 1861, as amended in 1863, the
corporation, on giving the bond required by section 34, might enter upon the land, demolish
the buildings if there were any, destroy the timber, dig up orchards and vineyards, make
excavations and embankments, and in fact might render the land wholly valueless for any
other than railroad uses. After this devastation was accomplished, and the owner was
despoiled of his estate under the authority of law, the proceeding for condemnation might
utterly fail of its purpose, and the land would not finally be taken for public use, nor
subjected to the servitude.
condemnation might utterly fail of its purpose, and the land would not finally be taken for
public use, nor subjected to the servitude. In that event, the Court having jurisdiction of the
proceeding could award no compensation to the owner; and the bond given by the corporation
could afford him no redress, inasmuch as the damages he had suffered would not come within
its conditions. We should then have a case in which the law had authorized a private
corporation to enter upon the lands of another, demolish his buildings and convert the
materials of which they were composed to its own use, and cut down his growing timber or
dig the stone from his quarries, and after it was severed from the freehold and had become
personal property, use it as it saw fit for the purposes of its incorporation. All this might be
done under the authority of law, and in the meantime the owner would be compelled to stand
by, with his hands tied and his mouth closed, whilst his personal property was being
appropriated by another and his real estate was being devastated and wasted, without a
pretense that any security had been given to which he can resort for indemnity. If the land
should not be ultimately taken his only remedy would be an action in some form against the
corporation. But in the meantime he has been wholly deprived of his personal property when
severed from the realty, and his land may have been rendered utterly valueless, and that, too,
under the authority of law. If a statute which accomplishes these results is valid, that clause of
the constitution which prohibits private property from being taken for public use without just
compensation, is an idle and meaningless phrase.
9. If our eminent domain act contemplated no further service of process before a final
judgment of condemnation could be entered, and damages pending such final judgment, it is
probable that the service complained of would not serve to give the court jurisdiction to enter
a final judgment; but summons was regularly issued in the condemnation proceedings, as in
other civil cases, and served upon the petitioner with a copy of the complaint, on August
2, 1937.
issued in the condemnation proceedings, as in other civil cases, and served upon the
petitioner with a copy of the complaint, on August 2, 1937. In fact, section 9162, pursuant to
which the order for possession complained of was entered, contemplates that a full hearing
shall be had, subsequent to the issuance of such order, for it provides for the giving of a bond
by the plaintiff conditioned to pay the adjudged value of the premises and all damages in
case the property is condemned, and to pay all damages arising from occupation before
judgment in case the premises are not condemned, and all costs adjudged to the defendant in
the action.
The Nevada cases cited by counsel do not aid us in determining the question involved.
The well-established rule, speaking generally, is that if the owner has ample notice of the
proceeding, prior to the entry of a binding decree of condemnation, the requirements as to due
process are fulfilled.
10. Lewis on Eminent Domain (3d ed.) at sec. 566, after some consideration of the
questions, says: What then is due process of law? Without attempting to answer this
question by a general definition, it is sufficient for the present inquiry to say that all the
authorities agree that due process of law requires that a person shall have reasonable notice
and a reasonable opportunity to be heard before an impartial tribunal before any binding
decree can be passed affecting his right to liberty or property.
It was said by the supreme court of the United States, in Cherokee Nation v. Southern
Kansas R. Co., 135 U. S. 641, 10 S. Ct. 965, 972, 34 L. Ed. 295: Within the meaning of the
constitution, the property, although entered upon pending the appeal, is not taken until the
compensation is ascertained in some legal mode, and, being paid, the title passes from the
owner.
11-13. No case has been called to our attention, and we have found none, in which a
statute such as ours was considered; and the requirement in our statute for the giving of
notice before property sought to be condemned can be occupied, is a precautionary step,
which the statute need not require in condemnation proceedings, as it is the final hearing
before judgment which the state and federal constitutions contemplate; hence a
compliance with the statutory provision as to the preliminary notice was all that was
necessary to authorize the respondent court to make the order complained of.
the giving of notice before property sought to be condemned can be occupied, is a
precautionary step, which the statute need not require in condemnation proceedings, as it is
the final hearing before judgment which the state and federal constitutions contemplate;
hence a compliance with the statutory provision as to the preliminary notice was all that was
necessary to authorize the respondent court to make the order complained of.
The supreme court of Kansas, in Buckwalter v. School District, 65 Kan. 603, 70 P. 605,
606, says: The objection made by the plaintiff in error to them is that no notice of their
pendency or progress was given her. This is true. Was notice necessary? It is claimed that
private property may not be taken for public use without due process of law and full
compensation, and that due process of law requires notice to be given to the party to be
affected. This land was taken for a public purpose, and by the exercise of the power of
eminent domain. The only provision in our fundamental law limiting the exercise of this
power is that contained in section 4 of article 12 of the constitution, which is: No right of
way shall be appropriated to the use of any corporation, until full compensation therefor be
first made in money, or secured by a deposit of money, to the owner.'
In that case no notice was given, and none was required, except as to the preliminary steps
in the condemnation proceeding. The court in that case, to support its conclusions, cites,
among other authorities, the case of Fox v. Western Pac. Ry. Co., 31 Cal. 538.
In New York, where the constitutional provision is the same as ours, the Court of Appeals,
in People v. Adirondack Ry. Co., 160 N. Y. 225, 54 N. E. 689, 693, asks the question: Now,
what does the phrase, due process of law,' mean, when thus applied to the exercise of a
sovereign power? Answering the question, the court said: The state needs the property, and
takes it, and, while the citizen cannot resist, he has the right to insist upon just compensation
to be ascertained by an impartial tribunal.
an impartial tribunal. It is a compulsory purchase by public authority, and the individual
receives money in the place of the property taken. He has a right to his day in court on the
question of compensation, but he has no right to a day in court on the question of
appropriation by the state, unless some statute requires it. Matter of Village of Middletown,
82 N. Y. 196, 201. There is no necessity for any safeguard against taking, because the right to
take is all there is of the power of eminent domain, and is necessarily conceded to exist when
the existence of the power is admitted. Safeguards become necessary only when the question
of compensation is reached, and then the courts are careful to see that the owner receives all
that he is entitled to. Until then the courts could not help him, unless some statutory right
were invaded, as the method of taking is within the exclusive control of the legislature. If a
statute requires judgment of condemnation, judgment must be had accordingly before the
property can be taken, but otherwise a certificate of condemnation by an executive officer,
followed by payment, satisfies every requirement of the Constitution.
14. There the court was dealing with the question of due process only, and did not have
before it a statute such as ours. With us, the statute must, of course, control in the matter of
procedure; but when that is complied with, the summons having been served and the
defendant given his day in court, he is not denied due process of law.
In Wilson v. Standefer, 184 U. S. 399, 400, 22 S. Ct. 384, 46 L. Ed. 612, it was held that
due process of law is afforded a litigant if he have an opportunity to be heard at any time
before final judgment is entered.
In the case of McInnes v. McKay, 127 Me. 110, 141 A. 699, 702, the court, in dealing with
an attachment proceeding, says: But, although an attachment may, within the broad meaning
of the preceding definition, deprive one of property, yet conditional and temporary as it is,
and part of the legal remedy and procedure by which the property of a debtor may be
taken in satisfaction of the debt, if judgment be recovered, we do not think it is the
deprivation of property contemplated by the Constitution.
as it is, and part of the legal remedy and procedure by which the property of a debtor may be
taken in satisfaction of the debt, if judgment be recovered, we do not think it is the
deprivation of property contemplated by the Constitution. And if it be, it is not a deprivation
without due process of law' for it is a part of a process, which during its proceeding gives
notice and opportunity for hearing and judgment of some judicial or other authorized tribunal.
The requirements of due process of law' and law of the land' are satisfied.
In the case of Liberty Cent. Trust Co. v. Greenbrier College for Women (D. C.), 50 F. (2d)
424, 428, it is said: The due process clause does not guarantee to the citizen of a state any
particular form or method of state procedure. Under it he may neither claim a right to trial by
jury nor a right of appeal. Its requirements are satisfied if he has reasonable notice and
reasonable opportunity to be heard and to present his claim or defense; due regard being had
to the nature of the proceeding and the character of the rights which may be affected by it.
15. The supreme court of the United States, in North Laramie Land Co. v. Hoffman, 268
U. S. 276, 278, 45 S. Ct. 491, 494, 69 L. Ed. 953, says: In consequence, it has been
uniformly held that statutes providing for taxation or condemnation of land may adopt a
procedure, summary in character, and that notice of such proceedings may be indirect,
provided only that the period of notice of the initiation of proceedings and the method of
giving it are reasonably adapted to the nature of the proceedings and their subject-matter, and
afford to the property owner reasonable opportunity at some stage of the proceedings to
protect his property from an arbitrary or unjust appropriation.
In Commercial Station Post Office et al. v. United States (C. C. A.), 48 F. (2d) 183, 184, it
is said: It is settled that the government may take possession in advance of passing of title or
of abandonment of the condemnation proceeding {Hanson Lumber Co. v. United States,
261 U. S. 5S1, 5S7, 43 S. Ct. 442, 67 L. Ed. S09), and that, while payment must be made
for the use of the property during such advance possession {Seaboard Air Line Ry. Co. v.
U. S., 261 U. S. 299, 305, 43 S. Ct. 354, 67 L. Ed. 664; U. S. v. Rogers, 255 U. S. 163, 169,
41 S. Ct. 2S1, 65 L. Ed. 566), yet it need not make such payment at the time of taking
possession {Seaboard Air Line Case, supra, page 306 of 261 U. S., 43 S. Ct. 354 {67 L. Ed.
664); Cherokee Nation v. Kansas Ry. Co., 135 U. S. 641, 659, 10 S. Ct. 965, 34 L. Ed. 295),
but that the owner is sufficiently protected if adequate provision for payment for
possession be made at the time of taking possession {Joslin Co. v. Providence, 262 U. S.
66S, 677, 43 S. Ct. 6S4, 67 L. Ed. 1167; Hanson Lumber Co. v. U. S., 261 U. S. 5S1, 5S7, 43
S. Ct. 442, 67 L. Ed. S09)."
condemnation proceeding (Hanson Lumber Co. v. United States, 261 U. S. 581, 587, 43 S.
Ct. 442, 67 L. Ed. 809), and that, while payment must be made for the use of the property
during such advance possession (Seaboard Air Line Ry. Co. v. U. S., 261 U. S. 299, 305, 43
S. Ct. 354, 67 L. Ed. 664; U. S. v. Rogers, 255 U. S. 163, 169, 41 S. Ct. 281, 65 L. Ed. 566),
yet it need not make such payment at the time of taking possession (Seaboard Air Line Case,
supra, page 306 of 261 U. S., 43 S. Ct. 354 (67 L. Ed. 664); Cherokee Nation v. Kansas Ry.
Co., 135 U. S. 641, 659, 10 S. Ct. 965, 34 L. Ed. 295), but that the owner is sufficiently
protected if adequate provision for payment for possession be made at the time of taking
possession (Joslin Co. v. Providence, 262 U. S. 668, 677, 43 S. Ct. 684, 67 L. Ed. 1167;
Hanson Lumber Co. v. U. S., 261 U. S. 581, 587, 43 S. Ct. 442, 67 L. Ed. 809).
See, also, Branson v. Gee, 25 Or. 462, 36 P. 527, 24 L. R. A. 355; Holt v. Summerville,
127 Mass. 408; State v. Jones, 139 N. C. 613, 52 S. E. 240, 2 L. R. A. (N. S.) 313;
Zimmerman v. Canfield, 42 Ohio St. 463; People v. Smith, 21 N. Y. 595, 597; Lent v.
Tillson, 72 Cal. 404, 412, 14 P. 71; State Water Supply Commission v. Curtis, 192 N. Y. 319,
85 N. E. 148; New Orleans, etc., R. Co. v. Hemphill, 35 Miss. 17; Sloan v. Lawrence County,
134 Ark. 121, 203 S. W. 260; Hessel v. A. Smith & Co., (D. C.) 15 F. Supp. 953.
A great array of authorities might be cited in support of our conclusion, but the question is
so well settled, and by such eminent authorities, that we do not consider it necessary to
incumber this opinion with further citations.
It is ordered that these proceedings be, and they are hereby, dismissed.
____________
58 Nev. 204, 204 (1937) Jahn v. District Court
ANDREW JAHN, Petitioner, v. THE SIXTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Humboldt, and J.M. LOCKHART, as
Acting and Presiding Judge Thereof, Respondents.
No. 3208
November 18, 1937. 73 P. (2d) 499.
Petitioner seeking order requiring state engineer to desist from interfering with dam, reserviors, etc., of
petitioner, and requiring state engineer to receive all water released by petitioner from its reservior system
and distribute it as directed by petitioner, was limited to remedy provided by statute affording remedy to
any person aggrieved by any decision of state engineer, and could not obtain relief under statutes governing
distribution of water under control of district court and regulation of use of bed of stream (Comp. Laws,
secs. 7926, 7961, 7963, 7937-7974).
Remedy available under statute to persons aggrieved by decision of state engineer relating to
administration of determined water rights held applicable to decisions made pursuant to statutes
empowering state engineer to divide waters of natural streams among several ditches and reserviors taking
water therefrom and to regulate distribution of water among various users whose rights have been
adjudicated, where decisions related to water rights based on permits to appropriate water, certificates of
appropriation mentioned in statutes, and decree of court pursuant to procedure for determination of rights
(Comp. Laws, secs. 7905-7927, 7939, 7958, 7961).
Statute providing that, from and after filing of order of determination, distribution of water shall at all
times be under supervision and control of district court, is intended to put stream system, for purposes of
control and distribution, in custodia legis, but is not intended to clothe court with administrative functions
which, by other sections of water law, devolve upon state engineer, the purpose of the act being to clothe
state engineer with adminstrative, and courts with judicial, powers and duties essential to control and
distribution of public waters of state (Comp. Laws, secs. 7926, 7939, 7958, 7961).
Water law and all proceedings thereunder are special, and basis of jurisdiction of court, in all matters
pertaining to the adjudication and control of public waters, must be found in water law, the court
having no power, by virtue of inherent power to instruct and direct its officers, to
order state engineer to desist from carrying out decisions made by state engineer
under his statutory powers to divide and regulate distribution of waters of natural
streams {Comp.
water law, the court having no power, by virtue of inherent power to instruct and direct its officers, to order
state engineer to desist from carrying out decisions made by state engineer under his statutory powers to
divide and regulate distribution of waters of natural streams (Comp. Laws, secs. 7939, 7958).
A proceeding under statute to review decision of state engineer relating to adminstration of determined
water rights must be initiated in proper court of county in which matters affected, or portion thereof, are
situated, and cannot be maintained in court of another county (Comp. Laws, sec. 7961).
Where proceeding for order requiring state engineer to desist from interfering with dam, reserviors, etc.,
was one not contemplated by water law, order granting relief prayed was not appealable (Comp. Laws, sec.
7890 et seq).
Water user named in decree in water adjudication proceeding and injured thereby had sufficient
beneficial interest to maintain proceeding in supreme court for certiorari requiring district court to desist
from further proceedings in the matter and to stay its order entered therein.
Certiorari held to lie in supreme court on application of affected water user to compel district court to
stay its order requiring state engineer to desist from interfering with dam, reserviors, etc., where district
court was without jurisdiction to entertain proceeding for order because matters affected were situated in
another county, since applicant had no other plain, speedy, and adequate remedy (Comp. Laws, sec. 7961).
9. Certiorari.
Applicant for certiorari to compel district court to stay its order on ground that district court had no
jurisdiction to entertain proceeding for order was not required first to call to attention of district court its
lack of jurisdiction.
Original proceeding by Andrew Jahn for certiorari requiring the Sixth Judicial District
Court of the State of Nevada, in and for Humboldt County, and others, to desist from further
proceedings in the matter of the determination of the relative rights of claimants and
appropriators of waters of the Humboldt River Stream System and its tributaries on the
petition of the Humboldt Lovelock Irrigation, Light & Power Company and directing further
relief. Petition granted.
Roy W. Stoddard and Myron R. Adams, for Petitioner:
The legislature, in section 78 of the water code, provided that the attorney-general and the
district attorney of the county in which legal questions arise shall be the legal advisers of the
state engineer, etc. Hence, we submit that the presiding judge of the court in which the decree
is entered under the provisions of the code is not the legal adviser of the state engineer in his
distribution of the water in accordance with the terms of the decree entered. And,
furthermore, we submit that the provisions of section 36 1/2 of the water code do not and
could not authorize or empower a district judge to in any manner instruct, require and order
the state engineer, or to enter an ex parte order as entered by respondent Presiding Judge
Lockhart, without first having before him the parties affected thereby, by judicial process as
provided by the water code or under the provisions of the civil practice act. State ex rel.
Malone v. District Court, 52 Nev. 270, 286 P. 418; In re Water Rights in Humboldt River, 49
Nev. 357, 363, 246 P. 692.
In other words, that the waters of the stream, as to decreed and determined rights, remain
in custodia legis for the better enforcement of the distribution thereof, and for that purpose
only.
We submit that the reservoir corporation, feeling aggrieved at the state engineer, as
affirmatively appears from its petition filed in the court at Winnemucca, is limited to
following the procedure outlined in section 75 of the code, and have the matter reviewed by a
proceeding for that purpose in the proper court of the county in which the property is situated,
or under section 36 1/2, by citing the state engineer into court for contempt after due notice,
in the manner provided by law in such proceedings, to all parties affected thereby. In re Water
Rights in Humboldt River, supra; Ruddell v. District Court, 54 Nev. 363, 17 P. (2d) 693;
Haines v. Fearnely (Colo.), 117 P. 162.
We assume that this court will say that section 36 1/2 of the water code does not attempt to
authorize a district judge to exercise the administrative function of distributing the waters of
the stream by ordering or advising the state engineer, in his administrative capacity. Vineyard
Land and Stock Co. v. District Court, 42 Nev. 1, 171 P. 166; Kinney on Irrigation (2d ed.),
vol. 3, p. 2434, sec. 1343; In re Waters in Humboldt River, supra; Ormsby County v.
Kearney, 37 Nev. 314, 142 P. 803; Humboldt Lane & Cattle Co. v. Allen, 14 Fed. (2d) 650.
It cannot be successfully said, we submit, that the court which entered the decree under the
provisions of sections 18 to 39 of the code has jurisdiction over the distribution of water
under a permit issued by the state engineer either before or after the entry of the decree, and
particularly so when such permit is not included in the decreed rights; hence, in the instant
case, we do not think it can be said that under the provisions of the water code the state
engineer, as to his regulation and distribution of water to the reservoir corporation as a
permittee, is an officer of the court.
Hawkins, Mayotte & Hawkins, for Respondents:
Under section 36 1/2 of the water code two things are manifest: First, that the distribution
of water by the state engineer is, at all times, under the supervision and control of the district
court; and, second, that the state engineer is deemed to be an officer of the court in
distributing the water pursuant to the order of determination or under decree of the court.
State ex rel. Hinckley v. District Court, 53 Nev. 343, 1 P. (2d) 105.
It is apparent from the face of the order and petition themselves that all the district court
was attempting to do, and all that it did do, was to give to the state engineer temporary
instructions concerning the distribution of water under the order of determination and the
decree of the court. It is apparent, therefore, that the court and judge in such matter was
acting within the jurisdiction conferred upon him by the very statute itself.
the court and judge in such matter was acting within the jurisdiction conferred upon him by
the very statute itself. Feusier v. Lammon, 6 Nev. 209. Presumption of jurisdiction is
indulged for courts of general jurisdiction. 15 C. J. p. 827; Gamble v. Silver Peak, 35 Nev.
319,133 P. 936; Deegan v. Deegan, 22 Nev. 185, 37 P. 360.
The district court has inherent power to instruct and direct its officers.
The order made provided for a hearing, which opens the door of the court to the state
engineer and to all persons who were interested in the matters involved or touched upon by
the order; it was not an unusual order, and there was nothing improper about it. Birmingham
Trust & Savings Co. v. Atlanta B. & A. Ry. Co., 271 Fed. 731.
The order of July 16, 1937, not being a final order, is not subject to review by certiorari,
and the writ herein involved should be superseded. 11 C. J. 183, 184.
A prosecutor in a matter of a certiorari must have a substantial interest and have sustained
an injury by the ruling complained of. 11 C. J. 135-6. What showing is there of injury to Jahn,
in whatever right he may have, simply by showing an order of instruction given to the state
engineer, that order being coupled with an invitation to Jahn, and all persons interested in the
matter, to come into court and present their rights or contentions?
OPINION
By the Court, Hatton, District Judge:
These proceedings arise out of the claim of the Humboldt Lovelock Irrigation, Light &
Power Company (hereinafter referred to as the company) to a vested right to take and store
annually a minimum of 49,770 acre-feet of water of the Humboldt river, together with the
right to control the distribution of such water, free from interference on the part of the
state engineer.
the right to control the distribution of such water, free from interference on the part of the
state engineer.
Pursuant to such claim of right, the company filed in the Sixth judicial district court, in
case No. 2804, entitled: In the Matter of the Determination of the Relative Rights of
Claimants and Appropriators of Waters of the Humboldt River Stream System and its
Tributaries, its petitioner, based primarily upon section 36 1/2 (section 7926 N. C. L.) and
section 77 (section 7963 N. C. L.) of the water law, praying that the state engineer be ordered
to desist from interfering with the intake and diversion dam, the canal, control works,
reservoirs, and outlet control works of said reservoirs of the petitioning company, and that he
be ordered to receive all water released by the company from its reservoir system and
distribute the same as directed by the company. On July 16, 1937, upon the petition referred
to, and without notice to the state engineer, an order was issued by the presiding district
judge, as prayed for.
On July 23, 1937, the petitioner, Andrew Jahn, filed in this court his application and
affidavit for writ of certiorari, and, likewise, on the same date, a similar application of the
State of Nevada, upon the relation of Alfred Merritt Smith, state engineer of the State of
Nevada, was filed. Thereafter, a writ of certiorari was issued on each of the applications
referred to, requiring the presiding district judge, pending the further order of this court, to
desist from further proceedings in the matter referred to, staying his order, and ordering the
state engineer to distrubute the waters of the Humboldt river, in the Lovelock Valley district,
in accordance with the Bartlett Decree of October 20, 1931, until the further order of this
court.
After a hearing, an order of this court was made on August 9, 1937, in each of the
above-entitled proceedings, setting aside the order of the presiding district judge made on
July 16, 1937, and restraining the said court and judge from further action in the matter.
court and judge from further action in the matter. The order in State ex rel. Smith v. Sixth
Judicial Dist. Court (Nev.) 73 P. (2d) 502, which is substantially the same as the order in this
case, reads as follows:
This matter coming on for hearing upon the petition and return thereto, and counsel for
plaintiff and relator and respondents being heard, and the court being fully advised in the
premises and being of the opinon that the method of obtaining relief contended for by the
Humboldt Lovelock Irrigation, Light and Power Company, is exclusively provided for by
section 75 of the Water Law (section 7961, N. C. L.), and that the respondent court and the
Honorable J. M. Lockhart, Presiding Judge thereof, were without jurisdiction to entertain the
proceeding complained of herein, and are without jurisdiction to further proceed therein.
It is ordered, adjudged and decreed that the order and proceedings had, made and entered
by said respondent court, and said presiding judge complained of by Plaintiff and Relator be,
and the same are hereby set aside, annulled and held for naught, and said court and judge
hereby restrained from further action in said proceeding.
The purpose of this opinion is to set forth briefly the views upon which the said orders of
this court of August 9, 1937, are based.
1, 2. In the orders referred to, we held that the Humboldt Lovelock Irrigation, Light &
Power Company, in seeking the relief for which it contends, is limited to the remedy provided
for in section 75 of the water law (section 7961 N. C. L.). The portion of that section which is
pertinent at the moment reads as follows: Any person feeling himself aggrieved by any order
or decision of the state engineer, acting in person or through his assistants or the water
commissioners, affecting his interests, when such order or decision relates to the
administration of determined rights or is made pursuant to sections 52 to 88, inclusive, of this
act, may have the same reviewed by a proceeding for that purpose, insofar as may be in
the nature of an appeal, which shall be initiated in the proper court of the county in which
the matters affected or a portion thereof are situated.
act, may have the same reviewed by a proceeding for that purpose, insofar as may be in the
nature of an appeal, which shall be initiated in the proper court of the county in which the
matters affected or a portion thereof are situated. The proceedings in every case shall be heard
and tried by the court, and shall be informal and summary, but full opportunity to be heard
shall be had before judgment is pronounced. And no such proceedings shall be entertained
unless notice thereof, containing a statement of the substance of the order or decision
complained of, and of the manner in which the same injuriously affects the petitioner's
interests, shall have been served upon the state engineer, personally or by registered mail, at
his office at the state capitol within thirty days following the rendition of the order or decision
in question.
This section affords a remedy to any person aggreived by any order or decision of the state
engineer relating to the administration of determined rights or made pursuant to sections 52 to
88, inclusive, of the water law (section 7937-7974 N. C. L.). The acts of the state engineer,
complained of by the company in the lower court, constitute a decision or series of decisions
on his part, within the meaning of section 75. The decision or decisions referred to were made
pursuant to, or under color of, his power and duties prescribed by sections 54 and 72a of the
water law (N. C. L., secs. 7939, 7958). Under these sections, there devolves on the state
engineer the power and duty to divide the waters of the natural streams in the state among the
several ditches and reservoirs taking water therefrom and to regulate the distribution of water
among the various users under any ditch or reservoir, whose rights have been adjudicated.
The company's water rights are based on its permits to appropriate water and the certificates
of appropriation mentioned in said sections, and the decree of court pursuant to procedure
provided for in sections 18 to 37 of the water law (N. C. L., secs.
7905-7927). Hence, the remedy provided for in section 75 (N. C. L., sec. 7961) is applicable
to the said decisions of the state engineer.
3. The company, however, has sought to invoke the powers of the district court mentioned
in section 36 1/2 of the act (N. C. L., sec. 7926). That section reads as follows: From and
after the filing of the order of determination in the district court the distribution of water by
the state engineer or by any of his assistants or by the water commissioners or their assistants
shall, at all times, be under the supervision and control of the district court, and said officers
and each of them shall, at all times, be deemed to be officers of the court in distributing water
under and pursuant to the order of determination or under and pursurant to decree of the
court. Added, Stats. 1927, pp. 336, 337.
In enacting that, from and after the filing of the order of determination, the distribution of
water shall at all times be under the supervision and control of the district court, the
legislature intended that the stream system, for the purposes of control and distribution,
should be deemed to be in custodia legis. State v. District Court, 52 Nev. 270, 277, 286 P.
418. We do not believe, however, that the language referred to was intended as an attempt by
the legislature to clothe the court with administrative functions which, by other sections of the
act, devolve upon the state engineer. The purpose of the act is to clothe the state engineer
with the administrative, and the courts with the judicial, powers and duties essential to the
control and distribution of the public waters of the state.
4. On behalf of the respondents, it is argued that the order of the lower court is supported
by the court's inherent power to instruct and direct its officers. Contrary to this contention,
this court has held that the water law and all proceedings thereunder are special in their
character and that the basis of jurisdiction of the court, in all matters pertaining to the
adjudication and control of the public waters of the state, must be found in the water law.
control of the public waters of the state, must be found in the water law. Ruddell v. District
Court, 54 Nev. 363, 17 P. (2d) 693.
5. In pursuing the remedy provided for in section 75 of the water law (N. C. L., sec. 7961),
it is required that the proceeding for the remedy be initiated in the proper court of the county
in which the matters affected, or a portion thereof, are situated. Such matters in this case
being situated in Pershing County, the district court in and for the county of Humboldt is
without jurisdiction to entertain the proceeding.
6. As the water law (Comp. Laws, sec. 7890 et seq.) does not contemplate such a
procedure in the district court as was inititiated by the company, the law does not confer the
right of appeal from the order in question. In re Water Rights, 49 Nev. 357, 365, 246 P. 692.
7-9. The petitioner, Andrew Jahn, is shown to be a water user named in the decree in the
water adjudication proceeding, and hence is beneficially interested here, and his injury is
shown by his affidavit. In the judgment of this court, neither of the applicants for a writ has
any other plain, speedy, and adequate remedy. The applicants were not required to first call to
the attention of the lower court its lack of jurisdiction. State v. District Court, 51 Nev. 206,
273 P. 659. That rule has been applied in cases involving the writ of prohibition. City of Los
Angeles v. District Court, 58 Nev. 1, 67 P. (2d) 1019. On principle, the same rule is
applicable in these proceedings.
NoteDucker, J., having disqualified himself, the Governor designated Hon. Wm. D.
Hatton, Judge of the Fifth Judicial District, to sit in his stead.
____________
58 Nev. 214, 214 (1937) Smith v. District Court
STATE OF NEVADA Ex Rel. ALFRED MERRITT SMITH, State Engineer of the State of
Nevada, Relator, v. THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, in and for the County of Humboldt, and Honorable J. M. LOCKHART,
Presiding Judge Thereof, and the HUMBOLDT LOVELOCK IRRIGATION LIGHT &
POWER COMPANY, A Corporation, Respondents.
No. 3209
November 18, 1937. 73 P. (2d) 502.
Original proceeding in certiorari by Alfred Merritt Smith, State Engineer of the State of
Nevada, to annul an order of the Sixth Judicial District Court of the State of Nevada, in and
for the county of Humboldt, instructing, requiring, and ordering said State Engineer to
distribute water in a certain manner, as being beyond and in excess of the jurisdiction of said
court and the presiding judge thereof. Petition granted.
Gray Mashburn, Attorney-General, W. T. Mathews, and W. Howard Gray, Deputy
Attorneys-General, for Relator:
It is a fundamental and universal rule of law that a court must have jurisdiction of the
matter before it and of the proceedings concerning that matter, or else its proceedings therein
will be a nullity. 7 R. C. L. 1031, sec. 59. And it is the primal duty of all courts to keep
strictly within their jurisdiction. Gamble v. Hanchett et al., 35 Nev. 319, 133 P. 936.
It may be conceded that the respondent court is a court of general jurisdiction concerning a
great many matters that can be submitted to it, as provided in sec. 6, art. VI, constitution of
Nevada. But unless prohibited by the constitutional provisions creating a court and providing
the jurisdiction thereof, such court may be given special and limited jurisdiction in certain
specified cases by the legislature. 7 R. C. L., secs. 3, 61, 105, pp.
pp. 975, 1032, 1068; 1 Bancft. Cd. Pr. & Rem., secs. 544, 653, pp. 805, 965. No such
prohibition is contained in the Nevada constitution.
It is well-settled law in this state that the water law, secs. 7890-7898 N. C. L., and all
proceedings thereunder are special in their character, and the provisions of such law not only
lay down the method of procedure but strictly limit it to that provided. Scossa v. Church, 46
Nev. 254, 205 P. 518; Humboldt L. & C. Co. v. District Court, 47 Nev. 396, 224 P. 612; In re
Water Rights, Humboldt River, 49 Nev. 357, 246 P. 692; Ruddell v. District Court, 54 Nev.
363, 17 P. (2d) 693.
It has been settled law in this state since 1865 that the statutory mode of acquiring
jurisdiction must be complied with. Paul v. Armstrong, 1 Nev. 82.
It necessarily follows that any person aggrieved by the acts of the state engineer in the
administration of the water law is bound by the provisions thereof, and, to question the acts of
the state engineer in the distribution of water, in the courts, such person must proceed in
accordance with the provisions of the law, and particularly with the provisions of section 75
thereof (sec. 7961 N. C. L.).
The only jurisdictional requirement met by the respondent company in the court below was
that it was an aggrieved person. It was and is the district court of Pershing County that had
and has jurisdiction of the matter contained in the respondent company's petition. And when
the respondent court entertained such petition and made and entered the order in question
here, such court was proceeding in a matter wholly beyond its jurisdiction. State v. Roberts, 8
Nev. 239; Ex Parte Gardner, 22 Nev. 280, 39 P. 570.
That there is a total lack of appeal from the order cannot be doubted. Sec. 10, ch. 32, p. 53,
Stats. 1937; Northern Nevada Loan Assoc. v. Cazier, 49 Nev. 115, 239 P. 395; Quinn v.
Quinn, 53 Nev. 67, 292 P. 621.
No hope of a plain, speedy, and adequate remedy was held out to the state engineer in
the order.
held out to the state engineer in the order. Pacific States security Co. v. District Court, 48
Nev. 53, 226 P. 1106; Nevada Douglass Gold Mines Inc. v. District Court, 51 Nev. 206, 273
P. 659.
If the same rule in regard to calling the inferior court's attention to its lack of jurisdiction is
to be applied in certiorari that is applied in prohibition, then the rule announced in City of Los
Angeles v. District Court, 58 Nev. 1, 67 P.(2d) 1019, should be applied here, that is, that
where lack of jurisdiction is clear and apparent on the face of the record, then petitioner need
not call the inferior court's attention to the alleged lack of jurisdiction.
Hawkins, Mayotte & Hawkins, for Respondents, The Sixth Judicial District Court and J.
M. Lockhart, as acting and presiding Judge thereof:
Under the statute the state engineer is an officer of the district court, and, as such officer,
like a receiver, is presumed to stand indifferent as between the parties who are beneficially
interested in, or the owners of, the property involved. Rehill v. East Newark (N. J. Law), 63
Atl. 81; Smalley v. Board (N. J. Law), 42 Atl. 748; State ex rel. v. Board of County
Commissioners, 23 Nev. 247, 45 P. 529.
What interest, may we ask, has the state engineer in the distribution of water? Is it not his
duty to follow the instructions of the court which has supervision and control over him? And
what substantial injury does this record show the state engineer to have suffered?
If the state engineer occupies the position analogous to a receiver, he has no right to a writ
of certiorari as against the judge and court charged with supervision and control of him. 53 C.
J. 142.
Upon receiving the order of the district court having control and supervision of the
distribution of the waters of the Humboldt River, it was, therefore, the duty of the state
engineer to obey that order, and, if for any reason he deemed it to be an improper order, to
appear before the court and judge, as he was invited to do, and make such suggestions to
the said court and judge as he deemed proper.
reason he deemed it to be an improper order, to appear before the court and judge, as he was
invited to do, and make such suggestions to the said court and judge as he deemed proper.
(The brief of Respondents in the companion case of Jahn v. District Court, just previously
reported, was also considered in this case, as far as applicable.)
OPINION
The above matter is a companion case to that of Andrew Jahn, Petitioner, v. Sixth Judicial
District Court of the State of Nevada, in and for the County of Humboldt, 58 Nev. 204, 73 P.
(2d) 499, this day decided.
As the opinion in that matter establishes the law in this proceeding, it is unnecessary to do
more than refer to it.
Petition granted.
NoteDucker, J. having disqualified himself, the Governor designated Honorable Wm.
D. Hatton, Judge of the Fifth Judicial District, to sit in his stead.
____________
58 Nev. 218, 218 (1937) F. & M. Bank v. Springmeyer
THE FARMERS & MERCHANTS NATIONAL BANK OF EUREKA, A National Banking
Association, Appellant, v. GEORGE SPRINGMEYER, Respondent.
No. 3175
December 2, 1937. 73 P. (2d) 825.
1. Estoppel.
Where manage of payee bank transferred note secured by collateral worth over six times amount thereof,
first to another bank of which he was also manager, and then to bank of which he was president, the latter
bank was barred, on ground of estoppel, from recovering on note from maker, who, without knowledge of
second transfer of note, was induced by manager of first transferee bank to transfer his account, for purpose
of securing note, from a solvent bank to the first transferee bank which subsequently became insolvent.
2. Bills and Notes.
In suit on note by bank in possession thereof, evidence that note was inclosed in letter to such bank from
transferor bank, and that such bank's account in transferor bank was charged with face value of note,
justified finding the title to note was acquired by transferor bank.
3. Banks and Banking.
Where president of plaintiff bank was the only one of its officers acquainted with every detail connected
with transfer of note to bank, bank, in suit on note, was chargeable with president's knowledge relating to
such transaction.
4. Bills and Notes.
A maker of note was entitled to recover overpayments of principal and interest, where they were made as
result of mistake of fact.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Action by the Farmers & Merchants National Bank of Eureka against George
Springmeyer, wherein defendant filed a counterclaim. From an order denying plaintiff's
motion for a new trial and from a judgment for defendant, plaintiff appeals. Affirmed.
Walter Rowson, for Appellant.
The evidence does not support the judgment, and the findings do not conform to the
evidence.
Plaintiff acquired the note in good faith, for value and in due course.
and in due course. There is absolutely no evidence of any infirmity such as could tend to
destroy the characteristics of the note as commercial paper. Sec. 4525 N. C. L.; Collins v.
Gilbert, 24 L. Ed. 170. Defendant gave his negotiable note, without condition, and was not
then concerned as to who might acquire it. And there is nothing in evidence to show that the
Reno National Bank was a party to the transaction, except in its limited capacity insofar as it
charged the note to plaintiff's account and attended to the collection of interest as plaintiff's
correspondent, between April 15, 1931, and November 7, 1932.
It is our contention that on the facts presented here the law does not create such an agency
that plaintiff bank is charged with the knowledge of its officer, Sheehan, by reason of the
alleged acts and conversations of said Sheehan as an officer of the Reno National Bank.
Strohecker v. Mutual B. & L. Ass'n., 55 Nev. 350, 34 P. (2d) 1076; Clarke v. Lyon County, 8
Nev. 181; Yellow Jacket S. M. Co. v. Stevenson, 5 Nev. 224; Ellis v. First Nat. Bank, 172 P.
281; Lawrence v. Tennessee Valley Bank, 141 So. 664.
Defendant's payments of principal and interest subsequent to the closing of the Reno
National Bank were not due to mistakes in fact.
George Springmeyer, in pro per., Sallie R. Springmeyer and Bruce R. Thompson, for
Respondent:
The facts as found by the trial court satisfy all the requisites of estoppel laid down by this
court in F. & M. Bank v. Eureka L. & S. Co., 56 Nev. 218, 49 P. (2d) 354, State ex rel.
Thatcher v. Justice's Court, 46 Nev. 133, 207 P. 1105, and similar cases.
It is clear that plaintiff was not a bona fide holder of the note, because throughout the
transaction plaintiff was the undisclosed principal, and as such was chargeable with notice of
all facts within the knowledge of its agents, J. Sheehan, Bank of Nevada, and Reno National
Bank.
Reno National Bank. The agents made representations to defendant; the agents knew that
defendant believed that the Reno National Bank was the holder of the note, and the agents
knew that in reliance upon their representations and because of their insistence, defendant
kept in the Reno National the amounts claimed as offsets, so that payment of the note would
not be pressed. As the plaintiff had the knowledge of its agents, plaintiff is not a holder in due
course, but is subject to the equity of set-off between defendant and any of plaintiff's agents.
Sec. 4521 N. C. L.
The trial court found that overpayments of interest were made by defendant because of
mistakes, in fact, of plaintiff in sending erroneous statements to defendant, and defendant's
believing and relying upon the statements, which warrants recovery of such overpayments.
Smart v. Valencia, 50 Nev. 359, 261 P. 655.
OPINION
This is an action to recover on a promissory note executed by the defendant. Plaintiff has
appealed from an order denying its motion for a new trial, entered after judgment in favor of
defendant, and from the judgment.
The parties will be referred to as plaintiff and defendant, as designated in the trial court.
The undisputed facts, so far as material, are:
On April 15, 1931, the defendant executed his note for $3,500, payable to Nevada Savings
& Trust Company. On that day the defendant received the sum of $3,500, which was
deposited to his credit in the Reno National Bank. At the time of this transaction, the Reno
National Bank and the Nevada Savings & Trust Company occupied the same offices and had
the same officers; J. Sheehan being at the time the vice president and manager of both of
said banks, and president of the plaintiff bank.
manager of both of said banks, and president of the plaintiff bank. On the day of the
execution of the note in question, this plaintiff had on deposit to its credit in the Reno
National Bank a sum greatly in excess of $100,000. On the day of the execution of the note,
the original payee of the note, acting through J. Sheehan, its manager, indorsed it in blank,
without recourse, and delivered it to the Reno National Bank; and on the same day said
last-named bank sent the note to plaintiff bank, accompanied by the following letter:
The Reno National Bank
Reno, Nevada
April 15, 1931.
Farmers & Merchants National Bank, Eureka, Nevada.
Gentlemen: We charge your account and enclose note of George Springmeyer dated April
15, 1931, $3500.00, secured by 14,400 shares of H. H. Springmeyer Land, Development &
Livestock Company, represented by certificate No. 28, which certificate we are enclosing
herewith. This stock we believe to be worth at least $1.50 per share.
We advised Mr. Springmeyer that in case we desired the note paid, we would give him 30
days notice.
Yours very truly,
JS:W J. Sheehan, Vice President.
Reg.
About June 1931 the defendant transferred an account which he had theretofore kept in the
First National Bank in Reno, which has at all times been solvent, to the Reno National Bank,
which last-mentioned bank failed to open for business on November 1, 1932, and thereafter a
receiver was appointed to take charge of the assets thereof and to liquidate the same. On the
1st day of November 1932 the defendant had on deposit to his credit in said Reno National
Bank the sum of $2,044.38, and there was at said time on deposit in said bank to the credit of
defendant's wife the sum of $151.12, which was community property, aggregating the sum
of $2,195.50.
$151.12, which was community property, aggregating the sum of $2,195.50. On November 7,
1932, the defendant interviewed the said Sheehan, in said Reno National Bank's offices, and
demanded that the amount of his and his wife's deposits be set-off against his said note, and
was then informed for the first time that the note in question had been assigned to the
plaintiff. It further appears that from time to time the Reno National Bank sent to defendant,
upon its regular form, at the top of which is printed Statement of Interest Due to Reno
National Bank, Reno, Nevada, a statement showing interest becoming due on said note; one
of which being a notice showing interest due from June 30, 1932, to December 31,1932.
The evidence shows without question that at all times mentioned the said Sheehan was an
officer of several banks.
In addition to the above undisputed facts, there is certain disputed testimony upon which
the court made findings in favor of the defendant, to which we will allude.
The defendant pleaded in his answer several defenses, among which were estoppel. He
also pleaded a cross-complaint. The trial court made findings of facts and conclusions of law
supporting said plea of estoppel and cross-complaint, and entered judgment accordingly.
The trial court found, inter alia, the following facts:
That all of the transactions relative to said note were had between Mr. Sheehan and
defendant; that the Reno National Bank was not a stranger to said transactions, in that on or
about June 15, 1931, it demanded payment thereof from defendant: that defendant, by reason
of a conversation with and a demand for payment by Mr. Sheehan as Vice President, Director
and Executive Manager of the Reno National Bank, and by reason of said loan and on
account of some question or doubt as to the soundness of the loan and of the amount of
protection for said Reno National Bank, transferred and changed his account from the First
National Bank in Reno and promised he would keep the account sufficiently large to
protect the Reno National Bank so that it would be unnecessary to sell the collateral
mentioned and described in the note, and in that said Reno National Bank continuously,
from April 15, 1931, until it was placed in the hands of a receiver on December 12, 1932,
mailed to defendant notices of the Reno National Bank that interest was due, and in that
the Reno National Bank accepted from defendant checks made payable to the Reno
National Bank" on account of principal and interest upon said note.
Reno and promised he would keep the account sufficiently large to protect the Reno National
Bank so that it would be unnecessary to sell the collateral mentioned and described in the
note, and in that said Reno National Bank continuously, from April 15, 1931, until it was
placed in the hands of a receiver on December 12, 1932, mailed to defendant notices of the
Reno National Bank that interest was due, and in that the Reno National Bank accepted from
defendant checks made payable to the Reno National Bank on account of principal and
interest upon said note.
The court further found:
* * * And defendant transferred his account from the First National Bank to the Reno
National Bank solely on account of and in reliance upon the said representations, which were
believed by defendant, and that solely as the result of such representations and the reliance
defendant placed thereon he was injured and suffered detriment in that otherwise he would
not have believed the Reno National Bank was the owner and holder of the note, and he
would not have transferred his account from the said First National Bank, which at all times
has been and is solvent, to the Reno National Bank, and in that otherwise he would not have
kept in said Reno National Bank the deposits amounting to $2,195.50 in his and his wife's
names, which are claimed by him as offsets to the said note upon which this action is brought,
and in that otherwise he would have protected himself in the premises either by keeping his
accounts as theretofore in the solvent First National Bank, or by making a loan elsewhere, or
by keeping his accounts in plaintiff's bank in order to protect himself in an offset. * * *
That plaintiff was not an innocent purchaser for value and is not a holder in due course of
said note and did not take the said note in good faith but on the contrary did take it
surreptitiously and with the intent and purpose of depriving defendant of his rights to set-off
and counter-claim his and his wife's deposits in the Reno National Bank, and plaintiff did
take said note with full notice and knowledge of the said oral agreement to the effect that
defendant should have thirty days' notice of demand for payment of said note, and
plaintiff, through the said J.
Reno National Bank, and plaintiff did take said note with full notice and knowledge of the
said oral agreement to the effect that defendant should have thirty days' notice of demand for
payment of said note, and plaintiff, through the said J. Sheehan as its President, Director and
Agent, did intentionally and deliberately represent to and hold out to defendant that the Reno
National Bank was the owner and holder of said note. That plaintiff, by permitting the Reno
National Bank and said J. Sheehan to carry on the said transactions without disclosing
plaintiff to be principal, enabled the said Reno National Bank and said J. Sheehan to
perpetrate upon defendant the fraud whereby defendant was led to believe and did believe
that the Reno National Bank was the owner and holder of the said note, and whereby and in
reliance upon which defendant changed his deposit from the First National Bank to the Reno
National Bank and at all times kept on deposit therein an amount of $2,195.50, claimed as an
offset, which amount defendant otherwise would not have kept on deposit in said Reno
National Bank.
The court also found in support of defendant's cross-complaint as follows: That on or
about May 2, 1934, plaintiff sent to defendant a written statement that the sum of $750.00
was then due on account of said note. That on or about June 1, 1934, plaintiff sent to
defendant a written statement that the sum of $110.33 was due on account of interest on said
note. That on or about December 1, 1934, plaintiff sent to defendant a written statement that
the sum of $90.00 was due on account of interest on said note. That in truth and in fact, said
sums of $90.00 and $110.33 never have been due on account of interest on said note, and the
sum of $630.00, instead of the sum of $750.00 was the total balance due on said note on
December 2, 1934, and the sum of $320.33, that being the aggregate of said amounts of
$90.00, $110.33 and $120.00, were overpayments made by defendant, who believed said
statements to be accurate and correct, and who made said payments in good faith and solely
because of his said mistakes of fact.
faith and solely because of his said mistakes of fact. That plaintiff has not paid the said sum
of $320.33, or any part thereof, to defendant.
The chief question for determination is whether the facts of the case warrant the
conclusion that the plaintiff is estopped, for if such be the case, plaintiff cannot recover.
The law of estoppel is well settled in this state, in Farmers & Merchants Nat. Bank v.
Eureka L. & S. Co., 56 Nev. 218, 49 P. (2d) 354, which simply follows the rule laid down in
previous decisions of this court. In passing upon this question, we must necessarily refer to
some of the facts above stated.
1. On the day defendant borrowed the money for which the note was given to Nevada
Savings & Trust Company, and at all times thereafter, J. Sheehan was vice president and
manager of said bank and of the Reno National Bank, and president of the plaintiff bank. All
negotiations and talks concerning this transaction were with Sheehan in person. On the day
the note was executed, the plaintiff had on deposit in the Reno National Bank a sum greatly in
excess of $100,000. On the same day, the Nevada Savings & Trust Company indorsed the
note without recourse and delivered it to the Reno National Bank. On that day, the last-named
bank, acting through Sheehan, sent the note to plaintiff and charged its account with $3,500.
In the letter of transmission, Sheehan stated that the 14,400 shares of stock deposited as
collateral to secure the note was worth at least $1.50 per share, or the total sum of $21,600. In
transferring this note to the plaintiff, Sheehan acted in behalf of both the Reno National Bank
and the plaintiff. It is clear that he alone acted for the plaintiff, because no other officer of the
plaintiff bank then knew of the existence of the note. Notwithstanding the fact that the $3,500
note was secured by collateral worth over six times the indebtedness, Sheehan, without
disclosing the transfer of the note, influenced the defendant to transfer his account from a
solvent bank to one which later went into liquidation, and influenced defendant to
continue to act under the misapprehension that the Reno National Bank was still the
holder of the note in question, as is evidenced by the notice to defendant,
above-mentioned, of interest payment due the Reno National Bank, very shortly prior to
its closing.
solvent bank to one which later went into liquidation, and influenced defendant to continue to
act under the misapprehension that the Reno National Bank was still the holder of the note in
question, as is evidenced by the notice to defendant, above-mentioned, of interest payment
due the Reno National Bank, very shortly prior to its closing. We do not think it necessary to
review the evidence in this case at length. A casual reading of it suffices to justify us in
saying there is substantial evidence to support the findings and conclusion of the trial court as
to the plea of estoppel.
2. In this connection, it is contended by appellant that the evidence does not show that the
Reno National Bank ever acquired title to the note in question. The letter of transmission to
plaintiff was from the Reno National Bank, and the account of the plaintiff in that bank was
charged with the face value of the note. We think the trial court was justified in its finding on
this point, from a consideration of all the evidence.
3. Counsel for appellant asserts that under the rule stated in Stroehecker v. Mutual B. & L.
Ass'n, 55 Nev. 350, 34 P. (2d) 1076, the plaintiff was not chargeable with knowledge of the
facts testified to. We took particular pains in that case to point out why the general rule there
invoked did not apply. The facts in this case show that Sheehan, the president of the plaintiff
bank, knew of every detail connected with the transaction; that he, in fact, alone of the
officers of plaintiff bank, knew the circumstances. If the plaintiff is not chargeable with
knowledge of all that transpired, then there can be no such thing as charging a corporation
with knowledge of facts gained by an officer. We think the trial court reached the correct
conclusion in this connection.
4. Coming to the question raised by the cross-complaint, having sustained the ruling of the
trial court on the question of estoppel, the only question in this connection is whether
defendant made the payments testified to as the results of a mistake of fact.
testified to as the results of a mistake of fact. The findings of the court are based upon
evidence which amply supports its conclusion. It needs no discussion.
For the reasons given, it is ordered that the judgment and order appealed from be affirmed;
respondent to recover his costs.
____________
58 Nev. 227, 227 (1937) Cornbleet v. District Court
BENJAMIN CORNBLEET, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, THOMAS F. MORAN, Presiding, JOHN DAVIDSON
and HARRY BAKER, Respondents.
No. 3207
December 3, 1937. 73 P. (2d) 828.
1. Insane Persons.
Rule of district court that no person shall be appointed guardian ad litem upon application of infant or
otherwise unless he be the general guardian of the infant or an attorney or other officer of the court, or is
fully competent to understand and protect rights of the infant, is applicable exclusively to the appointment
of guardian ad litem for an infant, as against contention that words or otherwise shows that rule
contemplates also a guardian ad litem for an insane person (Rules of the District Court, rule 29).
2. Certiorari.
In certiorari proceeding to review an order appointing guardian ad litem of an insane person under
statutes, where return showed that court regularly exercised jurisdiction in appointing the guardian,
sufficiency of evidence upon which court acted in making appointment could not be reviewed (Comp.
Laws, secs. 8549, 8550).
3. Certiorari.
In certiorari proceeding to review an order appointing guardian ad litem of insane person under statutes,
evidence showing guardian appointed was unfit could not be reviewed, since the fitness of guardian is left
to the court's discretion and may not be inquired into by certiorari (Comp. Laws, secs. 8549, 8550).
4. Certiorari.
In certiorari proceeding to review an order appointing guardian ad litem of an insane person under
statutes, receiving of evidence as to fitness of guardian was not a jurisdictional requisite reviewable under
certiorari (Comp. Laws, secs. 8549, 8550).
Original proceeding in certiorari by Benjamin Cornbleet against the Second Judicial
District Court of the State of Nevada, Thomas F. Moran, presiding, and others. Writ denied.
R. K. Wittenberg, for Petitioner:
In this country it has been universally held that a person having an adverse interest should
not be appointed guardian ad litem for an insane person. Denny v. Denny (Mass.), 8 Allen
311; Knight v. Waggoner (Tex.), 214 S.W. 690; Hewitt's Case (Md.), 3 Bland 184; 10 Enc.
Plead. & Pr. 1232; In re Van Beuren, 13 N. Y. S. 261.
Logically, there is no distinction between the appointment of guardians ad litem for
incompetents and of guardians ad litem for minors. Woerner, American Law of Guardianship,
481.
In the case of infants, district court rule 29 has clearly codified the pre-existing rules of
law relating to the appointment of guardians ad litem for infants. Such rule could be liberally
construed to apply, also, by its terms, to the appointment of guardians ad litem for insane
incompetents. This rule specifically provides that such guardian ad litem shall not be
connected in business with the attorney or counsel of the adverse party.
Where the district court, having both jurisdiction of the subject matter and of the parties,
purports to go ahead in disregard of, or contrary to, the rules laid down in statute or rule of
law or decision, it will be determined that no jurisdiction exists to proceed, and the
proceedings will be set aside on certiorari. Phillps v. Welch, 12 Nev. 158; Strait v. Williams,
18 Nev. 430, 4 P. 1083; Radiovitch v. Western Union, 36 Nev. 341, 135 P. 920; Yowell v.
District Court, 39 Nev. 423, 159 P. 632; Abel v. District Court, 58 Nev. 89, 71 P. (2d) 111;
Slafsky v. District Court, 54 Nev. 328, 15 P. (2d) 682; Williams v. District Court, 48 Nev.
459, 233 P. 843.
The order of appointment is void in that it was made without the court receiving any prior
evidence of John Davidson's qualifications to hold such an appointment. Daniel's Chancery
Practice (8th ed.), vol. 1, p. 121; 42 C. J. 493, 494. In the recent case of Abel v. District
Court, supra, this court held that an order changing the custody of children, made without
receiving any evidence in support of it, was void on certiorari. There is no logical difference
between an order changing the custody of children, where changed circumstances are
required, and an order appointing a qualified person as guardian ad litem, where his fitness
and lack of adverse interest must exist.
Wm. M. Kearney, for Respondent Harry Baker, and John Davidson, for the Second
Judicial District Court of the State of Nevada, Thomas F. Moran presiding, and pro se.:
After a hearing on the merits by the court below, wherein all of the objections now urged
were heard, it was decided that John Davidson was properly qualified as guardian ad litem.
Counsel for petitioner would have this court weight the evidence presented, which may not
properly be done on certiorari. Sec. 9237 N. C. L.; Mack v. District Court, 50 Nev. 318, 258
P. 289.
Authority for the appointment of a guardian ad litem for an insane defendant is given by
sections 8549 and 8550 N. C. L. There can be no question but that the respondent court had
jurisdiction to appoint a guardian ad litem for the insane defendant, and to determine who that
guardian should be. McKibbin v. District Court, 41 Nev. 431, 171 P. 374.
This court has many times stated that rules of court have the same force and effect of
statutes. It naturally follows that rules of court are subject to statutory construction. Helbush
v. Helbush (Cal.), 290 P. 18. Judged by rules of statutory construction, it is clear that district
court rule 29 applies only to infants. No reference is made, either expressly or by implication,
to guardians for insane defendants.
for insane defendants. It is well settled in this state that where the language of a statute is
plain, its intention must be deduced from the language, and the courts have no authority to go
beyond it or behind it. State v. Beemer, 51 Nev. 192, 272 P. 656; State v. Jepson, 46 Nev.
193, 209 P. 501; Eddy v. State Board, 40 Nev. 329, 163 P. 245. This is in accord with the
maxim of construction to the effect that what is named excludes that which is not named. Ex
Parte Arascada, 44 Nev. 30; In re Bailey's Estate, 31 Nev. 377.
The method of appointment provided by sections 8549 and 8550 N. C. L. was strictly
followed. There is no requirement of the filing of affidavits.
OPINION
This is an original proceeding in certiorari.
The return shows an action for divorce instituted by Harry Baker against Tillie Baker. The
complaint alleged that the wife had been guilty of extreme cruelty, and that for more than two
years next preceding the filing thereof, she had been, and now is, an insane person, and
prayed for the appointment of some competent person residing in the city of Reno, county of
Washoe, Nevada, as guardian ad litem for defendant.
On July 2, 1937, in response to an affidavit filed in the action by the plaintiff averring
insanity of the defendant as alleged in the complaint and praying for the appointment of a
guardian ad litem for her, the court made an order appointing John Davidson of said city of
Reno as such guardian.
On July 13, 1937, the trial court denied a motion made by petitioner, a brother of
defendant, to vacate the order appointing said Davidson as guardian ad litem. On the hearing
of this motion, counsel for petitioner introduced in evidence the latter's petition filed July 8,
praying for his appointment as guardian ad litem for defendant, in which it was alleged,
among other things, that he was her brother, and was on the 5th day of May 1937, by the
probate court of Cook County, State of Illinois, appointed conservator of said defendant,
then and now residing in said Cook County, and was now her duly qualified, acting
conservator in the State of Illinois.
his appointment as guardian ad litem for defendant, in which it was alleged, among other
things, that he was her brother, and was on the 5th day of May 1937, by the probate court of
Cook County, State of Illinois, appointed conservator of said defendant, then and now
residing in said Cook County, and was now her duly qualified, acting conservator in the State
of Illinois.
Petitioner contends that the court was without jurisdiction to appoint Davidson for the
following reasons: First, because no evidence was received as to his fitness before the
appointment; second, because the evidence on the hearing to vacate the order of appointment
on account of his business relationship with the attorney for plaintiff showed him to be
disqualified.
In regard to the last point, the testimony of Davidson shows that he was connected in
business with William M. Kearney, attorney for plaintiff, in that he was an attorney at law of
Reno, Nevada, and frequently looked up law for Kearney; that they occupied adjoining law
offices in the Gazette building of that city; that they used the same reception room; that the
rent for the office he occupied was paid by Kearney; and that he, Davidson, paid no rent for
the reception room.
Petitioner insists that rule 29 of rules of the district court is applicable to the fact of a
business relation shown by the foregoing testimony, and deprived the court of jurisdiction to
appoint Davidson. The rule has no application. It reads: No person shall be appointed
guardian ad litem, either upon the application of the infant or otherwise, unless he be the
general guardian of the infant, or an attorney, or other officer of this court, or is fully
competent to understand and protect the rights of the infant; has no interest adverse to that of
the infant, and is not connected in business with the attorney or counsel of the adverse party,
nor unless he be of sufficient pecuniary ability to answer to the infant for any damage which
may be sustained for his negligence or misconduct in defense of the suit.
1. The rule is applicable exclusively to the appointment of a guardian ad litem for an
infant. The words or otherwise, stressed by petitioner as warranting a conclusion favorable
to his contention that the rule contemplates also a guardian ad litem for an insane person, are
not susceptible of such interpretation. They refer to a situation in which the application may
be made in the infants behalf. The appointment of a guardian ad litem for an insane person in
an action or proceeding is governed by sections 8549 and 8550 N. C. L., which read in part:
When an infant, or an insane or incompetent person is a party, he must appear either by
his general guardian or by a guardian ad litem appointed by the court in which the action is
pending, in each case. A guardian ad litem may be appointed in any case, when it is deemed
by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient
to represent the infant, insane, or incompetent person in the action or proceeding,
notwithstanding he may have a general guardian and may have appeared by him.
When a guardian ad litem is appointed by the court, he must be appointed as follows: * *
*
3. When an insane or incompetent person is a party to an action or proceeding, upon the
application of a relative or friend of such insane or incompetent person, or of any other party
to the action or proceeding.
2. The power to hear an application for and appoint a guardian ad litem for an insane party
in an action or proceeding is unqualifiedly given by these sections. It appears from the return
that the court regularly exercised its jurisdiction conferred by them in appointing Davidson.
Consequently, the sufficiency of the evidence which petitioner claims shows that the court
acted without authority in making the appointment will not be reviewed. There are no
jurisdictional facts in dispute.
3. Petitioner contends that the evidence shows Davidson to have an adverse interest to the
defendant, and presents authorities to the effect that such a person is disqualified to act as
a guardian ad litem for an insane party.
presents authorities to the effect that such a person is disqualified to act as a guardian ad litem
for an insane party. But the fitness of such a guardian is, by the foregoing sections, left to the
discretion of the court, and is not elsewhere made a fact upon which jurisdiction depends. The
exercise of discretion, or its abuse, may not be inquired into by certiorari. In re Wixom, 12
Nev. 219; State v. District Court, 26 Nev. 253, 66 P. 743; State v. McFadden, 43 Nev. 140,
182 P. 745; Mack v. District Court, 50 Nev. 318, 258 P. 289.
We have reviewed the cases from this jurisdiction cited by counsel for petitioner, but none
of them sustains his position. Phillips v. Welch, 12 Nev. 158, cited by him, militates against
his contention; the court holding that the affidavit for contempt being sufficient to give the
lower court jurisdiction, the supreme court could not examine the question whether the order
adjudging Sweeney guilty of contempt was sustained by the evidence.
Strait v. Williams, 18 Nev. 430, 4 P. 1083, confirms the rule of Phillips v. Welch, supra. In
the other cases cited, steps essential to jurisdiction were not taken.
4. Certiorari is likewise unavailable as to petitioner's first point that the court received no
evidence as to Davidson's qualifications to act as guardian ad litem for defendant before the
appointment. The receiving of evidence as to such fitness is not a jurisdictional requisite.
The writ should be denied.
It is so ordered.
____________
58 Nev. 234, 234 (1938) Tonopah & Goldfield R.R. Co. v. Nev.-Cal Transp. Co.
TONOPAH & GOLDFIELD RAILROAD COMPANY, A Corporation, RAILWAY
EXPRESS AGENCY, INC., A Corporation, PACIFIC MOTOR TRANSPORT
COMPANY, A Corporation, and SOUTHERN PACIFIC COMPANY, A Corporation,
Respondents, v. NEVADA-CALIFORNIA TRANSPORTATION COMPANY, INC., A
Corporation, Appellant.
No. 3147
February 2, 1938. 75 P. (2d) 727.
Every act of the legislature is presumptively constitutional.
An act will not be held unconstitutional unless it is clearly so.
3. Statutes.
The statute relating to the use of the public highways of the state in the carrying of persons and property
thereon in motor vehicles held not unconstitutional for defect in title as embracing two subjects, other
matter stated in the title in addition to the one subject being merely incident thereto and in noway
misleading or confusing. Stats. 1933, c. 165; Const. art. 4, sec. 17.
4. Statutes.
An act may cover every matter properly connected with the subject embraced in the title. Const. art. 4,
sec. 17.
5. Statutes.
The subject of an act, as used in constitutional requirement that a law shall embrace but one subject
which shall be expressed in its title, is the matter or thing forming the ground work of the act in question.
Const. art. 4, sec. 17.
6. Statutes.
A conflict between the constitution and a statute should be palpable and the objections grave before the
judiciary should disregard the statute on sole ground that it embraces more than one subject. Const. art.
4, sec. 17.
7. Statutes.
A statute is not unconstitutional as covering matters not embraced in its title if all the provisions are
reasonably necessary as means to attain the object of the act indicated by the subject expressed. Const.
art. 4, sec. 17.
8. Statutes.
The subject of a statute may be as comprehensive as the legislature chooses to make it, provided it
constitutes a single subject in the sense that the several matters are germane to each other as means to ends
or of different subdivisions of the same subject or as being designed for the same purpose,
or designated by the same terms.
the same subject or as being designed for the same purpose, or designated by the same terms. Const. art.
4, sec. 17.
9. Statutes.
A provision of an act is not void because not expressed in the title unless it has no connection with or
relation to the title. Const. art. 4, sec. 17.
10. Statutes.
Provision in statute requiring a common motor carrier in intrastate commerce to obtain a certificate of
convenience and necessity was not unconstitutional as covering matter not embraced in title which declared
the subject of the act to be declarative of the purpose and policy of the legislature relative to use of the
public highways of the state in carrying persons and property thereon in motor vehicles. Stats. 1933, c. 165,
sec. 7; Const. art. 4, sec. 17.
On appeal from judgment enjoining common motor carrier from operating on the public highways
without a certificate of convenience and necessity, alleged ineligibility of all but one of plaintiff carriers to
prosecute suit for injunction, because none but that one had a certificate of convenience and necessity, did
not preclude affirmance of judgment. Stats. 1933, c. 165; Stats. 1919, c. 109.
Appeal from Second Judicial District Court, Washoe County, B. F. Curler, Judge.
Suit by the Tonopah & Goldfield Railroad Company and others against the
Nevada-California Transportation Company, Incorporated, to enjoin the defendant from
operating motor vehicles on the public highways of Nevada between certain points in
competition with plaintiffs. From an adverse judgment, the defendant appeals. Affirmed.
James T. Boyd, for Appellant:
There can be no question but what the act of 1933 is an excise act for the purpose of
securing sufficient funds for keeping the public highways of this state in good repair for the
better protection of the traveling public. This is set out in the declaratory part of the act.
Nowhere in the title of the act is there any reference to the motor vehicle engaged as a
common carrier being designated as a public utility, or that it is required to or must secure a
certificate of public convenience or necessity; and nowhere in the title is there any
reference of an adoption or otherwise of the public utility act of this state.
secure a certificate of public convenience or necessity; and nowhere in the title is there any
reference of an adoption or otherwise of the public utility act of this state. If there was, then
the act would embrace not one, but two subject matters, one relating to the securing of money
for the support of the highways, and the other a regulation of public utilities, whether using
the highways or not. Lewis-Sutherland Statutory Construction (2d ed.), vol. I, secs. 118, 119,
120 and 170; State v. Commissioners of Washoe County, 22 Nev. 399, 41 P. 145; Ex Parte
Mantell & Raigen, 47 Nev. 95, 216 P. 509.
The respondents are not in position to complain. The permit granted to the Pacific Motor
Transport Company does not give it any right under the public utility act, as it neither owns
nor operates a transportation line. The rest of the respondents frankly admit that they have no
certificate of convenience or necessity, but allege they have a vested right by reason of being
organized and carrying on their business prior to the adoption of the public utility act of 1919.
Section 7 of that act (sec. 6106 N. C. L.), clearly requires that all public utilities shall secure a
certificate of public convenience and necessity. If the section is unconstitutional with
reference to existing public utilities at the time of the adoption of the act, then it is
unconstitutional for all purposes, for the reason that there is no proviso in it excepting
existing public utilities from the operation of the act. Cooley's Con. Lim. (7th ed.), 246;
Lewis-Sutherland Statutory Construction (2d ed.), vol. II, sec. 705.
Walter Rowson and Brown & Belford, for Respondents:
We submit that the clause providing for the licensing of certain carriers thereon by the
public service commission of Nevada and providing and defining its duties in relation
thereto, in the title of the 1933 act, even without the other portions of the title, is amply
broad to cover the requirement for the issuance of a certificate of convenience and necessity,
for such a certificate is most certainly a license.
of convenience and necessity, for such a certificate is most certainly a license. It is also
submitted that when the act is generally described as declaring the purpose and policy of the
legislature relative to use of the public highways of the state in the carrying of persons and
property thereon in motor vehicles, the requirement as to certificates is covered.
Lewis-Sutherland Statutory Construction (2d ed.), sec. 116; 25 R. C. L. p. 844; McNeeley v.
Oil Co., 52 W. Va. 616, 44 S. E. 508, 62 L. R. A. 572; Ex Parte Mantell, 47 Nev. 95, 216 P.
509; Ex Parte Cerfoglio, 44 Nev. 343, 195 P. 96.
The agreed statement of facts shows that with the exception of Pacific Motor Transport
Company (which has obtained a certificate of convenience and which would therefore be
entitled to maintain this action and obtain an injunction against the appellant), the
respondents and their grantors and predecessors in interest were for many years prior to the
enactment of the public utilities act of 1919 engaged in operations in this state in both
interstate and intrastate commerce. Therefore we submit that each of them had obtained a
franchise so to act, and that such franchises were and are property. 51 C. J. 412; New York v.
Bryan, 196 N. Y. 158, 89 N. E. 467. And if, under section 36 1/2 of the act of 1919, the state
attempted to deprive them of their franchises which they had accepted and acted upon, such
statute would impair the obligations of a contract, in violation of paragraph I, sec. 10, art. I of
the constitution of the United States. It would also violate section 1 of the fourteenth
amendment, in that it would deprive them of property without due process of law.
OPINION
This suit was instituted by the respondents to enjoin appellant from operating motor
vehicles on the public highways of Nevada between Reno and Tonopah, and intermediate
points, in competition with respondents, upon the ground that appellant had not obtained
from the public service commission a certificate of convenience and necessity, as required
by chapter 165, Stats.
highways of Nevada between Reno and Tonopah, and intermediate points, in competition
with respondents, upon the ground that appellant had not obtained from the public service
commission a certificate of convenience and necessity, as required by chapter 165, Stats.
1933, and chapter 109, Stats. 1919.
From an adverse judgment the defendant has appealed.
The parties entered into an agreed statement of facts, from which it appears that the
Tonopah & Goldfield Railroad Company is a corporation, organized pursuant to an act of our
legislature, approved March 22, 1865, and ever since November 1, 1905, has been engaged in
the business of owning and operating a standard gauge, steam railroad as a common carrier,
in both intrastate and interstate commerce, between the town of Mina and the town of
Goldfield, Nevada; that the Southern Pacific Company has been a corporation ever since
1884, and prior to 1905 became and ever since has been qualified to do business in this state,
and ever since said year said company has owned and operated a standard gauge steam
commercial railroad, engaged in both intrastate and interstate commerce for hire, between
Reno, Nevada, and Mina, Nevada, as a common carrier, at which last-named place it connects
with the plaintiff Tonopah & Goldfield Railroad Company. It is likewise stipulated that the
Railway Express Agency, Inc., is a corporation organized under the laws of Delaware, and
ever since January 1929, has been and now is qualified to, and ever since November 1, 1905,
it or its grantors and predecessors in interest has been doing business in this state, in the
carriage of property for hire, both in intrastate and interstate commerce, between the city of
Reno and the city of Tonopah, Nevada. It is also stipulated that the plaintiff Pacific Motor
Transport Company is a corporation and ever since August 1, 1932, qualified to do and doing
business as a common carrier for hire between the city of Reno and the town of Goldfield,
Nevada, and that prior to engaging in said business it applied for and obtained from the
public service commission of Nevada a certificate of public convenience and necessity for
engaging in business between the city of Reno and the town of Goldfield, Nevada.
and obtained from the public service commission of Nevada a certificate of public
convenience and necessity for engaging in business between the city of Reno and the town of
Goldfield, Nevada.
It is further stipulated that defendant ever since September 1, 1931, has been a corporation
duly organized and existing under the laws of the State of Nevada; that said company has, on
two separate occasions, applied to the public service commission of Nevada for a certificate
of public convenience, authorizing it to engage in the business of transporting, by trucks and
automobiles, property for hire, along the highways of Nevada, as a common carrier, between
Reno and Goldfield, Nevada, and intermediate points; that each of said applications was
denied; that in all other respects the defendant has complied with the laws of Nevada.
It is further stipulated that unless restrained by order of court the defendant will continue
to transport property for the public in intrastate commerce for compensation, over the public
highways, as prior to the signing of the statement of facts.
It is the contention of respondents that pursuant to the act of 1933 the judgment should be
affirmed, but in case that act he held unconstitutional, as contended by appellant, the act of
1919 is still in force and effect, and for that reason the judgment must be affirmed.
If we find that the 1933 act is constitutional, it will be unnecessary to consider the prior
act.
As we understand the contention of appellant as to the act of 1933, it is that it is
unconstitutional in that the title of the act embraces two subjects, contrary to article 4,
section 17, of the constitution, and, further, that the subject matter of section 7 of the act is
not embraced in the title of the act.
1, 2. There is no better known rule than that every act of the legislature is presumed to be
constitutional, unless it be the one to the effect that no act will be held unconstitutional unless
it is clearly so. State v. Board of County Comr's.,
of County Comr's., 21 Nev. 235, 29 P. 974; State v. Westerfield, 24 Nev. 29, 49 P. 554.
3. The title of the act of 1933 reads: An Act declaring the purpose and policy of the
legislature relative to use of the public highways of the state in the carrying of persons and
property thereon in motor vehicles, defining such vehicles and public highways, providing for
the licensing of certain carriers thereon by the public service commission of Nevada and
providing and defining its duties in relation thereto, providing license fees for the operation of
motor vehicles in carrier service for hire and other service on the public highways of the state,
providing liability insurance in certain cases, providing for an official inspector and salary
and allowances therefor, providing penalties for the violation hereof and other civil actions
for the recovery of license fees herein, providing for the weighing of motor vehicles for
license purposes by public weighmasters, and repealing all acts and parts of acts and certain
acts of the legislature in conflict herewith; and other matters properly connected therewith.
We are clearly of the opinion that the title of the act quoted states but one subject, and that
is the purpose and policy of the legislature relative to use of the public highways of the state
in the carrying of persons and property thereon in motor vehicles. The other matters stated in
the title are merely incident to the real subject, and are in noway misleading or confusing.
Klein v. Kinkead, 16 Nev. 194; Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879.
4, 5. If the title of the act had contained no more than that portion quoted, it would have
been sufficient, for the section of the constitution in question contemplates that an act may
cover every matter properly connected with the subject embraced in the title. We have often
pointed out the purpose of the provisions of the constitution in question. We did so in Ex
Parte Cerfoglio, 44 Nev. 343, 195 P. 96, and in Ex Parte Mantell, 47 Nev. 95
47 Nev. 95, 216 P. 509. In the latter case we at some length dealt with the question of what
constitutes the subject of an act, and pointed out that the subject of an act is the matter or
thing forming the groundwork of the act in question. Clearly, the groundwork of the act in
question in this case is the purpose and policy of the legislature relative to the use of the
public highways of the state in the carrying of persons and property thereon in motor vehicles.
6. In the case of State ex rel. v. Board of Commissioners of Humboldt County, 21 Nev.
235, 29 P. 974, 975, the same contention was rejected; the court, after stating the purpose of
the requirement, stated: The objections should be grave, and the conflict between the
constitution and statute palpable, before the judiciary should disregard a legislative enactment
upon the sole ground that it embraces more than one object.
As we understand, it is contended that section 7 of the act covers matter not embraced in
the title. This section provides that it shall be unlawful for a common motor carrier of
property or passengers to operate as a carrier of intrastate commerce without first obtaining
from the public service commission a certificate of convenience and necessity.
The question which is involved in the consideration of this contention has often been
before this court. One of the early cases was that of Humboldt County v. County
Commissioners of Churchill County, 6 Nev. 30. The title of the act in question in that case
read: An Act to amend an Act of the Legislative Assembly of the Territory of Nevada
entitled An Act to create Counties and establish the boundaries thereof.' Stats. 1869, p. 88,
c. 41. The body of the act provided that the board of county commissioners of Churchill
County should annually for five years set aside three thousand dollars out of the revenues of
the county, to be paid to Humboldt County each year. The only question involved in the case
was whether the title of the act was broad enough to warrant the authorizing of the setting
aside and payment of the $3,000 annually, as provided in the body of the act.
broad enough to warrant the authorizing of the setting aside and payment of the $3,000
annually, as provided in the body of the act. The court upheld the act.
7. The supreme court of California, in Robinson v. Kerrigan, 151 Cal. 40, 90 P. 129, 133,
121 Am. St. Rep. 90, 12 Ann. Cas. 829, in disposing of the contention now under
consideration, said: If it were necessary to mention every subdivision of the general subject
of an act in the title, to the extent here claimed, our statutes would present a somewhat
ludicrous appearance. The statement of the subject in the title would generally occupy almost
as much space as the act itself. Furthermore, if subjects, as intended by the Constitution, must
be so minutely subdivided, it would be impracticable to enact any comprehensive law on any
general subject, by reason of the necessity of dividing it into so many separate acts. The
provision must receive, and it has received, a more liberal construction. The word subject' is
given a broader meaning. People v. Mullender, 132 Cal. 217, 64 P. 299. All the provisions
objected to as constituting a different subject are reasonably necessary as means for attaining
the object of the act indicated by the subject which is expressed, and hence they are
considered as included in the title, as subdivisions of the general subject there stated.
8. Considering the identical contention, the supreme court of Minnesota, in Johnson v.
Harrison, 47 Minn. 575, 50 N. W. 923, 924, 28 Am. St. Rep. 382, said: The subject [of an
act] may be as comprehensive as the legislature chooses to make it, provided it constitutes, in
the constitutional sense, a single subject, and not several. The connection or relationship of
several matters, such as will render them germane to one subject and to each other, can be of
various kinds, as, for example, of means to ends, of different subdivisions of the same
subject, or that all are designed for the same purpose, or that both are designated by the same
term. Neither is it necessary that the connection or relationship should be logical; it is enough
that the matters are connected with and related to a single subject, in popular
signification.
logical; it is enough that the matters are connected with and related to a single subject, in
popular signification. The generality of the title of an act is no objection, provided only it is
sufficient to give notice of the general subject of the proposed legislation and of the interests
likely to be affected.
9. In People v. Stitt, 280 Ill. 553, 117 N. E. 784, 789, the court expresses the same idea as
stated above, and also says: To render a provision of an act void because it was not
expressed in the title it must have no connection with or relation to the title.
In Van Pelt v. Hillard, 75 Fla. 792, 78 So. 693, 698, L. R. A. 1918e, 639, the court, in
disposing of the identical contention at length, said: If the title to the act fairly gives notice
of the subject of the act, so as to reasonably lead to an inquiry into the body of the bill, it is all
that is necessary. The title need not be an index to the contents of the bill.
The supreme court of Idaho, in Boise City v. Baxter, 41 Idaho 368, 238 P. 1029, 1033,
after dwelling at some length on the point, says: All that is necessary is that the act shall
embrace some one general idea, and its parts be so connected with and related to each other,
either logically or in popular understanding, as to be parts of and germane to one general
subject.
The supreme court of California, in Re Wellings' Estate, 192 Cal. 506, 221 P. 628, 634, in
determining the identical question now under consideration, stated: The general purpose of a
statute being declared, the details provided for its accomplishment will be regarded as
necessary incidents.
In Petty v. Pheonix, etc., Co., 150 Tenn. 292, 264 S. W. 353, in dealing with this subject,
the court says: Where the subject of a statute is sufficiently stated in the title, the manner,
modes, means, or instrumentalities of its enforcement, administration, or accomplishment
may be embraced in its body, though not recited or stated in the title.
A few of the many cases in harmony with the views above quoted are: State v. Davey, 27
Ariz. 254, 232 P. 884; Lowdermilk v. People, 70 Colo. 459, 202 P. 118; Corenblum v. State,
153 Ga. 596, 113 S. E. 159; City of Richmond v. Pace, 127 Va. 274, 103 S. E. 647; McNeal
v. State of Alabama, 18 Ala. App. 311, 92 So. 95, affirmed 207 Ala. 712, 92 So. 921.
For a great array of authorities supporting the above views, we refer to Third Decennial
Digest, vol. 25, Statutes, 108 to 111, pp. 275 to 288.
10. We have pointed out that the subject of the act in question is the purpose and policy
of the legislature relative to use of the public highways of the state in the carrying of persons
and property thereon in motor vehicles.
The title of the act in question, after setting forth the real subject of the act, as we have
pointed out, also sets forth additional matter, which is germane to the subject matter of the
act. Had this not been contained in the title of the act, the matter covered in section 7 being
germane to the subject of the act, no constitutional objection can be successfully urged to the
title. The subject of the act being a declaration of purpose and policy of the legislature, as
pointed out, it is broad and comprehensive enough to reasonably lead to an inquiry into the
body of the bill. This is all that is necessary, as shown above.
For the reasons given, the constitutional objections must be held to be without merit.
Being of the opinion that the 1933 act is valid, and that it is complete within itself, we
need not consider the act of 1919.
11. It is also contended that none of the plaintiffs except the Pacific Motor Transport
Company have obtained from the public service commission a certificate of convenience and
necessity, hence are in no position to prosecute this suit. If it be true that none of the plaintiffs
except Pacific Motor Transport Company can prosecute this suit, which we do not concede in
view of the fact that such plaintiffs are engaged as common carriers in interstate
commerce, the mere fact that the Pacific Motor Transport Company did receive such
certificate is sufficient, in view of our conclusions as to the constitutional questions, to
warrant an affirmance of the judgment.
fact that such plaintiffs are engaged as common carriers in interstate commerce, the mere fact
that the Pacific Motor Transport Company did receive such certificate is sufficient, in view of
our conclusions as to the constitutional questions, to warrant an affirmance of the judgment.
It is ordered that the judgment appealed from be affirmed.
____________
58 Nev. 245, 245 (1938) Hough v. Roberts Mining & Milling Co.
M. J. HOUGH, Appellant, v. ROBERTS MINING AND MILLING COMPANY, a
Corporation, Respondent.
No. 3165
February 2, 1938. 75 P. (2d) 731.
Under statutes providing for justification of sureties on appeal, where first-named surety did not justify in
response to appellee's exception to sufficiency, and no notice was given appellee upon filing of second
undertaking by surety company which did not justify as required, supreme court would regard appeal as if
no undertaking was given. Comp. Laws, secs. 7627, 7630; Stats. 1935, c. 90, sec.24.
Under statutes relating to justification of sureties on appeal, surety company, though not required to
justify under statute referring to justification of individual sureties, must justify under statute providing a
method of such justification. Comp. Laws, secs. 7630, 9032.
Under statute providing for justification of sureties on appeal, failure of surety company to justify after
notice to respondent was not merely a defect or informality in appellate procedure which could be rectified
by appellant, but was a failure to comply with a jurisdictional requirement. Comp. Laws, sec. 7630; Stats.
1935, c.90, secs. 24, 27.
Under statute providing that no appeal shall be dismissed for insufficiency of notice of appeal or
undertaking, provided that an undertaking approved by justices of the supreme court is filed in supreme
court before the hearing upon motion to dismiss the appeal, where no undertaking approved by justices of
the supreme court was filed before hearing upon motion to dismiss appeal for failure to justify
sureties, remedial statute would not apply.
to dismiss appeal for failure to justify sureties, remedial statute would not apply. Comp. Laws, sec. 7630;
Stats. 1935, c. 90, secs. 24, 27.
Under statute providing that no appeal should be dismissed for irregularity not affecting jurisdiction of
the court, where such irregularity may be cured by amendment, failure of appellant to comply with
provisions respecting filing of surety company undertaking on appeal could not be cured, since matter was
jurisdictional. Comp. Laws, sec. 7630; Stats. 1935, c. 90, secs. 24, 27.
It is the duty of the supreme court to dispose of appealed cases on the merits when that can be lawfully
done.
Under statute providing that upon failure of surety on appeal to justify within time limited, appeal should
be regarded as though undertaking had not been given, an appellant failing to comply with its terms loses
the benefit of his appeal, since the statute is peremptory. Comp. Laws, secs. 7630, 9032; Stats. 935, c. 90,
sec. 24.
Appeal from Third Judicial District Court, Eureka County; J. M. Lockhart, Judge.
Action by M. J. Hough against Roberts Mining & Milling Company. From an order
granting a new trial, plaintiff appeals. On motions to dismiss appeal. Dismissed.
James T. Boyd, for Appellant.
Undertaking on appeal shall be filed within five days after notice of appeal is filed. Stats.
1935, p. 199, sec. 16.
Objections to sufficiency of sureties must be filed within five days, and the sureties, or
other sureties, must justify before the judge of the court below, or the clerk, within five days.
Stats. 1935, p. 201, sec. 24.
No appeal shall be dismissed by the supreme court for any defect or informality in the
appellate proceedings until the appellant has been given an opportunity, upon such terms as
may be just and with a reasonable time to be fixed by the court, to amend or correct such
defect. Stats. 1935, p. 202, sec. 27.
An appeal may be taken: * * *
2. From an order granting or refusing a new trial, or granting or refusing to grant or
dissolving or refusing to dissolve an injunction, or appointing or refusing to appoint a
receiver, or dissolving or refusing to dissolve an attachment, or changing or refusing to
change the place of trial, and from any special order made after final judgment, within sixty
days after service, by the prevailing party in the action upon the unsuccessful party thereto, of
a written notice that the order has been made and entered in the minutes of the court. Stats.
1935, p. 197, sec. 10, subd. 2.
Hawkins, Mayotte & Hawkins, for Respondent:
Under the record, appellant's purported bill of exceptions showing among other things,
that the Notice of Appeal from Order Granting Defendant's Motion for New Trial, dated
January 8, 1936, was served January 8, 1936, and was filed January 10, 1936, in the trial
court, and that the Undertaking on Appeal, dated January 15, was filed in said court and
action January 17, 1936, being more than five days, to wit, nine days, from the date of service
of said notice of appeal, and more than five days, to wit seven days from the date of filing of
the clerk's office of said notice of appeal, it would seem clear that, under the Statutes of 1935,
ch. 90, sec. 11, p. 198, and sec. 16, p. 199, respondent's motion to dismiss the appeal and to
strike the alleged bill of exceptions should be granted, the appeal dismissed and the bill of
exceptions stricken.
The right of appeal is a statutory right, and the statute must be followed. Standard Enc. of
Procedure, vol. 2, p. 134; Stats. 1935, ch. 90, secs. 6, 11; Jasper v. Jewkes, 50 Nev. 153, 156,
254 P. 698; Twilegar v. Stevens, 49 Nev. 273, 244 P. 986; Krehmke et al. v. Armstrong et al.,
52 Nev. 50, 280 P. 321; Lamb v. Lamb, 55 Nev. 437, 38 P. (2d) 659.
OPINION
Appellant is plaintiff, respondent defendant, in the court below. Respondent has moved
this court for an order dismissing plaintiff's appeal from an order granting a motion for new
trial; also for an order striking from the records and files in this court the bill of exceptions on
appeal from order granting motion for new trial. When said motions were called up, appellant
moved the court for an order granting permission to him to file as part of the record on
appeal, a certified copy of the original undertaking on appeal filed in the district court on
January 10, 1936, and a certified copy of the notice of exceptions to the purported
undertaking on appeal and to the sufficiency of sureties, filed in said district court on January
15, 1936. All of said motions were heard and submitted together.
It is conceded by appellant that if his motion should be denied, the appeal would have to
be dismissed. In the view we take of this case, the appeal must be dismissed regardless of
whether appellant's motion be granted or denied. In the following discussion we shall proceed
as if appellant's motion had been granted.
Plaintiff recovered a money judgment against defendant in the Third judicial district court,
Eureka County. Defendant moved for a new trial, which was granted November 18, 1935.
Notice of appeal was served by plaintiff January 8, 1936, and filed January 10, 1936.
Undertaking on appeal, with two individuals as sureties, was filed January 10, 1936. Notice
of exceptions to the sufficiency of said sureties was served January 14, 1936, and filed
January 15, 1936. On January 17, 1936, a new undertaking on appeal was filed, with the
American Surety Company of New York as surety. Accompanying this new undertaking was
the certificate of the secretary of state pursuant to section 7629 N. C. L. 1929, certifying that
said surety company was fully qualified under the laws of Nevada, for the year 1936, to
assume risks and become surety on all bonds and undertakings mentioned in section 1 of
that certain act of the legislature of the State of Nevada entitled "An Act to facilitate the
giving of bonds and undertakings," approved March 26, 1909, as amended, section 7627
N. C. L.
fully qualified under the laws of Nevada, for the year 1936, to assume risks and become
surety on all bonds and undertakings mentioned in section 1 of that certain act of the
legislature of the State of Nevada entitled An Act to facilitate the giving of bonds and
undertakings, approved March 26, 1909, as amended, section 7627 N. C. L. 1929. No notice
was given to defendant that said surety company undertaking was going to be filed, nor did
the surety company justify as required in section 7630 N. C. L. 1929, hereinafter referred to,
or at all.
Section 24 of the new trials and appeals act of l935, Statutes of Nevada 1935, c. 90, at
page 201, provides, in part, as follows: The adverse party may, however, except to the
sufficiency of the sureties within five days after the filing of the undertaking, and, unless they
or other sureties justify before the judge of the court below, or clerk, within five days
thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the
appeal shall be regarded as if no such undertaking had been given.
Section 5 of An Act to facilitate the giving of bonds and undertakings in certain cases and
prescribing conditions upon which surety companies may become liable thereon in this state;
fixing penalities for the violation thereof, repealing conflicting acts, and other matters relating
thereto. Statutes of Nevada 1909, p. 315, section 7630 N. C. L. 1929, provides, in part, as
follows: The certificate or any duplicate certificate issued by the secretary of state in
accordance with the provisions of this act shall be prima facie evidence in all the courts of
this state of all matters herein stated; provided, such certificate shall not have expired. Any
printed copy of a circular issued by the treasury department of the United States known as
form No. 356, stating the amount of the capital and surplus of any such surety company, and
not more than six months old as appears from the date of issuance thereof, shall be prima
facie evidence of the amount of such capital and surplus and of the amount to which such
company is entitled to be received as sole surety on any bond in this state, and shall, if
accompanied with the certificate of the secretary of state herein mentioned, be a
complete justification for any amount not exceeding ten per centum of such capital and
surplus, whenever any such company shall be required to justify on any bond or
undertaking; provided, that the party requiring such justification may produce competent
evidence to show that such surety company is not worth such sum over and above all its
just debts and liabilities exclusive of property exempt from execution."
evidence of the amount of such capital and surplus and of the amount to which such company
is entitled to be received as sole surety on any bond in this state, and shall, if accompanied
with the certificate of the secretary of state herein mentioned, be a complete justification for
any amount not exceeding ten per centum of such capital and surplus, whenever any such
company shall be required to justify on any bond or undertaking; provided, that the party
requiring such justification may produce competent evidence to show that such surety
company is not worth such sum over and above all its just debts and liabilities exclusive of
property exempt from execution.
1, 2. Inasmuch as the personal sureties on the first undertaking on appeal did not justify in
response to defendant's exceptions to their sufficiency, it is plain the surety on the second
undertaking was required to justify, after notice to defendant. As no notice was given
defendant, and as the surety company did not justify, this court has no alternative but to
follow the express provision of the statute and regard the appeal as if no undertaking was
given. Yowell v. District Court, 39 Nev. 423, 159 P. 632; Wood v. Superior Court, 67 Cal.
115, 7 P. 200. Though the surety company was not required to justify under the provisions of
section 9032 N. C. L. 1929, which refers to the justification of individual sureties, it was,
nonetheless, required to justify, and said section 7630 N. C. L. 1929, provides a method for
such justification. Konig v. Nevada-Cal.-Oregon Ry., 36 Nev. 181, at pages 197, 198, 135 P.
141.
The Yowell and Wood Cases, above cited, involved appeals from justices' courts, but,
owing to the similarity of the statutes construed in those cases to the corresponding portion of
said section 24 of the new trials and appeals act of 1935, said cases have been cited as
authority for the proposition that no jurisdiction is conferred upon the appellate court when
the first sureties or other sureties fail to justify when required by such statutes so to do.
first sureties or other sureties fail to justify when required by such statutes so to do. But, as
the instant case involves an appeal from the district court to the supreme court, appellant
contends that if the filing of the surety company undertaking on appeal did not substantially
comply with the aforesaid provisions of said section 24, said failure was not fatal because of
the curative provisions in section 27 of said 1935 new trials and appeals act, Statutes of
Nevada 1935, p. 202. Said section 27 contains three curative provisions: (1) No appeal shall
be dismissed by the supreme court for any defect or informality in the appellant proceedings
until the appellant has been given an opportunity, upon such terms as may be just and within
a reasonable time to be fixed by the court, to amend or correct such defect, and shall within
such time have failed to comply with any terms imposed and correct the defect. (2) No appeal
shall be dismissed for insufficiency of the notice of appeal or undertaking thereon; provided,
that a good and sufficient undertaing approved by the justices of the supreme court, or a
majority thereof, be filed in the supreme court before the hearing upon motion to dismiss the
appeal. (3) 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.
3. Appellant relies chiefly upon the first of these curative provisions, but the failure of the
surety company to justify after notice to defendant was not merely a defect or informality in
appellate procedure; it was a failure to comply with a jurisdictional requirement of the statute.
As was said with reference to the failure to serve a copy of notice of appeal in
Johns-Manville, Inc. v. Lander County, 48 Nev. 244, at page 252, 229 P.
387, 234 P. 518, 520, It was a total failure to comply with a jurisdictional requirement of the
statute. There is a wide difference between rectifying a defect or informality and the
performing of an act which was not done at all, especially when that act is jurisdictional as is
the service of a copy of a notice of appeal.
4. The second curative provision of said section 27 is clearly inapplicable because, in the
instant case, even if the aforesaid failure should be considered as an insufficiency of the
undertaking, no undertaking approved by the justices of this court or a majority thereof was
filed herein before the hearing upon motion to dismiss the appeal. See Duncan v.
Times-Mirror Co., 109 Cal. 602, 42 P. 147.
5. The third curative provision is inapplicable because, as was said in Ward v. Pittsburg
Silver Peak Gold Mining Co., 39 Nev. 80, at page 101, 148 P. 345, 153 P. 434, 436, 154 P.
74, where there was no bill of exceptions or statement on appeal, 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.
6. It is the duty as well as the desire of this court to dispose of appealed cases on the merits
when that can lawfully be done; but, as was said in Roush v. Van Hagen, 17 Cal. 121, at page
122, It was necessary that the sureties should justify within five days after the notice of
exception, and the failure to do so, rendered the appeal a nullity. The statute provides, that
upon a failure to justify within the time limited, the appeal shall be disregarded as if no
undertaking had been given. The orders extending the time were in contravention of this
provision, and were, therefore, inoperative. The statute is peremptory in its terms, and the
consequence of a violation is, that the party loses the benefit of his appeal. 'It has been
repeatedly held,' says Sedgwick, 'that courts have no dispensing power, even in matters
of practice, when the Legislature has spoken.'"
of a violation is, that the party loses the benefit of his appeal. It has been repeatedly held,'
says Sedgwick, that courts have no dispensing power, even in matters of practice, when the
Legislature has spoken.'
As the appeal must be dismissed, we are not called upon to decide respondent's motion to
strike the bill of exceptions.
Judgment will be entered dismissing the appeal from the order of the trial court granting
defendant's motion for a new trial.
April 20, 1938.
Per Curiam:
Rehearing denied.
____________
58 Nev. 253, 253 (1938) Ryan v. Landis
JOSEPH RYAN, Et Al., Appellants, v. MARTHA W. LANDIS, Et Al., Respondents.
No. 3220
January 6, 1938. 74 P. (2d)1179.
ON MOTION TO DISMISS
The supreme court has no power to strike immaterial matter erroneously inserted in a bill of exceptions.
Stats. 1937, c. 32, sec. 31 et seq.
The supreme court has no general or revisory power over a bill of exceptions. Stats. 1937, c. 32, sec. 31
et seq.
Where bill of exceptions is settled in manner and within time prescribed by law, it becomes part of record
on appeal, but is not subject to amendment in supreme court, except in single instance of refusal of trial
court to allow exception in accordance with facts. Stats. 1937, c. 32, sec. 31 et seq.
4. Exceptions, Bill of.
The duty and power of settling statements and bills of exceptions rest generally in trial court. Stats. 1937,
c. 32, sec. 31 et seq.
58 Nev. 253, 254 (1938) Ryan v. Landis
Proceeding by Joseph Ryan and others against Martha W. Landis and others. From an
adverse decision, plaintiffs appeal. On motion to strike portions of the record on appeal.
Motion denied.
Springmeyer & Thompson, for Respondents:
Nowhere do the statutes give expressly to the trial court the power to strike from the bill of
exceptions. If the trial court has this power it must be inferred. If the trial court does not have
this power, it would seem that it should lodge in the supreme court, for there must be some
procedure for the elimination of useless, redundant and irrelevant matter from a bill of
exceptions. The power to strike seems to us to be inherent in the supreme court, from the very
nature of its appellate powers. Moreover, it would seem to follow from, if it is not within, the
purview of supreme court rules VII and VIII.
Wayne T. Wilson and Emerson J. Wilson, Attorneys for Appellants, did not file a brief on
the motion to strike.
OPINION
1. This is a motion to strike portions of the record on appeal. An examination of the record
reveals that the motion is addressed to parts of the bill of exceptions. Respondent Martha W.
Landis claims that the matter objected to is immaterial and therefore has no place in a bill of
exceptions. If, in fact, such matter was erroneously included in the bill of exceptions, we have
no power to strike it.
2, 3. This court has no general or revisory power over a bill of exceptions.
58 Nev. 253, 255 (1938) Ryan v. Landis
a bill of exceptions. When settled in the manner and within the time prescribed by law, the
bill of exceptions becomes a part of the record on appeal. It is, however, not subject to
amendment in this court, except, in effect, in the single instance of a trial judge refusing to
allow an exception in accordance with the facts. In that event the party aggrieved may petition
the supreme court to prove the same and shall have the right so to do. And such exceptions as
are allowed by said supreme court shall become a part of the record of the cause. Chapter 32,
Stats. 1937, p. 64, sec. 31. The methods prescribed for settlement of a bill of exceptions are
found in that chapter. See page 63, sec. 31 et seq.
4. In this case the method chosen for settlement was by the trial judge. His power in this
respect conferred by said statute is general, limited only to the extent above mentioned. The
logic of the statute is well expressed in Re Gates, 90 Cal. 257, 27 P. 195, 196. The court said:
His familiarity [the trial judge] with the trial, and knowledge of what then took place, better
qualify him than any other tribunal for determining how much of the evidence or other matter
is necessary to explain the objection. This court cannot in advance of a hearing upon the
appeal, determine whether any particular piece of evidence or other matter proposed as an
amendment is necessary to explain the objection. A proper determination of that question
would require an investigation of the whole case, including the pleadings and other evidence
that had been admitted as well as the state of the trial at the time the objection was made.
As stated in Hyde v. Boyle, 86 Cal. 352, 24 P. 1059, 1060: The duty and power of settling
statements and bills of exceptions rest generally and properly in the judge of the trial court.
This court can interfere with such statement or bill only in the cases provided by statute; and
the only case thus provided is found in said section 652. But that section refers only to a case
where the judge has 'refused to allow an exception.' It does not give this court jurisdiction
to remodel a bill of exceptions generally by striking matter out of it, etc., as is prayed for
in this petition."
See, also, Landers v. Landers, S2 Cal.
58 Nev. 253, 256 (1938) Ryan v. Landis
the judge has refused to allow an exception.' It does not give this court jurisdiction to
remodel a bill of exceptions generally by striking matter out of it, etc., as is prayed for in this
petition.
See, also, Landers v. Landers, 82 Cal. 480, 23 P. 126; Vance v. Superior Court, 87 Cal.
390, 25 P. 500; Cox v. Delmas, 92 Cal. 652, 28 P. 687.
The motion to strike portions of the record on appeal should be denied.
It is so ordered.
On the Merits
February 3, 1938. 75 P. (2d) 734.
1. Parties.
Where complaint in intervention was not filed until almost a year after judgment had
been rendered by consent of parties, leave to file complaint in intervention was properly
denied, since judgment rendered by consent was equivalent to trial within statute
entitling person having interest in matter in litigation to intervene before trial. Comp.
Laws. sec. 8563.
2. Parties.
A complaint in intervention is a pleading afforded a third person if timely filed in
an action or proceeding to have determined therein an interest in the matter in litigation
which may be adverse to one party or both.
3. Parties.
A complaint in intervention cannot be used to perform office of a motion to vacate a
void judgment, or a suit in equity to attack it directly.
4. Parties.
An intervener must take the action as he finds it.
Action by Martha W. Landis against the Public Service Commission and another for the
purpose of vacating and setting aside an order of the commission insofar as it applied to the
transportation of water to her lands, and to obtain a judgment that she was the owner of a
usufructuary right, wherein Joseph Ryan and others obtained leave ex parte from the court to
file a complaint in intervention. From an order vacating the ex parte order granting leave to
file a complaint in intervention, Joseph Ryan and others appeal.
58 Nev. 253, 257 (1938) Ryan v. Landis
ex parte order granting leave to file a complaint in intervention, Joseph Ryan and others
appeal. Affirmed.
Wayne T. Wilson and Emerson J. Wilson, for Appellants:
The stipulation or agreement between counsel for the public service commission and
counsel for respondent, Martha Landis, that a consent judgment might be entered against the
public service commission was an unlawful surrender of the police power delegated to the
public service commission, and the judgment entered by direction and consent of the parties
was not a judicial determination by the court, and was void, and the said judgment is not res
judicata, and no trial was had prior to the filing of the complaint in intervention.
The police power is a governmental function, and neither the state legislature nor any
inferior legislative body to which a portion of such power has been granted can alienate,
surrender or abridge the right to exercise such power by any grant, contract or delegation
whatsoever.
Springmeyer & Thompson, for Respondents:
Section 8563 N. C. L. provides that a third party may intervene in an action before the
trial. The decisions construing similar statutes are unanimous in holding that intervention
after final judgment is entered is not before the trial. Langmire v. Irrigation Dist. (Wash.),
163 P. 782; Porter v. Knapp (S. D.), 157 N. W. 988; Seligman v. City of Santa Rosa, 81 Fed.
524; Hibernia Savings & Loan Assoc. v. Churchill (Cal.), 61 P. 279; Safely v. Caldwell
(Mont.), 42 P. 766.
A judgment entered upon the default of the defendant, and a judgment entered by the
consent of the parties are equivalent to a trial within the meaning of the word as used in the
intervention statutes. Safely v. Caldwell, supra; Hibernia S. & L. Assoc. v. Churchill, supra;
20 R. C. L. 688, 47 C. J. 110.
58 Nev. 253, 258 (1938) Ryan v. Landis
OPINION
This is an appeal by interveners named above from an order of the trial court vacating its
ex parte order granting them leave to file their complaint in intervention. The action was
instituted by respondent Martha W. Landis against the public service commission and the
receiver of the United Nevada Bank, for the purpose of vacating and setting aside an order of
the said commission insofar as it applied to the transportation of water to her lands, and to
obtain a judgment that she is the owner of the usufructuary right in the use of 70 miner's
inches of the waters transported in the Last Chance ditch, free from any charge, tax, or
assessment whatsoever; and that as to her, the said ditch is not a public utility. The said order
entered on the 15th day of April, 1935, is as follows: It is hereby ordered, That for the year
1935, and until further order of this commission, The Last Chance Ditch Company may
charge for water served to its patrons the sum of $2.50 per inch, after the same has been
customarily measured, and no more.
The action was numbered 5162 in the trial court. There was also pending in the same court
an action in which the issues were the same, numbered 5101.
Demurrers were filed by the defendants in both cases, and were set down to be heard
together. At the hearing the demurrers in action 5101 were argued, submitted, and overruled.
Defendants therein declining to plead further, judgment was entered against them. Thereupon,
the attorney for the commission in the instant action stipulated that its demurrers also be
overruled, and that judgment should be entered in favor of respondent Martha W. Landis and
against the public service commission. Accordingly, such judgment was rendered on
February 4, 1936, and entered on the following month. The commission was represented by
the attorney-general.
58 Nev. 253, 259 (1938) Ryan v. Landis
The pendency of these suits was known to appellants. On January 25, 1937, they obtained
leave ex parte from the court to file said complaint in intervention. On July 16, 1937, on
motion of respondent Martha W. Landis, the order for intervention was vacated, as previously
stated.
1. Respondent contends that the order should be affirmed because the complaint in
intervention was not filed in time, and this was one of the reasons assigned by the court for
granting the order. Section 8563 N. C. L. provides, in that respect, as follows: Any person
may, before the trial, intervene in an action or proceeding, who has an interest in the matter in
litigation, in the success of either of the parties, or an interest against both.
As appears from the statement of facts the complaint in intervention was not filed until
almost a year after judgment. Necessarily this was not before trial, as the statute provides. The
court in Kelly v. Smith et al., Middlecoff, Intervener, 204 Cal. 496, 268 P. 1057, 1059, said,
of an identical statute: Of course, after recovery of judgment, no intervention is permissible,
as in all cases it must be made before trial.
Under a statute similar to ours, the courts in Massachusetts Bonding & Ins. Co. v.
Novotny, 200 Iowa 227, 202 N. W. 588, held that a person attempting to take advantage of
this remedy without bringing himself within the provisions of the statute is considered a mere
interloper who acquires no rights by his unauthorized interference, unless there is a waiver
of objections. True, in the instant case, there was no trial in the strict sense of the word. The
judgment rendered was by consent of the parties. This was equivalent to a trial in our opinion
within the meaning of the statute. That a default is held to be such equivalent, see Safely v.
Caldwell, 17 Mont. 184, 42 P. 766, 52 Am. St. Rep. 693, and Hibernia Savings & Loan
Society v. Churchill et al., 128 Cal. 633, 61 P. 278, 79 Am. St. Rep. 73. The principle is the
same if the judgment is by agreement of the parties.
58 Nev. 253, 260 (1938) Ryan v. Landis
same if the judgment is by agreement of the parties. In Henry & Lee Co. v. Elevator Co., 42
Iowa 33, it was so held. The court said: The intervention must be made before the trial
commences. After the verdict all would admit it would be too late to intervene. But a
voluntary agreement of the parties stands in the place of a verdict, and, as between the paries
to the record as fully and finally determines the controversy as a verdict could do. * * * It is
not the intention of the statute that one not a party to the record shall be allowed to interpose
and open up and renew a controversy which has been settled between the parties to the
record, either by verdict or voluntary agreement.
However, appellants contend that there was no trial because the judgment is void, and
consequently their complaint in intervention was filed in time.
It is argued that there was no trial on this account, for the reason that the court was without
jurisdiction, first, because the complaint does not state a cause of action; and, second, because
the attorney-general was without power to consent to the judgment. While the contention is
novel, appellants are not exactly pioneers as to the proposition that intervention is a proper
remedy to vacate a judgment alleged to be void, and cause a trial to be had with interveners as
a party. The attempt was made in Seattle & N. Ry. Co. v. Bowman et al., 53 Wash. 416, 102
P. 27. The contention was denied and appellants referred to their remedy under the statute of
that state.
2-4. A complaint in intervention is a pleading afforded a third person, if timely filed in an
action or proceeding, to have determined therein an interest in the matter in litigation which
may be adverse to one party or both. It was not intended that such a pleading could in
addition to that function perform the office of a motion to vacate a void judgment, or a suit in
equity to attack it directly. Appellants have referred us to no precedent where statutory
intervention has been so employed, and we know of none.
58 Nev. 253, 261 (1938) Ryan v. Landis
we know of none. An intervener must take the action as he finds it. Cahn v. Ford et al., S.
Levy. Jr., Intervener, 42 La. Ann. 965, 8 So. 477; Freeman on Judgments, 5th Ed. , vol. 1, p.
898.
The order appealed from should be affirmed.
It is so ordered.
____________
58 Nev. 261, 261 (1938) Nevada-Douglas Co. v. Berryhill
NEVADA-DOUGLAS CONSOLIDATED COPPER COMPANY, a Corporation, Appellant,
v. JAMES G. BERRYHILL, Respondent.
No. 3206
February 5, 1938. 75 P. (2d) 992.
1. Limitation of Actions.
The defense of bar by limitations may be raised by demurrer when apparent on face of the complaint.
Comp. Laws, sec. 8596.
2. Pleading.
A demurrer admits allegation of complaint that defendant is a foreign corporation.
A foreign corporation may not avail itself of statute of limitations, except by showing compliance with
statute requiring maintenance of resident agent. Comp. Laws, sec. 1848, as amended by Stats. 1933, c. 28;
sec. 8532.
An action on a note against foreign corporation is not barred by limitations in absence of showing that
corporation maintained resident agent during period of limitations. Comp. Laws, sec. 1848, as amended by
Stats. 1933, c. 28; secs. 8532, 8596, 8614.
5. Limitation of ActionsPleading.
In action on a note against foreign corporation, a plea of limitations in answer, which did not allege that
corporation had maintained resident agent as was necessary under statute for statute of limitations to be
applicable, was insufficient and hence was not admitted by failure to reply thereto. Comp. Laws, sec. 1848,
as amended by Stats. 1933, c. 28; secs. 8532, 8614.
6. Pleading.
A fact necessary to be proven is equally necessary to be alleged.
A foreign corporation is within operation of statutory provision that statute of limitations shall not run
during time of defendant's absence from the state. Comp. Laws, sec. 8532.
8. Statutes.
It would be presumed that legislature, at time of enacting statute, knew of supreme court's construction of
prior statute and had intention consonant with such knowledge. Comp. Laws, sec. 1848, as amended by
Stats. 1933, c. 28; sec. 8532.
9. Pleading.
A motion for judgment by plaintiff is in the nature of a demurrer and may be sustained on ground of
insufficiency of answer, though answer was not demurred to.
10. Pledges.
A pledgee may proceed personally against pledgor for the whole debt, in absence of agreement or statute
to the contrary. Comp. Laws, sec. 9048.
11. Pledges.
A pledge is not a lien within statute requiring that there be but one action for enforcement of any right
secured by mortgage or lien. Comp. Laws, secs. 8703, 9048.
12. Pledges.
An ordinary case of lien is distinguishable from a pledge in that lien gives no right of property,
whereas contract of pledge carries special property in the pledge to the pledgee.
Action on promissory note by James G. Berryhill against the Nevada-Douglas
Consolidated Copper Company. From a judgment on the pleadings for plaintiff, defendant
appeals. Affirmed.
Hawkins, Mayotte & Hawkins, for Appellant:
The promissory demand note which forms the basis of respondent's cause of action was
barred by the statute of limitations of the State of Nevada, and said statute began to run from
the day after the date of its execution, and not from the date of the alleged demand.
The lower court was in error when it overruled appellant's demurrer, which among other
grounds, assigned therein the plea of the statute of limitations, and such demurrer should have
been sustained because it affirmatively appears from the face of the complaint that the cause
of action sued on was barred by the statute of limitations of the State of Nevada, section
S524 N. C. L.
cause of action sued on was barred by the statute of limitations of the State of Nevada, section
8524 N. C. L.
By reason of the fact that said demand note was and is now secured by bonds of a greater
amount than the amount of said note and the interest thereon, plaintiff below, respondent
herein, should be barred and precluded from bringing any action except in accordance with
the provisions of section 9048 N. C. L.
The failure of plaintiff below, respondent here, to reply to the plea of the statute of
limitations set up in the answer as new matter, constituted an admission of the truth of said
defense under the Statutes of Nevada.
A. A. Heer, for Respondent:
Considering the facts pleaded, and the special provisions of the note and the collateral
agreement forming a part of it, the trial court properly determined that the parties intended the
note to be matured by a demand, and that it did not therefore appear from the face of the
complaint that the action was barred. Hence the defense of the statute of limitations was not
available to appellant by demurrer, or at all.
Upon the face of the complaint it appears that appellant is a nonresident. Upon demurrer
this allegation stands confessed; and, like any other nonresident, appellant therefore appeared,
upon the face of the pleadings, to be deprived of the benefit of the statute of limitations by the
provisions of sec. 8532, N. C. L.
Section 9048 N. C. L. has its counterpart in sec. 726 of the Code of Civil Procedure of
California. It is to be found in substance in the statutes of most of the states of the Union. Yet,
notwithstanding these statutory provisions, it is held in all of the states of the Union, with the
exception of perhaps two, that the existence of the pledge does not preclude an action directly
upon the principle obligation. The rule is announced without qualification by the text of 49 C.
J. 987.
Even if the statute of limitations were well pleaded, the answer violates a fundamental
rule of pleading.
the answer violates a fundamental rule of pleading. That rule is that the party required to
prove a fact must plead that fact. Here, since it appears from the complaint and the admission
of the answer that appellant is a foreign corporation, to make the statute of limitations
available to it, it would have been required to prove two things: first, that it was doing
business in Nevada, and, second, that it had complied with section 1848 N. C. L., Pierce v.
So. Pac. Co., 120 Cal. 156, 47 P. 874, 52 P. 302; O'Brien v. Big Casino G. M. Co., 9 Cal.
App. 283, 99 P. 209.
OPINION
This is an action on a promissory note. For convenience of reference we will speak of the
parties as plaintiff and defendant. Pursuant to a motion, judgment on the pleadings was
rendered in favor of plaintiff for the principle sum, with interest thereon and costs, from
which defendant appeals.
The complaint alleges that defendant is and at all times therein mentioned was a
corporation, organized and existing under and by virtue of the laws of the State of Utah. That
on the 1st day of September 1925, at Salt Lake City, State of Utah, in consideration of money
theretofore loaned by plaintiff to defendant, defendant made and delivered to plaintiff its
promissory note, in words and figures as follows, to wit:
$31,517.37. Salt Lake City, Utah,
September 1st. 1925.
On demand, after date, for value received, Nevada-Douglas Consolidated Copper
Company, promise to pay to the order of James G. Berryhill at Salt Lake City, Utah,
thirty-one thousand five hundred seventeen and 37/100 dollars in lawful money of the United
States, with interest thereon in like lawful money from date until paid at the rate of eight per
cent per annum, payable at maturity, and if said interest is not so paid as it becomes due
it is to be added to the principal sum and become a part thereof, and thereafter bear
interest at the same rate.
until paid at the rate of eight per cent per annum, payable at maturity, and if said interest is
not so paid as it becomes due it is to be added to the principal sum and become a part thereof,
and thereafter bear interest at the same rate.
Nevada-Douglas Consolidated
Copper Company.
Henry I. Moore, President,
F.M. Orem, Treasurer.
[Corporate Seal]
The complaint further alleges that as a part of the same transaction the defendant then and
there made and delivered to plaintiff the following corporate agreement in respect to said
note:
And as collateral security for the payment of note, interest thereon, and expenses that may
accrue concerning same, Nevada-Douglas Consolidated Copper Company, have deposited
with James G. Berryhill the following property, to-wit:
Bonds of the Nevada-Douglas Consolidated Copper Company, as follows:
#4406 to #4425-20-@ $1,000.00 = $20,000.00
#3209 to #3238-30-@ 1,000.00 = 30,000.00
And should the said note, or any part thereof, or interest, remain unpaid after it should
have been paid, according to the terms of said note, the Nevada-Douglas Consolidated
Copper Company hereby irrevocably authorizes said James G. Berryhill, or his assigns, to sell
the above described property, or any part thereof, at public or private sale, with or without
previous notice to the Nevada-Douglas Consolidated Copper Company of such sale, and
apply the proceeds thereof in payment of the costs and charges of such sales, all interest due
upon said note, and the unpaid principal; the balance, if any, to be paid to Nevada-Douglas
Consolidated Copper Company, or its representatives, upon demand.
In case of fall in the market value of any of said securitiespromise to reduce the amount
of said note, or to increase the security in proportion to such decrease of value, in default
of which said note shall be considered and treated as immediately due and payable,
anything in said note to the contrary notwithstanding.
note, or to increase the security in proportion to such decrease of value, in default of which
said note shall be considered and treated as immediately due and payable, anything in said
note to the contrary notwithstanding. In case of the payment of the above note, principal and
interest, according to the terms thereof, the above described securities shall be returned to the
Nevada-Douglas Consolidated Copper Company.
Nevada-Douglas Consolidated
Copper Company
Henry I. Moore, President,
Attest: F. M. Orem, Secretary.
[Corporate Seal]
The complaint also alleges that no demand for payment of said note was made upon the
defendant before or until the 4th day of August 1932; that on that date plaintiff made demand
upon the defendant for the payment of said note, together with interest thereon; that neither
the principal of said note, interest thereon; nor any part of either thereof has been paid, but the
same now remains wholly due, owing, and unpaid from defendant to plaintiff.
Defendant interposed a demurrer to the complaint on the ground, among others, that the
alleged cause of action is barred by the statute of limitations.
The demurrer was overruled and defendant answered. The answer admits the execution
and delivery of the note and collateral agreement; that plaintiff is the owner and holder of the
note; that it is unpaid in either principal or interest, but denies the alleged demand; and that
the principal or interest or any part of either is due, owing, and unpaid from defendant to
plaintiff.
The answer alleges that the cause of action alleged in the complaint is barred by the statute
of limitation. As a further defense, the answer alleges that the said note is secured by the
bonds described in the complaint and that plaintiff has a lien upon said bonds, which bonds in
turn are secured by a trust deed upon the real property of said defendant.
in turn are secured by a trust deed upon the real property of said defendant. That said bonds
are of a greater amount than the amount of said note and interest thereon and that therefore
plaintiff is barred and precluded from brining any action except in accordance with the
provisions of section 9048 of the Compiled Laws of Nevada. No reply was filed.
1-3. Defendant assigns as error the overruling of the demurrer. The ground insisted on is
that it appears on the face of the complaint that the action is barred by the statute of
limitations of this state. The facts claimed to disclose that the action is so barred are that the
note sued on is payable on demand after date made on September 1, 1925, and the
complaint filed on August 5, 1932. It is argued that such a note is payable the day after the
date of its execution and not from the date of demand. The right to raise such a defense by
demurrer when it appears on the face of the complaint must be conceded. N. C. L. sec. 8596;
State v. Yellow Jacket S. M. Co., 14 Nev. 220. But in this case it also appears on the face of
the complaint that defendant is a foreign corporation. The demurrer admits this allegation. It
is the settled rule in this state that a foreign corporation may not avail itself of the statute of
limitations. N. C. L. sec. 8532; Robinson v. Imperial S. M. Co., 5 Nev. 44; State of Nevada v.
Central Pac. R. Co., 10 Nev. 47; Barstow v. Union Consol. S. M. Co., 10 Nev. 386; Sutro T.
Co. v. Segregated Belcher M. Co., 19 Nev. 121, 7 P. 271. An exception to this rule provided
by statute will be hereinafter discussed.
4. As is appeared on the face of the complaint that the defendant was a foreign corporation
and not within said exception, the demurrer was properly overruled.
Defendant also assigns as errors the granting of the plaintiff's motion for judgment on the
pleading, and in entering judgment. One of its contentions in this regard is that the plea of the
statute of limitations set up in the answer as an affirmative defense was admitted to be a bar
to the action by the failure to reply.
to be a bar to the action by the failure to reply. In support of this contention we are referred to
N. C. L. sec. 8614, which reads in part:
If the plaintiff fails to demur or reply to the new matter, contained in the answer,
constituting a defense, the same shall be deemed admitted.
5. The statute of limitations to be effective as a defense must be well pleaded. The answer
merely alleges the bar of the statute and refers to the sections of N. C. L. relied on. This is not
sufficient, at least in the instant case. The complaint alleges and the answer admits that
defendant is a foreign corporation. But before such defense could have been completely set
up, the defendant must have shown by appropriate allegations compliance with the provisions
of an act of the legislature enacted in 1907, N. C. L. sec. 1848. This act, as amended, reads:
Every foreign corporation doing business in the State of Nevada is, and shall be, entitled
to the benefit of the laws of this state limiting the time for the commencement of civil
actions; provided, such corporation shall maintain and keep in the state a resident agent, who
may be either an individual or a domestic corporation, upon whom process may be served,
and also shall file a certified copy of its articles of incorporation, and any amendment or
amendments thereto, as required by the laws of this state; and provided further, that the
benefit of this act shall be suspended during any period or periods when said corporation is in
default in complying with the said requirements; nor can any such corporation maintain any
action or proceeding in any court of this state while so in default. Chapter 28, Stats. 1933, p.
24.
The right of foreign corporations to avail themselves of the statute of limitations is subject
to the conditions prescribed in the foregoing act.
The failure to prove compliance with a similar statute was held fatal to the right of a
foreign corporation to make such defense in Pierce v. Southern Pacific Company, 120 Cal.
make such defense in Pierce v. Southern Pacific Company, 120 Cal. 156, 47 P. 874, 875, 52
P. 302, 40 L. R. A. 350, and in O'Brien v. Big Casino Gold Mining Co., 9 Cal. App. 283, 99
P. 209. In the former case the court said:
It being admitted that defendant was a corporation organized under the laws of another
state, compliance with the foregoing statute became a necessary fact to be proven as a
predicate to its right to avail itself of the benefit of the statute of limitations.
6. A fact necessary to be proven is equally necessary to be alleged.
The question here presented was passed upon in Taylor v. Union Pac. R. Co., C. C., 123 F.
155, 156. The court said:
To entitle a corporation to the benefit of the statute of limitations of a state other than that
of its creation, it must affirmatively appear that it maintained an agent upon whom service of
process could be made within the state whose statute of limitations ran and barred the cause
of action. No such allegation appears in the answer in this case, nor does it appear from the
plaintiff's petition. * * * That is a question of fact to be submitted to the jury (United States
Express Co. v. Ware, 20 Wall. 543, 22 L. Ed. 422), and should be pleaded to give the party
the benefit of the statute. * * * For the reason that the pleadings in this case do not show that
for a continuous period of two years subsequent to the date of the injury the defendant
maintained an agent within the state upon whom process could be served, the plea of the
statute of Iowa is unavailing, and for that reason the demurrer [to defense of statute of
limitations] is sustained.
7. True, as pointed out by counsel for defendant, the latter case was disapproved by the
court in Baltimore & Ohio R. Co. v. Reed, 6 Cir., 223 F. 689, but this ruling was put upon the
ground that a foreign corporation was not a nonresident within the meaning of a statute
prescribing that the time during which a person against whom a cause of action had
accured is absent from the state is not to be taken as any part of the time limited for the
commencement of an action.
statute prescribing that the time during which a person against whom a cause of action had
accured is absent from the state is not to be taken as any part of the time limited for the
commencement of an action. This court, however, is committed to the opposite view that
such a corporation is within the meaning of a statute which provides:
If, when the cause of action shall accrue against a person, he be out of the state, the action
may be commenced within the time herein limited after his return to the state; and if after the
cause of action shall have accrued, he depart the state, the time of his absence shall not be
part of the time prescribed for the commencement of action. N. C. L. sec. 8532; Robinson v.
Imperial S. M. Co., and Barstow v. Union Consol. S. M. Co., supra.
8, 9. In the latter case the rule was adhered to on the doctrine of stare decisis. It must be
presumed that this construction was within the knowledge of the legislature when it enacted
the law embraced in N. C. L. sec. 1848 and amendment. Hence it is reasonable to believe that
that body intended by its enactment to extend to such foreign corporations and to those only
as would subject themselves to our law as therein prescribed, the right to avail themselves of
the statute of limitations. The distinction counsel for defendant seeks to make between a
nonresident and a person absent from the state is of no importance. Nor is it of any
importance that respondent did not demur to the defense of the statute. A motion for
judgment is in the nature of a demurrer. Southwest Cattle Loan Co. v. Nevada Packing Co.,
53 Nev. 55, 292 P. 587; 11 Ency. Pl. & Pr. 1046; 49 C. J. 668.
As the plea of the statute of limitations in the answer was fatally defective by reason of the
fact that it did not affirmatively appear from such pleading that defendant had complied with
the provisions of section 1848 N. C. L., there was no admission of the defense by the failure
to reply.
the failure to reply. The court therefore did not err as to this phase of the case.
It follows from what we have held that it is unnecessary to determine when the debt
evidenced by the note matured; whether on the day after its execution or on the date of
demand alleged by plaintiff. In either event, the defendant was deprived of the benefit of the
statute of limitations.
But it is contended that the court erred in granting judgment on the pleadings in the
presence of defendant's affirmative defense of a lien upon the bonds which constituted ample
security for the note. This is so, it is said, by reason of section 9048 N. C. L., which declares:
There shall be but one action for the recovery of any debt, or the enforcement of any right
secured by mortgage or lien upon real estate, or personal property, which action shall be in
accordance with the provisions of this chapter.
10. Defendant argues that in the absence of a showing that the bonds described in the
complaint and answer are valueless, defendant's remedy as declared by that statute is
exclusive. Does the statute preclude a direct action for the debt? The bonds given in this case
as collateral security constitute a pledge. Notwithstanding his security, a pledgee has a right to
proceed personally against the pledgor for the whole debt, in the absence of an agreement or
statute to the contrary. The rule is thus stated in Sonoma Valley Bank v. Hill, 59 Cal. 107:
Now it is well settled that in the absence of a statute or stipulation to the contrary, the
possession of the pledged property does not suspend the right of the pledgee to proceed
personally against the pledgor for his debt, without selling the pledge, for the reason that the
security is only collateral.
In Story on Bailments, sec. 315, pp. 268, 269, the author says: "The possession of the
pawn does not suspend the right of the pawnee to proceed personally against the pawnor
for his whole debt or other engagement without selling the pawn, for it is only a
collateral."
The possession of the pawn does not suspend the right of the pawnee to proceed
personally against the pawnor for his whole debt or other engagement without selling the
pawn, for it is only a collateral.
Modern authorities adhere to the rule, which is thus stated in 1 C. J. S., Actions, p. 1388:
A right of action on the principal debt is not suspended or postponed by the taking of
collateral security, unless exhaustion of the security before maintaining such suit is required
by statute or agreement.
See Commercial Savings Bank v. Hornberger, 140 Cal. 16, 73 P. 625; Jones v. Evans, 6
Cal. App. 88, 91 P. 532; First Nat. Bank v. Poling, 42 Idaho 636, 248 P. 19; Rock Island
Plow Co. v. Cut Bank Implement Co., 101 Mont. 117, 53 P. (2d) 116; Harper v. Grand
Prairie First State Bank, Tex. Civ. App., 3 S. W. (2d) 552; Thompson v. Montgomery Fourth
Nat. Bank, 214 Ala. 452, 108 So. 69; Stern, State Supt. of Banks, v. McDonald, 47 Cal. App.
79, 190 P. 221; 21 R. C. L. p. 685.
The pleadings show no stipulation taking the right of action of a pledgee out of the general
rule, and, in our opinion, there is no statute to that effect.
11, 12. The term pledge does not appear in section 9048 N. C. L., relied upon. Its
operation is confined solely to mortgage or lien. It is not contended that the term
mortgage was meant to include a pledge. It is said to be within the meaning of the term
lien. If the term lien was employed in such a broad sense, why was the word mortgage
stated in the section, for a mortgage is an equitable lien. Southern Pacfic Co. v. Miller, 39
Nev. 169, 154 P. 929. An ordinary case of lien is distinguishable from a pledge in that it gives
no right of property, while a contract of pledge carries a special property in the pledge to the
pledgee. This distinction was adverted to in Winnemucca State Bank & Trust Co. v. Corbeil,
42 Nev. 378, 178 P. 23, 24. The court said:
The contract or pledge exists in law as well as equity, and that by operation of law the
pledgee takes, not a lien only, which is merely a right to retain until the debt, in respect to
which the lien was created, has been satisfied, but a propertyan ownership in the
property pledged."
in respect to which the lien was created, has been satisfied, but a propertyan ownership in
the property pledged.
In Story on Bailments (8th ed.), sec. 311, p. 265, it is said:
The case of pawns seems in this respect distinguishable from the ordinary case of liens;
for a mere right of lien is not understood to carry with it any general right of sale to secure an
indemnity. The foundation of the distinction rests in this, that the contract of pledge carries an
implication that the security shall be made effectual to discharge the obligation; but in the
case of a lien, nothing is supposed to be given but a right of retention or detainer, unless
under special circumstances.
In view of this distinction, it seems reasonable to presume that if it had been intended to
change the longstanding rule that a pledgee may sue directly for the debt, language adapted to
that end would have been employed. The legislature would have been specific as to this most
important subdivision of the general law applicable to bailments. This construction is
strengthened when we consider section 9048, supra, in connection with section 8703 N. C. L.,
concerning attachment. These provisions of the civil practice act were enacted
contemporaneously. In the latter section it is provided that property may be attached in an
action upon a judgment or upon a contract, express or implied, for the direct payment of
money, which is not secured by mortgage, lien, or pledge. Is this not a clear indication that
the legislature would have likewise employed the term pledge in the former section if it had
intended to restrict a pledgee to its terms? We are led to that view.
The case of National Bank of Commerce of Ogden v. James Pingree Co., 62 Utah 259,
218 P. 552, stressed by appellant, is not an authority on the point because the statute of Utah
includes any incumbrance.
The judgement should be affirmed.
It is so ordered.
On Petition For Rehearing
April 6, 1938.
Per Curiam:
Rehearing denied.
____________
58 Nev. 274, 274 (1938) In Re Golding's Estate
In the Matter of the Estate of WARREN T. GOLDING, Deceased
MABEL GOLDING, Formerly MABEL WRIGHT, Appellant, v. A. E. PAINTER, as
Petitioner for the Probate of the Last Will and Testament of WARREN T. GOLDING,
Deceased, Respondent.
No. 3202
March 7, 1938. 76 P. (2d) 1099.
1. Witnesses.
A person entitled to protection of statute prohibiting a witness from testifying to transactions with a
decedent can waive incompetency of witness. Comp. Laws, sec. 8966.
2. Witnesses.
Only persons within terms of statute prohibiting witnesses from testifying to transactions with a decedent
are entitled to protection of statute. Comp. Laws, sec. 8966.
3. Witnesses.
A person filing petition for probate of will nominating him as executor was entitled to protection of
statute prohibiting witnesses from testifying to transactions with a decedent, and could waive incompetency
of objector asserting that under statute her common-law marriage to testator revoked will executed prior to
marriage. Comp. Laws, secs. 8966, 9914.
4. Witnesses.
A petitioner for probate of will withdrawing his objection that objector's testimony as to conversations
had with deceased were inadmissible under statute prohibiting witnesses from testifying to transactions
with a deceased person expressly waived objector's incompetency as a witness. Comp. Laws, sec. 8966.
5. Wills.
A court hearing petition or probate of will could not, of its own motion, strike objector's testimony as to
conversations with testator, in absence of objection on the part of a person entitled to protection of statute
prohibiting witnesses from testifying to transactions with a decedent. Comp. Laws, sec. 8966.
58 Nev. 274, 275 (1938) In Re Golding's Estate274
6. Witnesses.
A statute prohibiting witnesses from testifying to transactions with a decedent is applicable to
proceedings for probate of will which objector seeks to nullify on ground of her subsequent common-law
marriage to testator. Comp. Laws, secs. 8966, 9914.
7. Wills.
Whether testator's common-law marriage to objector revoked prior will was properly triable on petition
for probate. Comp. Laws, sec. 9914.
8. Wills.
In proceeding to probate a will, the striking of testimony as to conversations which testator had with
objector was error, where petitioner expressly waived objector's incompetency as a witness under statute
prohibiting witnesses from testifying to transactions with a decedent. Comp. Laws, sec. 8966.
9. Wills.
In proceeding to probate a will, whether objector's subsequent common-law marriage to testator revoked
will was question of fact for trial court. Comp. Laws, sec. 9914.
Proceeding in the matter of the estate of Warren T. Golding, deceased, wherein the petition
of A. E. Painter for the probate of the last will and testament of Warren T. Golding, deceased,
was opposed by Mabel Golding, formerly Mabel Wright. From a judgment overruling
objections to the probate of the will and from an order denying a new trial, Mabel Golding
appeals. Judgment and order reversed, and new trial awarded.
F. Raffetto and J .M. Frame, for Appellant:
Appellant contends that the undisputed testimony overwhelmingly established a case of
common-law marriage and every element of such a marriage, and that there was no evidence
to the contrary. It follows that the trial court erred in holding that there was no evidence to
support the allegations of a common-law marriage between the objector, Mabel Golding,
formerly Mabel Wright, and Warren T. Golding, deceased.
It was likewise error for the trial court to order the testimony of Mabel Golding stricken
after it had been admitted without objection and had also been elicited by
cross-examination.
testimony of Mabel Golding stricken after it had been admitted without objection and had
also been elicited by cross-examination. In the Matter of the Estate of Cleto Aguirre,
Deceased, 57 Nev. 275, 62 P. (2d) 1107, this court distinctly held that when evidence was
admitted without objection, even though the same was incompetent and not the best evidence,
full consideration should be given to such testimony by the court, and that the same was
sufficient to sustain the judgment and findings.
Painter, Withers & Edwards and Melvin E. Jepson, for Respondent:
We respectfully submit that an unbiased analysis of the evidence supports the view of the
judge presiding at the trial that there is no evidence of any marriage between the parties.
The words No person shall be allowed to testify, in section 8966 N. C. L. seem to be
addressed to the court, and impose upon it the duty to prevent the specified persons from
testifying. The language is of commendable clarity; it is positive in its inhibition, admits of no
exceptions, leaves no room for modification by court or counsel. Death having disadvantaged
one of the parties to the cause, the law seeks to equalize the situation by inhibiting the
survivor from advancing claims which, being beyond the possibility of contradiction, might
be essayed.
In the present case the proponent sought two things: (1) the establishment of the testament,
insofar as his nomination was concerned; and (2) that nomination's concurrence by the court.
To that extent only had he received implied authority from the deceased. It is plain, then, that
the proponent was not an executor at that time and that he had no authority to waive the
protective provisions of the law extended to deceased persons, and which was personal to
them only. And we respectively submit that this right of protection, under the circumstances
attending, was not the proponent's, and could not be by him waived, in opposition to the
positive injunction of the legislation that the appellant be not permitted to testify.
under the circumstances attending, was not the proponent's, and could not be by him waived,
in opposition to the positive injunction of the legislation that the appellant be not permitted to
testify. No repeal of the statute could be effected by omission to object, cross-examination, or
consent.
Again, the questions the appellant sought to have determined were not pertaining to the
execution of the will, nor the nomination of the executor; she should, to prevail, establish that
she was the widow of the deceased, and as such had a right of inheritance, neither of which
could be determined by counsel's failure to object in a proceeding seeking the establishment
of the testament and the appointment of a person to carry it into execution. Sec. 9603 N. C. L.
OPINION
This is an appeal from a judgment of the second judicial district court, Washoe County,
overruling objections to the probate of the last will of Warren T. Golding, deceased, and from
an order denying a new trial. Appellant will sometimes be designated herein as objector, and
respondent as petitioner.
In July 1927 Clara O. Golding commenced suit for divorce against Warren T. Golding.
The parties entered into a written agreement whereby the husband, amongst other things,
agreed, within two days from the entry of a final judgment of divorce granted to either party
in the above entitled case, to pay to said plaintiff the sum of Seven Thousand Five Hundred
Dollars ($7500.00) cash, and also the said party of the second part hereby agrees to make and
execute a will in accordance with the laws of the State of Nevada, which will remain in force
and effect, and be effective at his death, in which will the party of the second part devises,
grants and bequeaths to the party of the first part the sum of Five Thousand Dollars
{$5,000.00), to be paid to here after the legitimate bills and expenses of the party of the
second part have been paid, and before any other bequests, gifts, devises or grants have
been made or paid to any other person; it being intended that the party of the first part
shall receive the said sum of Five Thousand Dollars {$5,000.00) from the estate of the
party of the second part after his legitimate creditors have been paid."
death, in which will the party of the second part devises, grants and bequeaths to the party of
the first part the sum of Five Thousand Dollars ($5,000.00), to be paid to here after the
legitimate bills and expenses of the party of the second part have been paid, and before any
other bequests, gifts, devises or grants have been made or paid to any other person; it being
intended that the party of the first part shall receive the said sum of Five Thousand Dollars
($5,000.00) from the estate of the party of the second part after his legitimate creditors have
been paid.
On July 16, 1927, a decree of divorce was awarded the wife, and on the same day the
husband made his last will and testament wherein, after first providing for the payment of all
legitimate bills, expenses, and indebtedness, he made this further provision: Second: after
the contents of the first paragraph have been complied with, I devise, grant and bequeath to
Clara O. Golding, who has heretofore been my wife, the sum of Five Thousand Dollars to be
paid her after the legitimate bills and expenses referred to in Paragraph First' of this will and
before any other bequests, gifts, devises or grants have been made or paid to any other person,
it being intended that said Clara O. Golding shall receive said Five Thousand Dollars from
my estate after my legitimate creditors have been paid. This devise to Clara O. Golding is for
the purpose of complying with the terms of a certain agreement in writing entered into
between Clara O. Golding and myself, dated the 15th day of July, 1927, and is not in addition
thereto but for the sole purpose of complying with said contract.
All the residue and remainder of testator's estate was given by said will to his four sisters
and two brothers. Appellant was given nothing by the will and she was not mentioned in any
way therein. Petitioner was nominated executor of said will. Mr. Golding died on August 21,
1936.
In due time respondent filed a petition for the probate of said will. Appellant filed written
objections to the granting of said petition, alleging that very shortly after Mr. Golding had
been divorced by Clara O. Golding as aforesaid, she, Mabel Golding, formerly Mabel
Wright, became his common-law wife, that she remained such until his death in 1936, and
that by reason of her said marriage said will was revoked. This contention is based upon
section 9914 N. C. L. 1929, being section 10 of An Act Concerning Wills, Statutes of
Nevada 1862, p. 58, at page 59. Said section reads as follows: If, after the making of any
will, the testator shall marry, and the wife shall be living at the death of the testator, such will
shall be deemed revoked unless she shall be provided for in the will, or in such way
mentioned therein as to show an intention not to make such provision, and no other evidence
to rebut the presumption of such revocation shall be received.
A hearing was had upon appellant's objections to the probate of said will, and some eight
witnesses, beside herself, testified in objector's behalf. At the conclusion of the showing made
by objector, petitioner, without offering any evidence, moved the court for an order
overruling her said objections. This motion was granted. Appellant moved for a new trial,
which was denied.
At the hearing on said objections to the probate of Mr. Golding's will, objector took the
stand in her own behalf. After testifying, without objections, that she and Mr. Golding had
lived together as husband and wife ever since July 16, 1927, she further testified in part as
follows:
Q. What did he say to you at that time? A. He asked me to marry him.
Q. How were you to marry - the Indian custom? A. Indian custom.
Q. A common-law marriage. A. Yes.
A little later in the hearing, and while petitioner was still occupying the witness stand on
direct examination, the record shows the following:
still occupying the witness stand on direct examination, the record shows the following:
Q. What did he have to say? Did he ever speak of dying or not living always and what
would become of you? Did he ever speak of that? A. When he got real sick I asked him, in
case something happened to him, what am I going to do, and he said, Mabel, well, you are
going to be well-fixed. Everything is made to you.'
Q. What did he say to you about you being his wife and whatever belonged to him
belonged to you?
Mr. Jepson: Just a moment.
The Court: You are hitting that statute pretty hard now, Mr. Frame.
Mr. Edwards: It comes directly in conflict with the statute now, I move the testimony of
the objector with reference to her conversation with Mr. Golding be stricken, on the ground
and for the reason that it is testimony in violation of section 8966 and the other party to the
transaction is dead.
Mr. Frame: If it please the Court, this evidence is admitted without objection. It is my
contention, that counsel had waived what is essentially a technical objection in a case of this
kind, counsel cannot lay back and speculate on what the testimony of the witness may be and
permit it to be admitted, even though it is inadmissible under the strict rule, and after he finds
out what it is ask to strike it, and that is neither in good faith nor fair practice, nor is it by the
rules of procedure. The objections must be made timely and counsel cannot wait until it is all
before the Court and then ask to strike it.
Mr. Edwards: I am amused at Mr. Frame's remark that it is not in good faith. We pointed
it out this morning; Mr. Frame knows the questions he asked were in violation of that statute
and we discussed it this morning, and we passed it by and we are not asking to take advantage
and these questions are in violation of the statute and the Court has the right to understand,
and if counsel didn't know of the existence of the statute when we discussed it this morning,
there might be some merit to the argument.
when we discussed it this morning, there might be some merit to the argument.
Mr. Frame: Yes, and I knew of the existence of the statute.
(Further discussion between counsel.)
Mr. Edwards: To save time we will withdraw the objection. Let us understand, Mr.
Frame, that that statute is in effect, and may I ask that you confine your examination of the
witness, excluding any conversation of the witness with the deceased.
Mr. Frame: I will try and proceed. I have some letters I want to identify and offer in
evidence.
The Court: Four of your questions are in violation of the statute. You asked the witness a
question that it is possible nobody but herself and the decedent would know. That would be
objectionable and if one or two questions there that go to the gist of the action that you asked
her. The statute is broad in some respects and you can ask a number of questions but not the
real thing that took place between them. The lips of the other party are sealed, and it would
not be in accordance with this or other statutes to permit that evidence to be introduced by the
parties directly interested. As you said this morning, I noticed you had a knowledge of the
statute that you said other parties were not parties to the transaction. Those four questions
will go out notwithstanding that counsel waives his objection. Proceed.
Mr. Frame: If it please the Court, I want to take an exception, upon the ground that the
testimony is relevant, competent and material and the objections to the same and the motion
to strike the same came after a full examination of the witness upon the point and after the
answers to the questions and after the testimony was given that is now asked to be stricken,
and for that reason it amounts to counsel speculating on possibly the witness giving an
answer favorable to him, and afterwards when it was not, moving to strike the testimony, that
it amounts to a waiver of any objection under the statute.
that it amounts to a waiver of any objection under the statute.
The Court: Note the exception. Proceed.
Objector bases her appeal chiefly upon two grounds: First, that the district court erred in
striking conversations between her and Mr. Golding testified to by objector on direct
examination; second, that said court erred in holding that the testimony in evidence given by
and in behalf of objector was insufficient to make out a prima facie showing that after Mr.
Golding was divorced from Clara O. Golding, petitioner became his common-law wife, and
continued to be such until the time of his death. The conclusion we have arrived at regarding
the first assignment of error above mentioned makes it unnecessary for us to discuss the
second.
Section 8966 N. C. L. 1929, provides, in part, as follows: 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 a deceased person, when the facts to be proven transpired
before the death of such deceased person.
Section 8970 N. C. L. 1929 provides that three classes of persons cannot be witnesses. The
third class consists of Parties or assignors of parties to an action or proceeding, or persons in
whose behalf an action or proceeding is prosecuted, against an executor or administrator upon
a claim or demand against the estate of a deceased person, as to any matter of fact occurring
before the death of such deceased person.
Respondent has not taken the position, either in his brief or oral argument, that if the
district court erred in striking said testimony of the petitioner, it was harmless error. He does
contend, however, that in striking said testimony the court did not err. He argues that the
words No person shall be allowed to testify are a positive mandate of the legislature,
imposing upon the court the duty to prevent incompetent persons from testifying, that the
legislature has the power to impose such a duty upon the courts, and that the
incompetency of a witness under said statutes cannot be waived; that even if such
incompetency of witnesses can be waived under some circumstances, petitioner was
without power in this particular proceeding to waive objector's incompetency for the
reason that, until and including the time of the hearing on appellant's objections in the
district court, petitioner had not been appointed executor, nor had he qualified as such by
taking the official oath and giving the statutory bond. "Again," as respondent contends,
"the questions the appellants sought to have determined were not pertaining to the
execution of the will, nor the nomination of the executor; she sought to establish that she
was the widow of the deceased, and, as such, had a right of inheritance, neither of which
could be determined by Counsel's failure to object in a proceeding seeking the
establishment of the testament, and the appointment of a person to carry it into
execution. Section 9603 N. C. L.
court the duty to prevent incompetent persons from testifying, that the legislature has the
power to impose such a duty upon the courts, and that the incompetency of a witness under
said statutes cannot be waived; that even if such incompetency of witnesses can be waived
under some circumstances, petitioner was without power in this particular proceeding to
waive objector's incompetency for the reason that, until and including the time of the hearing
on appellant's objections in the district court, petitioner had not been appointed executor, nor
had he qualified as such by taking the official oath and giving the statutory bond. Again, as
respondent contends, the questions the appellants sought to have determined were not
pertaining to the execution of the will, nor the nomination of the executor; she sought to
establish that she was the widow of the deceased, and, as such, had a right of inheritance,
neither of which could be determined by Counsel's failure to object in a proceeding seeking
the establishment of the testament, and the appointment of a person to carry it into execution.
Section 9603 N. C. L. 1929.
In support of the foregoing contentions, counsel for respondent have relied entirely upon
their interpretation of the aforesaid statutes. They have not cited any case or other authority,
except said statutory provisions.
1. We are clearly of opinion that one who is entitled to the protection of such statutes may
waive the incompetency of the witness. Kinley v. Largent, 187 Cal. 71, 200 P. 937; Jones,
Commentaries on Evidence, 2d Ed., vol. 5, sec. 2275; 70 C. J. pp. 372-373, sec. 490; 28 R. C.
L. pp. 514-516, secs. 102-103.
We have not read a better statement of the law relating to waiver of incompetency of
witnesses under such statutory provisions as those contained in said section 8966 N. C. L.
1929, than the following in said section 2275 of Jones' Commentaries of Evidence, at pages
4416, 4417: The power of those entitled to the protection of such statutes to waive such
protection is now universally recognized.
universally recognized. The only decisions to the contrary have now been overruled. As a
matter of history, however, it is worthy of note that two early cases (McHugh v. Dowd's
Estate, 86 Mich. 412, 49 N. W. 216; Monfort's Adm'r v. Rowland, 38 N. J. Eq. 181) went to
the extent of holding that notwithstanding waiver an appellate court of its own motion might
excise evidence within the terms of the statute. In later cases in the same jurisdiction,
however, it is pointed out that testimony involving the estate of a decedent is not to be placed
on the same ground as testimony to confidential communications between a person and his
professional advisors, revelation of state secrets, or revelation of confidential
communications between husband and wife. The reason for exclusion in the latter cases is not
unfairness to one of the parties litigant if it were admitted, but because the interests of the
party must succumb to the policy that insures perfect freedom of communication between
client and counsel, the unity of the marriage state, protects communications between
governmental departments, and secures the independence of grand jurors and the stability of
verdicts. But, says the New Jersey Court (Rowland v. Rowland, 40 N. J. Eq. 281): The
exception ingrafted upon the general competency of all parties, that where one is dead and is
represented in the suit, then the living party shall not be permitted to testify, is only a
regulation to secure mutuality in the action itself. The admission of such testimony affects no
one but the parties, and none but the parties are interested in the exercise of the power given
to exclude this testimony. It stands upon the same footing of any other testimony which might
have been the subject of objection, and which the parties have admitted without objection.
Now, the rule is well settled that a party or his counsel cannot sit by and accept the chance of
a witness making evidence in his favor, and then, after ascertaining its force, raise, for the
first time, an objection to its competency.' Similarly the Michigan court has carefully
distinguished the earlier case in that jurisdiction which apparently held that the statutory
protection accorded estates of decedent's could not be waived."
ascertaining its force, raise, for the first time, an objection to its competency.' Similarly the
Michigan court has carefully distinguished the earlier case in that jurisdiction which
apparently held that the statutory protection accorded estates of decedent's could not be
waived.
2-5. Only those persons who are within the terms of the statute are entitled to claim its
protection. Jones, supra, p. 4335; 70 C. J. 372, sec. 490. We incline to the view that petitioner
was entitled to the protection of the provisions of said section 8966 N. C. L. 1929. Being
entitled to such protection, he had the right and the power to waive the incompetency of
objector as a witness, and as we have seen from the quoted record he expressly waived her
incompetency as to said conversations. But even if petitioner was not entitled to the
protection of the statute, then, in the absence of objection on the part of a person entitled to
such protection, it was error for the court, of its own motion, to strike objector's testimony
regarding the conversations with Mr. Golding.
6. It is said that in a majority of jurisdictions it is held that statutes prohibiting witnesses
from testifying to transactions with a decedent are not applicable to proceedings to probate or
to contest a will. Jones, supra, p. 4256. But the author goes on to point out that under the
provisions of particular local statutes, testimony relating to certain matters such as to personal
transactions with the deceased is incompetent irrespective of the character of the proceeding.
In our opinion the reason which forbids the surviving party to testify in other cases applies
with equal force to proceedings for the probate of a will where, as in the instant case, objector
is seeking to nullify the will because of her alleged common-law marriage to Mr. Golding
after his divorce from Clara O. Golding. We are unable to discover in the Nevada statute any
evidence of an intent on the part of the legislature to except proceedings for the probate of
wills from the operation of the statutory prohibition.
the probate of wills from the operation of the statutory prohibition. If, however, the statute
does not apply to such proceedings, then certainty it was error to strike the said testimony
given by objector.
7-9. Respondent contends that as this proceeding seeks merely the establishment of the
testament and the appointment of a person to carry it into execution, and as the question
sought by appellant to have determined does not pertain to the execution of the will or the
nomination of an executor, his failure to object to the incompetent testimony is of no
consequence. As we view the issue, however, objector under the provisions of section 9914
N. C. L. 1929, opposes the probate of Mr. Golding's will upon the ground, as she claims, that
it was revoked by his subsequent marriage to her; and this issue was properly triable on the
petition for probate. In re Larsen's Estate, 18 S. D. 335, 100 N. W. 738, 5 Ann Cas. 794. The
stricken testimony was material and relevant. Its weight, and the credibility of the witness,
were for the trial court to determine. If objector's testimony relating to conversations with the
deceased had not been stricken, the district court might nevertheless have overruled her
objections to the probate of the will; but this court cannot know what action the district court
would have taken had said testimony not been stricken. It is for the trial court, in the first
instance, to decide upon issues of fact such as that involved in the instant proceeding.
We must, therefore, reverse the judgment and order appealed from, and award a new trial
to appellant. Judgment and order will be entered accordingly.
____________
58 Nev. 287, 287 (1938) Neal v. Neal
MINNIE WARD NEAL, Appellant, v. SWAIN O. NEAL, Respondent.
No. 3219
March 7, 1938. 76 P. (2d) 1097.
1. Divorce.
Where appellant moved for allowances to enable prosecution of appeal of divorce action, and moving
papers included estimate of trial court reporter as to cost of transcript, appellant's affidavit stated she was
destitute and that respondent had income of $250 per month, and that appellant was informed by attorney
that she had good grounds for appeal, respondent was required to pay to appellant cost of transcript, filing
fees on appeal, and $400 attorneys' fee on appeal.
Divorce proceeding by Minnie Ward Neal against Swain O. Neal. From a judgment, the
former appeals. On motion for allowances on appeal. Allowances ordered.
John Robb Clarke and A. J. Maestretti, for Appellant, made oral argument, but did not file
a brief.
No appearance for Respondent.
OPINION
This is a motion by appellant for the following allowances to enable her to prosecute her
appeal: Attorney's fees, $1,500; transcript of evidence and proceedings had upon the trial in
the Second judicial district court, Washoe county, $275; filing fee on appeal, $25.
Respondent did not appear at the hearing, either in person or by counsel.
The moving papers are accompanied by an estimate of the official reporter of the trial
court, setting forth that the cost of the transcript will approximate $275. The motion is
supported by appellant's affidavit wherein she states that she is destitute, whereas
respondent has an income of approximately $250 per month.
58 Nev. 287, 288 (1938) Neal v. Neal
states that she is destitute, whereas respondent has an income of approximately $250 per
month.
Appellant's affidavit states that she has been informed by her attorney that he believes she
has good grounds for her appeal. The moving papers disclose nothing relating to the history
of the case or issues involved in the trial court.
An order will be entered requiring respondent, within thirty days after written notice of
this decision, to pay appellant the aggregate sum of $700, to wit, $25 for her filing fee on
appeal, $275 for transcript of the evidence and proceedings in the district court, and $400 for
attorneys' fees on appeal.
____________
58 Nev. 288, 288 (1938) Gold Circle Crown Mining Co. v. Cetchell
GOLD CIRCLE CROWN MINING COMPANY, A Corporation, Appellant, v. N. H.
GETCHELL, VICTOR JACOBSON, C. J. LYON, GEORGE T. MYERS, THE
COUNTY OF ELKO, FIRST DOE, SECOND DOE AND THIRD DOE, Respondents.
No. 4205
March 9, 1938. 76 P. (2d) 1097.
It must be conclusively presumed on appeal from judgment for defendants in action to quiet title to
mining claims conveyed to county by tax deed, validity of which was not questioned, that county acquired
perfect title thereto, so that plaintiff is not owner of such property or any interest therein.
One having no interest in subject matter of litigation has no right to question constitutionality of statute
on which adverse party's rights are based.
3. Stipulations.
A stipulation that plaintiff in action to quiet title to mining claims should have judgment, if statute under
which defendants purchased claims from county, to which they had been conveyed by valid tax deed, were
declared unconstitutional, did not bind court to render judgment for plaintiff corporation, which had no
interest in property. Stats. 1933, c. 44.
Plaintiff in action to quiet title to mining claims cannot question constitutionality of statute under which
defendants purchased claims from county after conveyance thereof to latter by valid tax deed; county, not
plaintiff, having legal title to property, if such act is void. Stats. 1933, c. 44.
Appeal from Fourth Judicial District Court, Elko County; Edgar Eather, Judge.
Action by the Gold Circle Crown Mining Company against N. H. Getchell, the County of
Elko, and other individuals to quiet title to certain mining claims. From a judgment on the
pleadings for the individual defendants, plaintiff appeals. Affirmed.
Herbert Van Dam, Jr., Milton B. Badt and Orville R. Wilson, for Appellant:
The point raised by respondents that appellant is not concerned with the invalidity of the
statutes is not involved here. Both parties are agreed that the sole issue is that of the validity
of the 1933 act. The statement of the case, stipulated to by both parties and settled, allowed
and approved by the trial court shows definitely that plaintiff claimed title to the property
through long years of ownership and possession; that defendants claimed under deeds from
the county under the act of 1933; and that in the event * * * the statute * * * is
unconstitutional * * * the plaintiff have judgment; but if * * * that particular act is
constitutional, then the judgment will be in favor of the defendants.
H. U. Castle and D. A. Castle, for Respondents:
We do not think the appellant in this action is in a position to assert the invalidity of the
statute attacked, and our authority for this statement is found in 61 C. J. at p. 1235, under note
74, where the rule is stated as follows: When property has passed absolutely to the state for
taxes, the original owner is not concerned in the legality of tax sales subsequently made."
the state for taxes, the original owner is not concerned in the legality of tax sales subsequently
made.
Patented mining claims are assessed the same as any other property in this state, and the
value thereof for the purpose of taxation has been fixed at the sum of $500; if the taxes are
not paid, the patented mining claims become the property of the county and state, the same as
any other property when the same had not been redeemed.
OPINION
This is an appeal from a judgment on the pleadings in favor of the individuals named as
defendants.
There are no pleadings in the record, but a statement of the facts pleaded by the respective
parties. stipulated to by counsel and approved by lower court as correct.
For the purpose of this opinion, we assume from the record that this is an action to quiet
title to certain mining claims. The defendants filed separate answers, the defendant Elko
County disclaiming interest in the property. The individual defendants alleged that the mining
claims in question are patented claims and as such were assessed for tax purposes and sold
for taxes and bought in by Elko County, and, not having been redeemed, were deeded to said
county; that thereafter the individual defendants purchased said property from Elko County,
pursuant to chapter 44, Stats. 1933.
When the motion for judgment on the pleadings came up for hearing in the lower court,
counsel for the answering defendants made the following statement: It is practically
understood between Mr. Badt and myself, the attorneys for the respective parties, exclusive of
the County of Elko, that in the event your Honor finds that the statute of 1933, Chapter 44, at
page 40, is unconstitutional, then the motion for judgment on the pleadings would
necessarily be denied and the plaintiff have judgment; but if your Honor finds and holds
that particular act is constitutional, then the judgment will be in favor of the defendants,
to the effect that the motion for judgment on the pleadings will be granted.
pleadings would necessarily be denied and the plaintiff have judgment; but if your Honor
finds and holds that particular act is constitutional, then the judgment will be in favor of the
defendants, to the effect that the motion for judgment on the pleadings will be granted. Is that
correct, Mr. Badt?
To which counsel for plaintiff replied: That is correct, Mr. Castle. That is correct, your
Honor.
The only point urged upon the argument is the constitutionality of the act mentioned
above.
1. The validity of the tax deed executed to Elko County is in no way questioned. This
being the fact, it must be conclusively presumed that Elko County acquired a perfect title to
the property in question, and that as a result, the title which the plaintiff had to said property
prior to the execution and delivery of said tax deed was cut off. This being true, the plaintiff
is not now, and was not when the action was instituted, the owner of the property or of any
interest in it.
2. We deemed it proper before deciding the case, to call to the attention of counsel the
well-recognized rule that one who has no interest in the subject matter of litigation has no
right to question the constitutionality of a statute upon which the rights of the adverse party
are based.
3, 4. Counsel for the plaintiff in response to this suggestion, contends that the stipulation
above quoted eliminates the question, whereas counsel for defendant take the opposite view.
We do not know what was in the minds of the respective parties at the time the stipulation
was made, but it would appear that it was assumed that the declaring of said act
unconstitutional would, as a matter of law, result in vesting the title to the property in
question in the plaintiff. If this was the theory, it is erroneous. If the defendants acquired no
title from the county of Elko, we fail to see how the attempt of Elko County to convey the
title to defendants would result in reinvesting such title in plaintiff.
plaintiff. If the act in question is void, there is no theory upon which the defendants can
stipulate so as to bind a court to render judgment in favor of a party who is shown to have no
interest in the property in question. If the act is void, Elko County, and not the plaintiff, has
the legal title to the property. This being true, the plaintiff is in no position to question the
constitutionality of the statute in question. Doolittle v. Eighth Judicial District Court et al., 54
Nev. 319, 15 P. (2d) 684.
For the reason given, the judgment appealed from is affirmed.
____________
58 Nev. 292, 292 (1938) Orr Ditch & Water Co. v. Silver State Lodge
ORR DITCH & WATER COMPANY, Appellant, v. SILVER STATE LODGE, INC., A
Corporation, Respondent.
No. 3201
April 4, 1938. 78 P. (2d) 95.
Evidence held to sustain judgment for owner of hotel business which rented rooms and cabins to tenants,
for damage to property which was flooded when large quantities of water escaped from break in bank of
irrigation company's ditch, on ground that break was proximately caused by negligence of the ditch
company.
Where there is substantial conflict of evidence on material issues of fact, the supreme court will not order
a reversal unless it is clear that a wrong conclusion was reached.
3. Evidence.
In action for damages to property of owner of hotel business whose property was flooded when large
quantities of water escaped from break in bank of irrigation company's ditch, arbitration agreement
between parties wherein there was no denial of liability on part of ditch company and only matters to be
arbitrated were extent of damage and amount to be paid to owner of hotel business was admissible,
especially where arbitration agreement provided that award to be made by arbitrators would be faithfully
observed by both parties.
In action for damage to property of owner of hotel business whose property was flooded when large
quantities of water escaped from break in bank of irrigation company's ditch, wherein
complaint contained no allegation that guests gave up their rooms or cabins, or that
hotel owner was compelled to turn away customers and prayer of complaint failed
specially to pray damages for loss of business, testimony showing loss of business
occasioned by fact that guests gave up rooms and that owner of hotel business was
compelled to turn away persons who desired to rent rooms or cabins was
inadmissible.
escaped from break in bank of irrigation company's ditch, wherein complaint contained no allegation that
guests gave up their rooms or cabins, or that hotel owner was compelled to turn away customers and prayer
of complaint failed specially to pray damages for loss of business, testimony showing loss of business
occasioned by fact that guests gave up rooms and that owner of hotel business was compelled to turn away
persons who desired to rent rooms or cabins was inadmissible.
quantities of water escaped from a break in bank of irrigation company's ditch, allegation that escaped
water flooded owner's land and improvements and covered them with rubbish and dirt to owner's damage in
a certain sum did not authorize admission of evidence showing loss of business occasioned by fact that
hotel guests gave up their rooms or cabins, and that owner of hotel business was compelled to turn away
persons who desired to rent rooms or cabins.
quantities of water escaped from break in bank of irrigation company's ditch, loss of business occasioned
by fact that some of owner's guests gave up their rooms or cabins and fact that owner was compelled to turn
away other persons desiring to rent rooms or cabins was required to be specially alleged.
Where the judgment in action for damages to property of owner of hotel business, whose property was
flooded when large quantities of water escaped from break in bank of irrigation company's ditch,
erroneously included $30 for an item for which recovery could not be had under pleadings, order denying
new trial would be affirmed on condition of remittitur in the sum of $30.
Action by the Silver State Lodge, Inc., against the Orr Ditch & Water Company for
damage to the plaintiff's property resulting from a break in the defendant's irrigation ditch
which allegedly caused the property of the plaintiff to be flooded. Judgment for the plaintiff,
and, from an order denying a motion for new trial, the defendant appeals. Affirmed upon the
plaintiff filing a remittitur in the sum of $30.
George Springmeyer, Sallie R. Springmeyer and Bruce R. Thompson, for Appellant:
The evidence adduced at the trial does not justify a finding that defendant was negligent,
either in the construction, in the operation, or in the maintenance of its ditch.
There is no evidence establishing a casual connection between the alleged negligent acts of
defendant and the damage to plaintiff's property.
An agreement to arbitrate, being in the nature of an offer to compromise, is not competent
as an admission of liability. Muhenk v. Central Iowa Ry. Co. (Iowa), 11 N. W. 656; Grogerty
Bros. v. Crossman, 153 N. W. 154; Duff v. Duff (Cal.), 12 P. 570.
The loses of present and prospective business and profits are special damages which must
be specially alleged to be recoverable in a tort action. Buckley v. Buckley, 12 Nev. 423;
Patchen v. Keeley, 19. Nev. 404, 14 P. 347; Gerlach Livestock Co. v. Laxalt, 52 Nev. 191,
284 P. 310; 8 R. C. L. 625; Sather v. Giaconi (Ore.), 220 P. 740; O'Brien v. Quinn (Mont.),
90 P. 166; Squier v. Gould, 12 N. Y. 573.
Sidney W. Robinson, for Respondent:
It is well settled that where there is substantial conflict of evidence on the material issues
of fact, an order granting or denying a new trial will not be reversed upon appeal unless it is
clear that a wrong conclusion was reached. Goldfield Mohawk Mng. Co. v. Frances-Mohawk
M. & L. Co., 35 Nev. 423, 129 P. 315.
An examination of the record in this case discloses ample evidence to sustain and support
the finding of the trial court to the effect that appellant was guilty of actionable negligence in
the operation of its ditch, in turning more water into it than it could ever carry.
An agreement to arbitrate is in the nature of a completed compromise, and is not subject to
the same rules of evidence applicable to a mere offer of compromise.
Smith v. Telford, 203 P. 938; Lane v. F. S. Miller Lumber Co., 222 P. 968; Miller v.
Campbell Commission Co., 74 P. 507; Jones v. Jernigan, 223 P. 100.
OPINION
This is an appeal from an order of the Second judicial district court, Washoe County,
denying a motion for a new trial. Respondent will also be referred to herein as plaintiff;
appellant as defendant.
About 3 o'clock on the morning of Monday, April 29, 1935, large quantities of water
escaped from a break in the bank of defendant's ditch at a point about 200 yards west of
plaintiff's property line, and the water flowed down across intervening property over that of
plaintiff. Plaintiff's property consisted of approximately six acres of land adjacent to the
Reno-Truckee highway and between the Tavern night club and Crescent Creamery, directly
south of defendant's irrigation canal. Plaintiff conducted a hotel business on said property,
renting rooms and cabins to tenants.
Before this action was commenced the respective parties signed an arbitration agreement,
reading in part as follows:
Whereas, a controversy is now existing between the Silver State Lodge, Inc., and The Orr
Water Ditch Company arising out of damages resulting from the overflow of water from the
Orr Ditch onto the lands and premises of the Silver State Lodge, Inc., situate on the Verdi
Road just west of the City limits of Reno, Nevada, and,
Whereas, it is the claim of the Silver State Lodge, Inc., that it has suffered actual damages
from the overflow aforesaid as follows: (Items of alleged damage set forth, with amount
claimed in each instance.) And the question to be decided is, what is the extent of the
damages to the premises and the property of the Silver State Lodge, Inc., caused by the
overflow aforesaid, and what amount shall the Orr Water Ditch Company pay to the Silver
State Lodge, Inc.,
damages to the premises and the property of the Silver State Lodge, Inc., caused by the
overflow aforesaid, and what amount shall the Orr Water Ditch Company pay to the Silver
State Lodge, Inc., as damages resulting from said overflow?
Now, therefore, we, the undersigned, Silver State Lodge, Inc., and the Orr Water Ditch
Company aforesaid, do hereby submit the said controversy to the arbitrament of Lehman
Ferris and Lewis A. Brown, and if they cannot agree to the award, then to Lehman Ferris and
Lewis A. Brown and a third arbitrator chosen by the said Lehman Ferris and Lewis A. Brown
on or before the 31st day of August, 1935, and the undersigned mutually agree that the award
be made by the said arbitrators or any two of them, if a third arbitrator is necessary, shall in
all things by the undersigned and each of the undersigned be well and faithfully kept and
observed; Provided, however, that the said order be made in writing, by the said arbitrators or
any two of them as aforesaid, and ready to be and deliver to the said undersigned parties on
the 31st day of August, 1935, and it is hereby stipulated that this arbitration shall be entered
as an order of the Second Judicial District Court in and for the County of Washoe.
The date of said arbitration agreement was July 25, 1935, and it was filed in the office of
the district court clerk on September 10, 1935.
Plaintiff's action was commenced December 9, 1935. Paragraph IV of the complaint, and
the prayer for judgment, read as follows:
IV. That on or about the 29th day of April, 1935, the retaining side walls of defendant's
said ditch broke away by reason of the defective workmanship and improper material used in
the construction of the same, and by reason of the negligence of defendant in the maintenance
and operation of said ditch, and by reason of the negligence of the defendant in failing to keep
said ditch in a proper state of repair, and by reason of defendant's negligence in turning
more water into said ditch than said ditch could carry, thereby causing a large and
unusual body of water to discharge itself upon the above described real property of
plaintiff, which said water flooded and inundated plaintiff's above described real property
and the improvements located thereon, and covered the same with large quantities of
rubbish, dirt, debris and slime, all to plaintiff's damage in the sum of One Thousand Eight
Hundred and Fifty-six Dollars and Fifty-five Cents {$1,S56.55).
in a proper state of repair, and by reason of defendant's negligence in turning more water into
said ditch than said ditch could carry, thereby causing a large and unusual body of water to
discharge itself upon the above described real property of plaintiff, which said water flooded
and inundated plaintiff's above described real property and the improvements located thereon,
and covered the same with large quantities of rubbish, dirt, debris and slime, all to plaintiff's
damage in the sum of One Thousand Eight Hundred and Fifty-six Dollars and Fifty-five
Cents ($1,856.55).
Wherefore, plaintiff prays judgment against defendant for the sum of One Thousand
Eight Hundred and Fifty-six Dollars and Fifty-five cents ($1,856.55) as and for damages
sustained by plaintiff as aforesaid, together with its costs of suit incurred herein and for such
other and further relief as to the Court may seem just and equitable in the premises.
In its answer defendant denied any negligence; denied that its negligence caused the break
in the ditch; denied that plaintiff's damages exceeded $50; and alleged that plaintiff's land was
benefited by the silt carried into it by the flood. Plaintiff's reply denied that the damage to its
land was not more than $50, and denied that its land was benefited by the silt carried onto it
by the flood. After trial before the district court sitting without a jury, judgment for $729.50
damages was awarded plaintiff against defendant. Defendant moved for a new trial, which
was denied, and this appeal is from the order denying defendant's motion for a new trial.
The district court's findings of fact contained the following paragraph: That on or about
the 29th day of April, 1935, the retaining side walls of defendant's said ditch broke away by
reason of the negligence of defendant in the maintenance and operation of said ditch, and by
reason of defendant's negligence in turning more water into said ditch than said ditch could
carry, thereby causing a large and unusual body of water to discharge itself upon the
above described real property of plaintiff, which said water flooded and inundated
plaintiff's above described real property and the improvements located thereon, and
covered the same with large quantities of rubbish, dirt, debris and slime, all to plaintiff's
damage in the sum of Seven Hundred and Twenty-nine Dollars and Fifty Cents.
thereby causing a large and unusual body of water to discharge itself upon the above
described real property of plaintiff, which said water flooded and inundated plaintiff's above
described real property and the improvements located thereon, and covered the same with
large quantities of rubbish, dirt, debris and slime, all to plaintiff's damage in the sum of Seven
Hundred and Twenty-nine Dollars and Fifty Cents. ($729.50).
We shall now briefly state the testimony largely relied upon by the respondent in support
of the district court's finding that the damage to plaintiff's premises was the result of
defendant's negligence.
The break occurred in the south bank of the irrigation canal, frequently referred to in the
testimony as the ditch. James E. Stead, a director of defendant corporation, testified that
this bank was covered with willows and sand and rock and differentjust regular earth.
Thomas R. King, a qualified civil engineer called by the plaintiff on rebuttal, being asked
on direct examination why water could not run in the ditch bank-full with safety when the
banks had willows such as were near this point at the Orr Ditch, testified: Because the
willows catch the cleanings shoveled from the ditch, they are thrown on to the bank on the
lower side for the most part. In throwing those cleanings into those willows, mind you these
are small willows, they run seven or eight or ten feet high as a maximum, but the branches are
small and not too many of them, although they are hard to walk through, and that silt
cleanings deposit are simply as thrown up on the shovel. The bank then takes a slope equal to
the nature of angle composed of that material. In other words, it slopes off naturally leaving a
narrow top of ground in the willows. Consequently, when your water comes close to the top
of your material, seepage immediately occurs, a trickle becomes a hole and you have a break
or a weakness. In other words, look at your repair of the break today.
today. The earth has been placed in there and your bank is ten feet wide at its crest,
approximately. Your bank below and above, built up by years of cleaning is a foot, eighteen
inches wide at its crest, slopes off very rapidly, being very, very weak in comparison with the
new bank. Mr. King further testified that: The bank on the lower side there is composed in
its top section, we will say anywhere from six or eight inches to two feet of the cleanings of
many years, which is sand and silt removed from the bottom of the ditch each spring, and
thrown to the bank. Consequently, it is a narrow section as it reaches the top composed of that
sandy loam, sand and silt and it is apt to leak and be weak. He further testified that the banks
along that section were sandygravelly and sandy loam; and that that type of bank is
semipervious, not impervious.
Charles Thompson, manager of the Silver State Lodge, testified that on the three days
immediately preceding the break in the irrigation canal, the water, in most places back of
plaintiff's place, was several feet from the top. At the place where it broke over, however, it
was right on top of the bank, probably an inch from going over. Up at the Creamery it was
flowing over in one place. Mr. Thompson testified, on cross-examination, that between 4
and 5 o'clock on the Sunday immediately preceding the break, he visited the irrigation canal
from the old Avansino ranch to where the break occurred in 1934a distance of
approximately 1,400 feet, and that the ditch at that time and place was completely filled,
running full.
Joseph L. Freitas, employed by the Crescent Creamery where he had been working for
some ten years and who lives about 200 feet from the Silver State Lodge, testified, for the
plaintiff, that at the request of his children he went to the bank of the ditch and found that it
could not carry any more water than was there, as far as he could see.
Q. How high was the water up to the bank at that place that you looked at? A. Right in
back of the creamery is a place Mr.
place that you looked at? A. Right in back of the creamery is a place Mr. Chism put a cement
wall, I believe was to protect the garage, I am not sure, the water was right in back of that
cement wall.
Q. Was what? A. Was right in back of the cement wall, you can go over there and see that
yet still leaking there.
Q. Was it over the bank? A. Over that cement wall. The bank was a little over a couple of
inches from that bank, that cement wall he has got there.
Richard Hugh Cameron, foreman at the Crescent Creamery, testified by deposition that he
saw the ditch on the Sunday afternoon immediately preceding the break in the canal early the
following morning. The point at which he examined the ditch was right back of the creamery
near the waterbox where the creamery gets it water out of the Orr ditch. The ditch was very
full, even with the top. He had never seen the ditch any fuller.
Walter L. Bell, who had been assistant to the watermaster of the Truckee river for about
ten years, called as a witness in behalf of the defendant, testified on cross-examination that
the irrigation canal had carried as high as 92 second-feet of water, and that when carrying that
amount of water he would judge that there would not be over a couple of inches of freeboard
in some places along the canal. Mr. Bell further testified that the Truckee river was high at
the time of the break; it was one of the high points of the year, if not the highest.
Mr. King, a witness hereinbefore mentioned, testified that a minimum freeboard of about
18 inches should be maintained in a ditch having banks of the character of those where the
break occurred, in order that the water could be carried with safety.
Plaintiff maintained an automatic spillway in its said irrigation canal. With reference to the
operation of this spillway, Mr. Bell, assistant watermaster hereinbefore mentioned, testified
in part, on recross-examination, as follows:
mentioned, testified in part, on recross-examination, as follows:
Q. Well, if the head gate were just arranged so as to permit sufficient water to flow
through, or slightly more than the amount that you had alotted, as compared with an open
head gate, would the automatic spillway take care of all the excesslet me put the question
another way. If the ditch tender with a high river opened the head gate at its full capacity,
would the automatic spillway take care of the difference between the full capacity of the ditch
above the automatic spillway and the amount that you allotted to the ditch? A. I don't believe
that it would take care of it in a case where we were only supposed to have been taking 61
feet through. I think it would safely spill twenty-five or thirty feet, but above that there isn't
area enough there for the additional water to get out. Of course, there was no shortage at that
time and we was allowed all the water
Q. All the water they asked? A. All the water they asked for, and that had been my last
request for about sixty feet of water at that time.
In support of its contention that plaintiff failed to meet the burden imposed upon it by law
to show that the damage to its property was proximately caused by any negligence on the part
of defendant, respondent relies chiefly upon the following:
Defendant's irrigation canal had been thoroughly cleaned about two weeks prior to the day
of the break; the cleaning having been completed on April 6, 1935.
Assistant watermaster Bell, some of whose testimony has already been referred to, testified
as a witness for defendant, that maximum diversion of water from the Truckee river into the
Orr ditch at the diversion point is 100.98 cubic feet per second; that the capacity of the canal
is 92 second-feet; and that was the maximum quantity of water carried in the Orr ditch during
the six years immediately preceding the trial of this case.
Mr. Bell testified that the quantity of water in the ditch is controlled by an automatic
spillway, located, one and one-half miles from the intake; that on April 25, 1935, the gauge in
the automatic spillway was set and locked by him to permit 61.1 second-feet of water to flow
in the ditch; that the setting of the gauge was rechecked on April 26, 1935, and found to be
exactly the same; that on April 30, 1935, the day after the break, the lock and gauge and the
automatic spillway were examined, and found to be in the same condition as when left by Mr.
Bell after he had set them; that the Orr ditch is the only one in the district that has an
automatic spillway, and that it has, in addition, a freeboard spillway like the spillways in the
other ditches in the district; that the automatic spillway will take care of from 25 to 30
second-feet of water.
Q. Then, Mr. Bell, as I understand the situation, if you had your automatic spillway set
for 61.1 feet of water and the head gates were opened permitting 92 cubic feet to go in, that
almost 85 feet would pass east of the automatic spillway down the ditch, is that right? A. No.
Q. Well, there would be 61.1 plus you say, twenty per cent of the excess, is that right,
would go down? A. No, I would not say that. If there is 92 feet in there, there would probably
be four or five feet go on, increase in the ditch. The spillway would take care of the rest of it.
Joseph L. Raffetto, ditch superintendent, testified that he went to the spillways and control
works about 5 o'clock in the afternoon of the Sunday immediately preceding the break in the
canal, to see that everything was in proper shape; also that he was accustomed to go there
nearly very day. He further testified that about 5 o'clock on the morning of the break when he
was notified that the ditch had broken in Avansino's ranch, he immediately rushed up to the
spillway at the water wheel and in going there naturally passed the automatic spillway; that
there were 10 or 15 second-feet of water running over the automatic spillway, and just a
little bit, not a great deal, at the flashboard spillway above; that at the point of the break
the banks are real high according to the ditch elevations, that is, the height of the water
when the ditch is full; that if, on April 2S, 1935, and the two preceding days, the water in
the vicinity of the Crescent Creamery was nearly to the top of the ditch, the water would
be two feet below the crest of the bank at the point of the break; that there were a
"thousand" places in the ditch where the bank was lower than at the point of the break,
but there were no other overflows at any other part of the ditch on April 2S, 1935.
automatic spillway; that there were 10 or 15 second-feet of water running over the automatic
spillway, and just a little bit, not a great deal, at the flashboard spillway above; that at the
point of the break the banks are real high according to the ditch elevations, that is, the height
of the water when the ditch is full; that if, on April 28, 1935, and the two preceding days, the
water in the vicinity of the Crescent Creamery was nearly to the top of the ditch, the water
would be two feet below the crest of the bank at the point of the break; that there were a
thousand places in the ditch where the bank was lower than at the point of the break, but
there were no other overflows at any other part of the ditch on April 28, 1935.
James E. Stead, some of whose testimony in behalf of plaintiff has heretofore been
referred to, was also called as a witness by the defendant, and testified in part that he went up
to Avansino's about 4 o'clock in the afternoon of Saturday, April 27, 1935, and that the ditch
at that place, in his estimation, was about two-thirds full, or a little less.
Assistant watermaster Bell testified that in the year 1935 some one cut a small trench in
the top of the bank of the Orr ditch near the University of Nevada, resulting in the flooding of
the ground around a tennis court.
No witness testified to having been present at the time of the break.
The arbitration agreement of July 25, 1935, was admitted in evidence over the objection of
defendant that it was in the nature of a compromise, and so inadmissible.
Plaintiff was permitted, over the objection of defendant, to testify to loss of business
because of some guests moving out and other guests having to be turned away. Defendant's
objection to this line of testimony was that it was not within the issues presented by the
pleadings, as the items constituted special damages, and no special damages were pleaded.
damages were pleaded. In its judgment the district court allowed $30 for said loss of business.
The assignments of error chiefly relied upon by appellant are: (1) That the evidence does
not establish negligence in the construction, operation, or maintenance of the ditch; (2) that
the evidence does not establish casual connection, in that it does not show that the water
escaped because defendant turned too much water in the ditch or because the ditch bank was
defective, or because of any other act or omission of the defendant; (3) that the trial court
erred in admitting the arbitration agreement in evidence as an admission of liability by the
defendant; (4) that the trial court erred in admitting evidence of loss of guests and of loss of
prospective business as damages.
Appellant contends that the evidence was insufficient to justify any finding of the district
court that defendant was negligent in the maintenance or operation of its ditch, or in turning
more water into said ditch than it could carry; or a finding that any negligence of the
defendant was the cause of the break in the ditch bank and the resulting flooding of plaintiff's
property. This is particularly true, according to appellant, because plaintiff was not content in
its complaint to rely upon a general allegation of negligence, but set out specifically the
negligent acts or omissions complained of, and so was not entitled to the benefit of the
doctrine or res ipsa loquitor. Austin v. Dilday, 55 Nev. 357, at page 362, 34 P.(2d) 1073, 36
P.(2d) 359. Respondent's position is that regardless of the doctrine of res ipsa loquitor, the
evidence was amply sufficient to justify the district court's findings that defendant was
negligent and that its negligence was the proximate cause of the injuries to plaintiff's
property.
1, 2. If we were to consider only the testimony and evidence adduced in behalf of
defendant, there would be some basis for appellant's contention. But when we consider all the
evidence relating to the condition of the south bank of the ditch at the point where the
break occurred, the materials of which it was constructed, the positive testimony of
plaintiff's witnesses as to the amount of water running in the ditch at this point
immediately before the break, and the testimony of the civil engineer that the ditch at
said point could not be safely operated with a freeboard of less than about 1S inches, it
seems clear to us that the trial court, without regard to the doctrine of res ipsa loquitor,
could reasonably conclude that defendant was negligent and that its negligence was the
proximate cause of the injuries to the plaintiff's premises.
of the south bank of the ditch at the point where the break occurred, the materials of which it
was constructed, the positive testimony of plaintiff's witnesses as to the amount of water
running in the ditch at this point immediately before the break, and the testimony of the civil
engineer that the ditch at said point could not be safely operated with a freeboard of less than
about 18 inches, it seems clear to us that the trial court, without regard to the doctrine of res
ipsa loquitor, could reasonably conclude that defendant was negligent and that its negligence
was the proximate cause of the injuries to the plaintiff's premises. Where, as here, there is a
substantial conflict of evidence on the material issue of fact, this court will not order a
reversal unless it is clear that a wrong conclusion was reached.
3. There was no error in admitting in evidence the arbitration agreement hereinbefore
mentioned. There was no denial in this agreement, either express or implied, of liability on
the part of defendant, and the only matters to be arbitrated were the extent of the damage and
the amount to be paid by defendant. Plummer v. Currier, 52 N. H. 287; Kahn v. Traders' Ins.
Co., 4 Wyo. 419, 34 P. 1059, at page 1076, 62 Am. St. Rep. 47; Tompkins, Trial Evidence,
The Chamberlayne Handbook 1936, sec. 651, pp. 625, 626, notes 20, 21, 24; 22 C. J. 313,
notes 10, 11, 17, 18. It may further be observed that in the arbitration agreement both parties
expressly agree that the award to be made by the arbitrators shall in all things be by them and
each of them well and faithfully kept and observed. This provision, when considered in
connection with the fact that the question of defendant's liability is not referred to in any way
in said agreement, entitles it to be admitted in evidence without violating the general rule that
offers of compromise are not admissible as admissions of liability.
4-6. We think it was error for the trial court to admit testimony showing loss of business
occasioned by the fact that some of plaintiff's guests gave up their rooms or cabins, and
the further fact that plaintiff was compelled to turn away other persons who desired to
rent rooms or cabins.
by the fact that some of plaintiff's guests gave up their rooms or cabins, and the further fact
that plaintiff was compelled to turn away other persons who desired to rent rooms or cabins.
Not only does the prayer of the complaint fail to specially pray damages for the loss of such
business, but the complaint contains no allegations that guests gave up their rooms or cabins
or that plaintiff was compelled to turn away other customers. The allegation in the complaint
that the escaped water flooded plaintiff's land and improvements, and covered them with
rubbish, dirt, debris, and slime, all to plaintiff's damage in a certain sum, does not, in our
opinion, fairly notify defendant that any claim will be made for loss of business owing to
guests vacating their rooms or other customers having to be turned away. Such loss of
business should have been specially alleged.
7. If respondent, within fifteen days after notice of this decision, shall file a remittitur in
the sum of $30, thus reducing the amount of its judgment from $729.50 to $699.50, the order
denying a new trial will stand affirmed; otherwise, said order denying a new trial will be
reversed and a new trial awarded appellant.
Costs on appeal will be paid as follows: Two-thirds by appellant; one-third by respondent.
____________
58 Nev. 307, 307 (1938) Dellamonica v. Lyon County Bank Mortgage
MODESTO DELLAMONICA and MARGUERITA DELLAMONICA, Appellants, v. LYON
COUNTY BANK MORTGAGE CORPORATION, A Corporation, Respondent.
No. 3216
April 5, 1938. 78 P. (2d) 89.
1. Pleading.
The allegations of a complaint must be taken as true in determining its sufficiency, as against contention
that a cause of action is not stated.
In action by state bank examiner for note and mortgage allegedly assigned to violation of statute by
insolvent bank to its depositors as consideration for charges against deposits, brought on theory that bank
had no power to make assignment, plaintiff was not required to allege tender of return of consideration for
assignment, although defendants would be permitted to share in assets of bank on basis of their deposits
before preference. Comp. Laws, sec. 684.
3. Equity.
The maxim, He who seeks equity must do equity, is not a rule of pleading.
Evidence sufficiently established that bank was insolvent as defined by statute, when bank cashier
assigned note and mortgage to depositors in consideration for charges against deposits, and that bank
cashier knew, or should have known, such fact, so as to authorize judgment, under statute prohibiting
preference of bank depositors, allowing recovery of note and mortgage from depositors by corporation to
which assets of bank were turned over by state bank examiner. Comp. Laws, secs. 674, 684.
In action by state bank examiner for note and mortgage allegedly assigned, in violation of statute, by
insolvent bank to its depositors as consideration for charges against deposits, whether examiner's testimony
that bank was insolvent when assignment was made was not entitled to any weight because of apparently
inconsistent testimony of examiner in prior action was for trial court. Comp. Laws, sec. 684.
Under statute prohibiting preference of bank depositors or creditors, knowledge of transferee from
insolvent bank that bank is insolvent is not an essential element of preference, and need not be proved in
action to recover assets transferred, since invalidity of transfer depends on the fact of
insolvency, and transferee is charged with notice that transaction is illegal.
since invalidity of transfer depends on the fact of insolvency, and transferee is charged with notice that
transaction is illegal. Comp. Laws, sec. 684.
Under statute providing that, No bank official shall give preference to any depositor or creditor, such a
preference is void. Comp. Laws, sec. 684.
8. Courts.
The supreme court was not bound by language contained in a former opinion, where such language was
not necessary to determination of question in issue, since it is what is decided that is authority, and not
what is said.
Appeal from First Judicial District Court, Lyon County, Wm. D. Hatton, Judge.
Action by the State Bank Examiner against Modesto Dellamonica and Marguerita
Dellamonica for a note and mortgage illegally transferred to defendants by the Lyon County
Bank, wherein the Lyon County Bank Mortgage Corporation was substituted as plaintiff.
From an adverse judgment and an adverse order, defendants appeal. Affirmed.
Platt & Sinai, for Appellants:
The complaint states no cause of action against the defendants, and the judgment is
directly contrary to the decision and opinion and doctrine announced by the supreme court of
Nevada in the case of Organ v. Winnemucca State Bank, 55 Nev. 72, 26 P. (2d) 237.
A. L. Haight, for Respondent:
It is the position of the respondent: (1) that the transaction of November 23, 1931, between
the appellants and the Lyon County Bank was void and that the appellants must restore the
Shehady mortgage or whatever they have received on account or in lieu thereof; or (2) that
the defendant Modesto Dellamonica is liable for all damages which the depositors or
creditors have sustained by virtue of the transaction in question.
OPINION
This action instituted by the bank examiner, and for whom the present plaintiff was
substituted as his successor in interest, is to recover possession of a certain note and mortgage
alleged to have been illegally transferred by the Lyon County Bank. Judgment went for
plaintiff. This appeal is taken therefrom and from the order denying a motion for a new trial.
The parties will be referred to hereinafter as plaintiff and defendants, or the latter by their
proper names.
The transaction challenged took place on November 23, 1931. On that date the cashier of
the bank, with the approval of the directors, assigned to the defendant Mrs. Dellamonica a
note for $12,000 secured by a mortgage on real estate executed by one Shehady and wife. As
a part of the transaction, with the consent of defendants, $9,000 was charged against the
deposit of Mrs. Dellamonica, and $3,000 against the deposit of Dellamonica. Subsequently a
new note and mortgage were taken by Mrs. Dellamonica from the Shehadys in lieu of the
originals. The defendants had been depositors in the bank for some time prior to the
transactions, and Dellamonica was at that time, and for a number of years prior thereto had
been, a director, participating actively as such.
The bank suspended business on February 16, 1932, and the bank examiner took
possession on the next day.
The allegations of the second amended complaint showed that the transaction
consummated when the bank was in an insolvent condition constituted a preference.
The relief prayed for was that the assignment be declared without consideration and void;
that it be declared to be a preference as between the creditors of the bank, and void; and that
the defendants be ordered and directed to assign, convey, and deliver said promissory note
and mortgage to plaintiff together with all payments, benefits, and advantages made or
accruing to or derived by the defendants therefrom or in connection therewith; and for
such other relief as might seem meet and proper.
and directed to assign, convey, and deliver said promissory note and mortgage to plaintiff
together with all payments, benefits, and advantages made or accruing to or derived by the
defendants therefrom or in connection therewith; and for such other relief as might seem meet
and proper.
Defendants contend that said complaint does not state a cause of action, in that it demands
a forfeiture of the note and mortgage without an allegation of tender of a return of the
consideration. They assert this to be true by reason of the equitable maxim that he who seeks
equity must do equity. It does not appear that the case was presented by the plaintiff on the
theory of a forfeiture, but rather on the theory that the assignment was void for want of power
in the bank to make it.
1, 2. Such want of power is a fact if the allegations of the second amended complaint are
true, and they must be taken as true in determining its sufficiency. Assuming their truth, a
fraud was committed on the innocent depositors of the bank in whose behalf the action is
brought. Under such circumstances no tender of equity is necessary to maintain the action.
The assignment being void, the rights defendants had as depositors in the insolvent bank to a
pro rata share of its assets are as they were before the illegal transactions. This legal effect
was recognized by the court in its judgment wherein it was adjudged as follows: That the
defendants be classed as and adjudged to be insecured or general claimants against the assets
of said Lyon County Bank in the following amounts, etc., and be entitled to dividends or
disbursements accordingly as may from time to time be made or authorized by the plaintiff
corporation or its successor.
3. The case of Smith v. Keener, 51 S. D. 124, 212 N.W. 498, 499, is in point. It was an
action of an equitable nature to cancel a transfer of promissory notes and warrants made by
the cashier from the bank to himself as administrator of an estate and paid for by charging the
same to his checking account as administrator, when he knew the bank was insolvent.
when he knew the bank was insolvent. An allegation of return or offer to return consideration
of the transfer was held not essential to statement of a cause of action. The court said: It is
urged that the complaint is demurrable because plaintiff has not alleged a return, or an offer
to return, of the consideration received by the bank for the transfer of the paper. We have
never understood that the maxim, He who seeks equity must do equity,' was a rule of
pleading. When a party invokes the aid of equity, he subjects himself to the imposition of
such terms as established equitable principles require (Story, Eq. Jurisp. 14th Ed. sec. 72), but
it is not always essential that he plead them. There can be no doubt that, if plaintiff recovers,
the court will restore defendant to the position of depositor in the bank and as such a claimant
against the assets of the bank.
To the same effect are Hadlock v. Calister, 85 Utah 510, 39 P. (2d) 1082; Texas P. Ry. Co.
v. Pottorff, 291 U. S. 245, 54 S. Ct. 416, 78 L. Ed. 777; Citizens' State Bank v. First Nat.
Bank, 98 Kan. 109, 157 P. 392, L. R. A. 1917a, 696.
4. The trial court found, inter alia, that said bank was on the 23d day of November 1931,
the date of the alleged assignment, and at all times thereafter and for some time prior thereto,
in an insolvent condition. Defendants contend that the evidence does not support this finding,
and that the conclusion of the court that the assignment was void is unsound. We are contrary
minded as to both contentions. The evidence which we think supports the finding of
insolvency is substantially as follows:
Mrs. Dellamonica had been a depositor in the bank since July 19, 1918. On June 30, 1929,
the balance of her deposit was $9,057.86, and continued above $9,000 to November 23, 1931.
In August 1931 she sought to withdraw from the bank the entire amount of her deposit and
was told by the assistant cashier that she would have to file a notice, for the bank would have
to have a little time to secure funds, maybe a month or two. The bank had never before
required a notice for withdrawal of saving deposits.
bank had never before required a notice for withdrawal of saving deposits. She gave such
notice early in the fall of that year, but was never able to withdraw her deposit, and on
November 23, 1931, the cashier of the bank, after conferring with the president, traded the
Shehady note and mortgage to her, debiting her deposit and Dellamonica's deposit with the
sums heretofore stated. The transaction was later ratified by the board of directors and a
formal assignment executed and recorded. Prior thereto and on September 9, 1931, an official
examination of the condition of the bank was made by E. J. Seaborn as state bank examiner.
A written report thereof was made by him and a copy of the same filed with the bank during
that month. This report showed that the actual value of the bank assets lacked $18,887.04 of
being sufficient to pay its liabilities. The bank examiner testified as to the correctness of this
report and that at the time of his examination the bank was insolvent; that the bank was taken
over by him in February 1932, and he remained in possession of it until April 1934, when its
assets were turned over to plaintiff Lyon County Bank Mortgage Corporation; that during the
period of two years that he was so in possession of the bank he found occasion to investigate
further its assets and liabilities and was of the opinion that his estimate of its assets made on
September 9, 1931, on the whole was high; and that he was able during that period to collect
only about $20,000 on its assets. Basing his answer upon his knowledge of the affairs of the
bank, he testified that it was insolvent on November 23, 1931.
E. W. Blair testified that he had been serving as manager of plaintiff since April 1, 1934;
that the general nature of his duties was to dispose of the assets of the bank, holding the funds
received for a dividend to the depositors and creditors of the bank; and that his estimate of the
amount that would be ultimately recovered for that purpose would be around 40 percent.
It appears from the evidence that after the bank examiner made his examination and filed
his report and before November 3, 1931, he addressed a letter to the president and vice
president of the bank calling attention to the condition of its reserves as shown by his
said report, and advising and requesting the levying of an assessment on the stockholders
of 20 to 30 percent of the outstanding stock, payable by checks or funds from sources
outside the bank, to replenish the funds of the bank and bring the reserve up to standard
legal requirements; that the board of directors in compliance with said letter passed a
resolution on the last-mentioned date that an assessment of 20 percent of the stock held
be levied on each stockholder; that it was agreed that notices of assessment be withheld
pending efforts of the directors to evolve a plan to improve reserves and comply with
legal requirements; that such notices were never given; and that all of the efforts to
rehabilitate the bank was unavailing.
examiner made his examination and filed his report and before November 3, 1931, he
addressed a letter to the president and vice president of the bank calling attention to the
condition of its reserves as shown by his said report, and advising and requesting the levying
of an assessment on the stockholders of 20 to 30 percent of the outstanding stock, payable by
checks or funds from sources outside the bank, to replenish the funds of the bank and bring
the reserve up to standard legal requirements; that the board of directors in compliance with
said letter passed a resolution on the last-mentioned date that an assessment of 20 percent of
the stock held be levied on each stockholder; that it was agreed that notices of assessment be
withheld pending efforts of the directors to evolve a plan to improve reserves and comply
with legal requirements; that such notices were never given; and that all of the efforts to
rehabilitate the bank was unavailing.
5. The above summary is not exhaustive of the evidence bearing on the question of
insolvency, as it does not include that adduced by defendants on that issue. We think,
however, enough appears to show that the trial court's finding that the bank was insolvent
when the assignment was made on November 23, 1931, finds support in the legal evidence.
That being so, further statements of the evidence would serve no useful purpose and only
prolong this opinion. Suffice it to say, however, that defendant's principal contention against
the sufficiency of the foregoing evidence is that it consists mainly of the testimony of the
bank examiner, who, on cross-examination, admitted that in a previous action entitled, H. C.
Guild et als., Plaintiffs, v. Lyon County Bank, a Corporation, et al., Defendants, he appeared
as state bank examiner and verified an answer in which he denied an allegation of the
complaint that the bank was insolvent prior to the 17th of February 1932. The inconsistency
was explained by the bank examiner to the effect that his testimony herein was made purely
on the basis of the value of the physical assets in relation to the liabilities, while the
verification was made on the advise of counsel to the effect that as the president and vice
president had assured him that they would levy an assessment and raise the amount
thereof from outside funds and place them in the bank, or had a plan by which it might
reasonably be expected the bank might be rehabilitated, it could not be deemed insolvent.
the basis of the value of the physical assets in relation to the liabilities, while the verification
was made on the advise of counsel to the effect that as the president and vice president had
assured him that they would levy an assessment and raise the amount thereof from outside
funds and place them in the bank, or had a plan by which it might reasonably be expected the
bank might be rehabilitated, it could not be deemed insolvent. Defendants contend that the
bank examiner's testimony as to the insolvency of the bank was thus entirely discredited and
entitled to no weight. We cannot say it was entitled to no weight. That was for the trial court
to decide.
The legislature has not left it to the courts to define insolvency, but has itself done so in
section 25 of the bank act in effect when the transfer was made, section 674, Nev. Comp.
Laws, as follows:
A bank shall be deemed to be insolvent:
FirstWhen the actual value of its assets is insufficient to pay its liabilities;
SecondWhen it is unable to meet the demands of its creditors in the usual and
customary manner;
ThirdWhen it fails to make good its reserve as required by law.
The evidence summarized above tends to prove each of the three conditions of the statute
existing when the Shehady note and mortgage were transferred to Mrs. Dellamonica.
Defendants contend that the transaction was legitimate because the cashier of the bank
acted in good faith and without knowledge that the bank was in an insolvent condition. This
contention is resolved against them by the trial court which found that the cashier knew, or
should have known, that the bank was in an insolvent condition when, acting under the
direction of the officers and directors of the bank, he assigned and set over to Mrs.
Dellamonica said note and mortgage. That finding has support in the evidence.
6. It is contended that no preference was given on account of the good faith of Mrs.
Dellamonica, which, it is claimed, was established by evidence showing that she had no
knowledge of the insolvent condition of the bank and had been importuned by Shehady
sometime before November 23, 1931, to take over the note and mortgage so that he could
have the benefit of the lower rate of interest. The knowledge of a transferee from an insolvent
bank of such condition is not an essential element of a preference. Luikart v. Hunt, 124 Neb.
642, 247 N. W. 790, 793. In the case, supra, a bank in an insolvent condition, known to its
officers, assigned a note and mortgage constituting a part of its assets to a depositor in
exchange for certificate of deposit. The evidence showed that the depositor did not have
actual knowledge or notice that the bank was insolvent. The court held that the transfer was
void, and as to the depositors' good faith said: The law and the facts put Mrs. Hunt
[Transferee] upon her notice. We are of the opinion that, as a matter of law, she was charged
with notice of the unlawful act of the bank and of its fraud upon the other depositors, and so
the district court was right in holding that the question of the knowledge of Mrs. Hunt as to
the insolvency of the bank was immaterial.
In Hadlock v. Callister, 85 Utah 510, 39 P. (2d) 1082, the court held that invalidity of
transfer of bank assets giving transferee preference does not depend on knowledge of
transferee, but on the fact of insolvency, and the transferee is charged with notice that the
transaction is illegal. To the same effect are: Bradley v. Guess, 165 S. C. 161, 163 S. E. 466;
Walther v. McFerson, 92 Colo. 314, 20 P. (2d) 552; Citizens' State Bank v. First Nat. Bank,
98 Kan. 109, 157 P. 392, L. R. A. 1917a, 696.
We are of the opinion that the conclusion of the trial court that the transaction was a
preference and void, is sound.
Section 35 of the bank act of 1911, Nev. Comp. Laws, sec. 684, provides in part: No
bank official shall give preference to any depositor or creditor by pledging the assets of the
bank as collateral security, or otherwise.
7. True, this section does not declare preferences void, but the implication that they are so
is plain. Citizens' State Bank v. First Nat. Bank, supra. Certainly the legislature in prohibiting
preferences never intended its prohibition to be ineffectual. A result which might give a
favored depositor the full measure of his deposit in an insolvent bank, leaving nothing for the
others, is abhorrent to the fundamental maxim of equity, that equality is equity, and not to be
presumed to be within the intention of a law-making body.
Neither the case of Organ v. Winnemucca State Bank, 55 Nev. 72, 26 P. (2d) 237, or
Lothrop v. Seaborn, 55 Nev. 16, 23 P. (2d) 1109, is controlling or analogous in the instant
case.
8. While there is some language in the former that supports defendants' contention that the
assignment cannot be considered void, it was unnecessary to a determination of the question
then before the court. The question of preferene was not involved in that case. This court will
not hold itself bound by language not needful to the determination of questions in issue. It is
what is decided that is authority, not what is said. Steptoe Live Stock Co. v. Gulley, 53 Nev.
163-173, 295 P. 772. In Lothrop v. Seaborn, supra, a deposit was made when the bank was
insolvent. It was contended that the deposit was a preferred claim. The court answered by
holding that mere insolvency was not sufficient to rescind the contract of deposit; that only
hopeless insolvency could work such a rescission.
We indicated only the condition under which one making a deposit in an insolvent bank
might recover the deposit. We did not construe, or attempt to construe, the term insolvency
employed in the banking act to mean hopeless insolvency, as defendant contends.
The judgment and order denying the motion for a new trial are affirmed.
May 5, 1938.
Per Curiam:
Rehearing denied.
____________
M. J. HOUGH and MINNIE J. HOUGH, Appellants, v. ROBERTS MINING AND
MILLING Company, Respondent.
No. 3210
April 5, 1938. 78 P. (2d) 102.
1. Bankruptcy.
Under the bankruptcy act, where corporation instituted suit to quiet title to mining claim in state court,
wherein title and right to possession of corporation were disputed, and, over one year later, instituted
reorganization proceeding wherein mining claim was listed as an asset in petition, which was approved, and
wherein petition to require exhibition of claims to property, including mining claim, was denied,
bankruptcy court did not have exclusive jurisdiction over mining claim so as to bar proceeding in state
reviewing court to restrain corporation from working mining claim pending appeal from judgment for
corporation. Bankr. Act, sec. 77b, as amended, 11 U. S. C. A. sec. 207.
In suit to quiet title to mining claim, supreme court had inherent power to restrain plaintiff, which was
insolvent, from working mining claim pending appeal by defendants, who filed stay bond.
In suit to quiet title to mining claim, plaintiff, which was insolvent, would be restrained from working
mining claim pending appeal by defendants, who filed stay bond, without consideration of disputed issue
whether defendants had any interest in mining claim.
Appeal from Third Judicial District Court, Eureka County; J. M. Lockhart, Judge
Presiding.
Action by the Roberts Mining & Milling Company against M. J. Hough and others to quiet
title to a mining claim. From a judgment for plaintiff, defendants M. J. Hough and Minnie J.
Hough appeal on appellants' petition to restrain plaintiff from working the claim pending the
appeal. Petition granted.
James T. Boyd, for Appellants:
Appellants should be protected, and the property preserved in status quo so that the fruits
of the appeal would not be lost to the appellants if the decision be in their favor. City of
Pasadena v. Superior Court, 157 Cal. 781, 109 P. 620; Mulvey v. Superior Court, 22 Cal.
App. 514, 135 P. 53; Martin v. Rosen (Cal.), 38 P. (2d) 855; Dunphy v. McNamara, 50 Nev.
113, 252 P. 943; Dodge Bros. v. Gen. Petroleum Corp., 54 Nev. 245, 10 P.(2d) 314; 3 C. J.
secs. 1385, 1387, 1446; Rogers v. Superior Court, 158 Cal. 467, 111 P. 357; Ajax Gold Min.
Co. v. Triumph Gold Min. Co. (Colo.), 69 P. 523; Lovelock Merc. Co. v. Lovelock Irr. Dist.,
51 Nev. 179, 272 P. 1; Owen v. Pomona Land & Water Co., 124 Cal. 331, 57 P. 71; Holland
v. McDade, 125 Cal. 353, 58 P. 9; Sutherland Code Pleading and Practice, vol. 2, sec. 1750,
p. 1152; De Leonis v. York, 140 Cal. 333, 73 P. 1058; secs. 8701 and 8702 N. C. L.; Stats.
1937, sec. 22 p. 60; Rosenfeld v. Miller (Cal.), 15 P. (2d) 161; 2 Cyc. secs. 915, 916; Silver
Peak v. District Court, 33 Nev. 97, 110 P. 503.
The appeal in this case was perfected, and thereafter the deed and bond were duly given
and filed, as required by sec. 20, Stats. 1937, p. 60. Under sec. 22 of the same statutes, that
proceeding stayed all further proceedings in the court below upon the judgment appealed
from, or upon matter embraced therein, and that stay included the right to possession of the
Emma E mining claim, and a violation of that by the taking of possession was a contempt of
the order.
Hawkins, Mayotte & Hawkins, for Respondent:
Upon the filing of a petition in bankruptcy the jurisdiction of the bankruptcy court
becomes paramount and exclusive. The property of the debtor comes into the custody of the
law, and the bankruptcy court, through its agents, is the custodian. Cont. Ill. & C. T. Co. v. C.
R. I. & P. R. Co., 294 U. S. 648, 661-2, 79 L. Ed. 1110, 1120; In re 211 E. Delaware (7
CCA), 76 Fed.(2d) 834, 836-7; Humphrey v. Mortgage Co. (10 CCA), 79 Fed. (2d) 345, 349;
In re Greyling Realty Co. (2 CCA), 74 Fed. (2d) 734, 736; In re Cloister Bldg. Co. (7 CCA),
79 Fed (2d) 694, 696; In re Hotel Martin (2 CCA), 83 Fed. (2d) 231, 232 U. S. v. Tacoma S.
S. Co. (9 CCA), 86 Fed. (2d), 363, 367-8; Grand Blvd. Inv. Co. v. Strauss (8 CCA), 78 Fed.
(2d) 180; In re 7000 etc. (7 CCA), 86 Fed. (2d) 449, 501; Texas Co. v. Hauptman (9 CCA),
91 Fed. (2d) 449, 450-2; Bank v. Lehmann-Higginson Co. (10 CCA), 82 Fed. (2d), 969,
970-1; Burco v. Whitworth (4 CCA), 81 Fed. (2d) 721; State v. Donoghue (5 CCA), 88 Fed.
(2d) 48, 50.
We respectively submit that the question whether or not appellant or respondent is entitled
to possession of and to work the claim is a question for the original jurisdiction of the district
court, within the contemplation of art. 6, sec. 6, of our constitution, and not within the
appellant jurisdiction of this court.
The findings of the trial court to the effect that the Houghs are without interest in the
property are binding upon this proceeding, and the so-called appellants are not aggrieved
parties, nor real parties in interest. Finer v. Stuer (Mass.), 152 N. E. 220, 222.
Since the Houghs are no longer interested in the subject matter of the proceeding, and will
suffer no injury, regardless of its disposition, they are not entitled to any injunction. Franklin
Tr. Co. v. City of Loveland (8 CCA), 3 Fed. (2d) 114, 116; Board v. Board (Ky.), 236 S. W.
1038.
OPINION
In April 1934, respondent, as plaintiff, commenced civil action No. 2330, against
appellants and others, in the Third judicial district court, Eureka County. By said action
respondent sought, among other things, to have its title quieted to the Emma E patented lode
mining claim, located in Mill canyon, Cortez mining district, in said Eureka County. His case
was afterwards tried, and on June 27, 1936, said district court rendered its decision in favor of
plaintiff. Formal written judgment was filed December 15, 1936. By this judgment is was
decreed, inter alia, that respondent was, and ever since June 9, 1934, had been, the owner of
and entitled to be vested with full title to and possession of said mining claim. A motion for a
new trial was denied August 15, 1936. Notice of appeal from said judgment and order
denying a new trial was served and filed, and undertaking on appeal filed, all in the first week
of October 1936. Said appeal is now pending in this court.
On May 24, 1937, said district court, on application of appellants' attorney, made an order
fixing $10,000 as the amount of a bond to stay execution of said judgment. On the same date
a stay bond in said amount was filed.
On November 27, 1937, appellants filed their petition in this court, alleging, among other
things, that, after the filing of said stay bond, respondent, about August 1, 1937, commenced
mining and extracting ores, and taking the same from the said mining claim, and taking
valuable ores from the dumps situated on said claim, and hauling them away and milling
them; that said mining claim is valuable principally for the ores contained therein, that the
taking and extracting of ores therefrom was material by reducing the value of said mining
claim, and that when said ore is extracted said claim will be of little or no value; that
respondent was continuing to mine and extract such ores, and would continue so to do
unless restrained by this court; that respondent was insolvent, and petitioners without
any adequate remedy in the premises except such relief as might be granted by this court;
that petitioners are entitled to the possession of said mining claim pending said appeal,
and to have said claim kept in status quo until the final determination thereof.
continuing to mine and extract such ores, and would continue so to do unless restrained by
this court; that respondent was insolvent, and petitioners without any adequate remedy in the
premises except such relief as might be granted by this court; that petitioners are entitled to
the possession of said mining claim pending said appeal, and to have said claim kept in status
quo until the final determination thereof.
Pursuant to said petition an order to show cause and restraining order were issued and
made on said 26th day of November 1937. On December 10, 1937, respondent filed its plea,
response, and answer to said order to show cause, and the matter was heard on December 16,
1937.
Respondent presents at least six reasons why petitioners are not entitled to any relief. We
shall take up such of these contentions as we think call for any discussion. Before doing so it
is well to point out that we are not disposed to make an order that petitioners be given
possession of the Emma E. We shall consider only whether an order should be made
restraining respondent from mining or extracting ore on that property.
1. Respondent's first contention is that this court is without power or jurisdiction to make
such an order because, at the time the petition was filed and the order to show cause issued,
the mining claim in question was, and still is, in custodia legisthe bankruptcy court,
through its agents, being the custodian, and its jurisdiction being paramount and exclusive.
To understand this position it is necessary to point out that prior to November 12, 1935,
certain of respondents's creditors filed a petition in the United States district court, district of
Nevada, for an involuntary adjudication of the debtor (respondent) as a bankrupt. Before the
final disposition of said creditor's petition, respondent filed its petition for reorganization
under the provisions of section 77b of the bankruptcy act, as amended, 11 U. S. C. A.
sec. 207. In this petition respondent listed among the assets held and claimed by the debtor,
said Emma E mining claim. Upon presentation of the petition, the court ordered it approved.
Respondent claims that under said action 77b the order of approval conferred paramount and
exclusive jurisdiction over its property upon the bankruptcy court, and that by reason of
certain provisions in the order of approval the Emma E mining claim was included in said
property. But later, in said bankruptcy proceedings, respondent, the debtor, presented a
petition for an order requiring certain of the parties who had answered the petition for
reorganization to appear and exhibit claims, if any, to certain alleged property of the debtor,
including said mining claim. This petition was denied by Hon. Frank H. Norcross, United
State district judge for the district of Nevada, in Re Roberts Min. & Mill. Co., 16 F. Supp.
424. While it is true, under title 11, section 207(a) U. S. C. A., that, upon approval of a
petition by a corporation for reorganization, the bankruptcy court shall, during the pendency
of the proceedings under said section, have exclusive jurisdiction of the debtor and its
property for the purposes of said section, we are satisfied, on the authority of the opinion
above cited, that exclusive jurisdiction of the Emma E claim has not been conferred on the
bankruptcy court as the result of respondent's institution of said reorganization proceedings,
as both the title of respondent to and its right to possession of said mining claim are denied by
the Houghs, and are among the important issues presented in this court in the appeal in this
case. The Houghs claim, adversely to respondent, that title to and right to possession of the
Emma E claim is in them. The exclusive jurisdiction granted by section 77b extends only
over the debtor and its property, not over all the property claimed by the debtor. In re
Roberts Min. & Mill. Co., supra, citing Gerdes on Jurisdiction of the Court in Proceedings
under section 77b.
Respondent further contends that, entirely aside from the question of exclusive jurisdiction
in the bankruptcy court, this court was and is without jurisdiction to grant the relief asked by
petitioners, for the reasons that its jurisdiction is essentially appellate, and to grant the relief
prayed for would be an exercise of original jurisdiction which the court does not
possessthis case not being one of those in which this court is authorized to grant injunctive
relief. Furthermore, argues respondent, to grant such relief in this case would be to restrain
acts of a litigant, whereas appellate jurisdiction is limited to preventing the trial court or its
officers from proceeding to enforce the judgment appealed from, and does not contemplate a
trial of the litigant except by and through the record made in the trail court.
2. In this case petitioners have perfected an appeal from the judgment of the district court,
and have furnished a stay bond which protects respondent against damages it may suffer by
reason of the appeal. If respondent is permitted to mine and extract ores from the mining
claim in question, irreparable damage may result to petitioner should their appeal be
successful, especially if, as they allege in their petition, respondent is insolvent. To prevent
such possible damage, to preserve the status quo pending the appeal, and to prevent its
jurisdiction being made ineffective, this court, no other adequate relief being available, has
the inherent power to restrain respondent from mining or extracting ores from said mining
claim. Finlen v. Heinze, 27 Mont. 107, 69 P. 829, 70 P. 517; Astca Inv. Co. et al. v. Lake
County et al., 86 Fla. 639, 98 So. 824; Helms Groover & Dubber Co. v. Copenhagen et al., 93
Or. 410, 177 P. 935; 4 C. J. S., Appeal and Error, 1105, sec. 621; 4 C. J. S., Appeal and Error,
1118, 1119, sec. 632; 8 Bancroft's Code Practice and Remedies, 8719, 8721, sec. 6598. If
Roberts Mining & Milling Company were not a party or privy to the judgment appealed from,
a different question would be presented.
3. There is another reason why, as contended by respondent, no relief should be granted
petitioners in this proceeding. They had, says respondent, parted with all interest in the Emma
E claim long before their petition herein was filed, and so could not be injured by any acts of
respondent in extracting ores from that claim. But this is a controverted matter. It is
controverted in their answer as well as in their present petition. Petitioners insist that they still
retain their interest in said mining claim, and that Mr. Hough's assignment to Mr. Blitz was
simply for the purpose of raising money with which to meet certain specified expenses. In
view of petitioners' said denial, and their continuing claim of interest in said claim, we think
this issue one which cannot properly be determined in this particular proceeding.
It is ordered and adjudged that until further order of this court said Roberts Mining &
Milling Company, its agents and employees, and its president, Belle McCord Roberts, its
secretary. G. A. Smith, and C. L. Tibbals and C. M. Hanselman, agents or employees, and all
other agents and employees of the said Roberts Mining & Milling Company, be, and they are
hereby restrained and enjoined and forbidden to operate the said Emma E mining claim, or to
mine or extract any ores or take any ores either from the mine or from the dumps situated on
the said Emma E mining claim.
____________
58 Nev. 325, 325 (1938) City of Reno v. District Court
CITY OF RENO, A Municipal Corporation, Petitioner, v. THE SECOND JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Washoe,
THOMAS F. MORAN, Judge of said Court, and ANGELO BENETTI, Respondents.
No. 3217
April 5, 1938. 78 P. (2d) 101.
1. Action.
A court will not determine moot or abstract questions and there must be a real controversy to engage
judicial action.
Certiorari proceedings to determine whether the district court exceeded its jurisdiction in finding an
accused not guilty of a violation of an ordinance was required to be dismissed as moot, since the guilt or
innocence of accused under the city ordinance was disposed of by the judgment of the district court, and
there was no controversy between the parties to be determined.
Statutes permitting state to appeal in criminal action and providing that such appeal should not affect or
stay operation of judgment in favor of an accused, with certain exceptions, did not authorize certiorari
proceedings to determine whether the district court exceeded its jurisdiction in finding an accused not
guilty of violation of a city ordinance. Comp. Laws, secs. 11084, 11091.
Original proceeding in certiorari by the City of Reno against the Second Judicial District
Court of the State of Nevada, in and for the County of Washoe, Thomas F. Moran, Judge of
said court, and another, to inquire as to whether the respondent court exceeded its jurisdiction
in finding respondent Angelo Benetti not guilty of violation of a city ordinance. Writ
dismissed, and judgment of district court affirmed.
Douglas A. Busey, City Attorney, for Petitioner:
Under the cases of Chapman v. The Justice Court of Tonopah Township, 29 Nev. 154, 86
P. 552, and Mack v. District Court, 50 Nev. 318, 259 P. 289, certiorari issues as well to annul
the action of a court in arbitrarily refusing jurisdiction where it has jurisdiction as it does to
annul an arbitrary assumption of jurisdiction by a court where it does not have
jurisdiction.
refusing jurisdiction where it has jurisdiction as it does to annul an arbitrary assumption of
jurisdiction by a court where it does not have jurisdiction. In either case the court is exceeding
its jurisdiction, and there is no logical reason why it should be said that a review may be had
in one case but not in the other. Nor is there anything improper about the state having the writ
to review solely a question of law, since no matter what the outcome of that review the
defendant cannot be again placed in jeopardy for the same offense. Secs. 11084 and 11091 N.
C. L.
Wm. McKnight, for Respondents:
Angelo Benetti is the real adverse party in interest in this proceeding; and as his acquittal
by the district court cannot be changed or affected in anyway by the result of this litigation,
the constitutionality or unconstitutionality of the city ordinance is a moot question or abstract
propositiona matter upon which the supreme court should not render any opinion, as there
is no dispute or controversy between Benetti and the city of Reno. State v. McCullough, 20
Nev. 154, 18 P. 756; De Lucca v. Price, 146 Cal. 110, 79 P. 853, 854; Bancroft's Code
Practice, vol. 4, p. 3588, sec. 2793, nn. 14-15; Cunha v. Superior Court, 217 Cal. 249, 18 P.
(2d) 340, 341.
OPINION
The respondent, Angelo Benetti, was charged in a complaint filed in the police court of the
city of Reno, with violating section 2 of the city ordinance No. 473, by having in his
possession, in said city, nine carcasses of swine, the same not having been stamped, branded,
and inspected, as required by said ordinance. He pleaded not guilty, was tried and found
guilty. An appeal was taken to the district court, by which he was found not guilty.
taken to the district court, by which he was found not guilty.
The writ of review issued herein has brought up a transcript of the record and proceeding
in the action.
1. Respondents contend, as stated in their demurrer and motion to dismiss, that this court
is without authority to inquire whether the lower court exceeded its jurisdiction in finding
Benetti not guilty, because the question is moot. The contention is based upon the premise
that having been found not guilty he cannot be tried again, therefore, there is no controversy
between him and the city of Reno. No rule of law is better settled than that courts will not
determine moot or abstract questions. There must be a real controversy to engage judicial
action. State v. McCullough, 20 Nev. 154, 18 P. 756; Wedekind v. Bell, 26 Nev. 395, 69 P.
612, 99 Am. St. Rep. 704; Pacific L. Co. v. Mason Val. M. C., 39 Nev. 105, 153 P. 431; Ex
parte Ming, 42 Nev. 472, 181 P. 319, 6 A. L. R. 1216; Edwards v. City of Reno, 45 Nev. 135,
137, 198 P. 1090, 1092; California v. San Pablo, etc., Railroad Co., 149 U. S. 308, 13 S. Ct.
876, 878, 37 L. Ed. 747; 1 C. J., p. 1012.
It was stated in Edwards v. City of Reno, supra: Appellate courts do not give opinions on
moot questions or abstract propositions.
In California v. San Pablo, etc., Railroad Co., supra, the principle was thus stated: The
duty of this court, as of every judicial tribunal, is limited to determining rights of persons or
of property which are actually controversed in the particular case before it. When, in
determining such rights, it becomes necessary to give an opinion upon a question of law, that
opinion may have weight as a precedent for future decisions. But the court is not empowered
to decide moot questions or abstract propositions, or to declare, for the government of future
cases, principles or rules of law which cannot affect the result as to the thing in issue in the
case before it. No stipulation of parties or counsel, whether in the case before the court or in
any other case, can enlarge the power, or affect the duty, of the court in this regard."
in the case before the court or in any other case, can enlarge the power, or affect the duty, of
the court in this regard.
In Mills v. Green, 159 U. S. 651, 16 S. Ct. 132, 133, 40 L. Ed. 293, the court declared:
The duty of this court, as of every other judicial tribunal, is to decide actual controversies by
a judgment which can be carried into effect, and not to give opinions upon moot questions or
abstract propositions, or to declare principles or rules of law which cannot affect the matter in
issue in the case before it.
2. The matter which was in issue in the court below, namely, the guilt or innocence of
defendant under the city ordinance, has been disposed of by the judgment of the district court.
Petitioner concedes that it may not again be put in issue because the defendant cannot be
retried upon said charge. There is, therefore, no controversy between defendant and the city of
Reno to be determined by this court.
3. Petitioner calls attention to sections 11084 and 11091 N. C. L. By the former the state
may appeal in a criminal action, and by the latter such appeal shall in no case stay or affect
the operation of a judgment in favor of a defendant, with certain expectations. Petitioner
contends, therefore, that in such a case where the judgment is of acquittal the court
necessarily determines a moot question, because the defendant cannot be retried. It may be
conceded that such is the effect intended by those statutes, but they have no application here
because the action in the court below is not being heard on appeal. We are not empowered to
enlarge the scope of those statutes.
The writ is dismissed, and the judgment of the district court is affirmed.
____________
58 Nev. 329, 329 (1938) Ambassador Gold Mines, Ltd. v. Mollart
In the Matter of the Arbitration of Controversy Between EDWARD W. MOLLART AND
AMBASSADOR GOLD MINES, LTD., a Corporation.
AMBASSADOR GOLD MINES, LTD., a Corporation, Petitioner, v. EDWARD MOLLART,
Respondent.
No. 3174
ON DEMURRER TO THE PETITION
March 1, 1937. 65 P. (2d) 676.
1. Exceptions, Bill of.
Where district judge acting in place of deceased trial judge stuck from bill of exceptions for review or
order denying motion to vacate award of arbitrators the statement that two of the arbitrators acted without
notice to the parties or their attorneys, without evidence, without the knowledge or consent of the
complaining party, and without notice to the other arbitrator, petition to supreme court for leave to prove
such facts held not to show that any exception was taken so as to entitle such matter to be incorporated in a
bill of exceptions (Comp. Laws, secs. 8815, 8817; Stats. 1925. c. 90, secs. 31 (2), 32).
Statute authorizing supreme court to order lower court or clerk thereof to certify additional records or
proceedings necessary or proper to correct or complete record on appeal does not authorize supreme court
to order court hearing motion to vacate award of arbitrators, or clerk thereof, to certify matters respecting
the proceedings of the arbitrators not transpiring in the court and not appearing of record in the clerk's
office (Stats. 1935, c. 90, sec. 45).
Any ruling of the court, or any record, which should be embraced in a bill of exceptions cannot be
considered by the supreme court unless it is in a bill of exceptions properly settled.
Statute authorizing supreme court to order lower court or clerk thereof to certify additional records or
proceedings necessary or proper to correct or complete record on appeal was not intended to displace the
functions of a bill of exceptions (Stats. 1935, c. 90, sec. 45).
Original petition in the Supreme Court by the Ambassador Gold Mines, Limited, for an
order granting it leave to prove facts contained in portion of bill of exceptions stricken out
by lower court in a proceeding for arbitration of controversy between Edward W.
of exceptions stricken out by lower court in a proceeding for arbitration of controversy
between Edward W. Mollart and Ambassador Gold Mines, Limited, and directing the manner
of proving the same. On demurrer to the petition. Demurrer sustained.
George L. Sanford, for Respondent:
The paragraph excluded does not show an exception and no duty is shown requiring the
judge to allow, settle or certify it. Miller v. Miller, 36 Nev. 115, 134 P. 100; Quinn v. Quinn,
53 Nev. 68, State v. Warren, 18 Nev. 459, 5 P. 134.
The record is in the bill of exceptions, and speaks for itself. It shows no evidence was
adduced before Judge Walsh as to the appraisers' acts outside of court. Therefore, none can be
remembered or summarized or inserted in a bill of exceptions, or proved now. When the trial
court settles the bill of exceptions in keeping with the documents of record and the evidence
preserved or within memory, its duty is done, and the certificate is deemed true. Lewis v.
Hyams, 25 Nev. 242, 59 P. 376.
Section 45, chapter 90, Statutes 1935, which superseded sec. 9404 N. C. L., is inapplicable
in this proceeding. Water Co. v. Tonopah Belmont, 49 Nev. 172, 241 P. 1079; Brockman v.
Ullom, 52 Nev. 267, 286 P. 417, 241 P. 1079; Quinn v. Quinn, 53 Nev. 68, 292 P. 620;
Brearley v. Arobio, 54 Nev. 385, 19 P. (2d) 432; Taylor v. Taylor, 56 Nev. 100, 45 P. (2d)
603; Wittenberg v. Wittenberg, 56 Nev. 442, 56 P. (2d) 619.
Morley Griswold and George L. Vargas, for Petitioner:
The cases which have given occasion for this court to consider sec. 45, chap. 90, Statutes
1935, have referred particularly to the power of this court to issue orders to the lower court
or the clerk thereof, for the certification to the supreme court of additional records or
proceedings. The statute is broad enough, however, to empower this court to "take such
steps and issue such orders * * * as shall be necessary or proper to correct or complete
the record on appeal."
to empower this court to take such steps and issue such orders * * * as shall be necessary or
proper to correct or complete the record on appeal. Brockman v. Ullom, 52 Nev. 263, 286 P.
417.
In the other cases this court has indicated that the statute in question is to be given a liberal
construction in order to secure in each case a decision upon the merits. Picetti v. Orcio, 56
Nev. 1, 41 P. (2d) 289; Boyd v. Hough, 56 Nev. 123, 127, 47 P. (2d) 381, 382; City of Fallon
v. Churchill County B. M. Corp., 57 Nev. 9, 54 P. (2d) 273; Taylor v. Taylor, 56 Nev. 100,
45 P. (2d) 603.
OPINION
Ambassador Gold Mines, Limited, hereinafter referred to as the petitioner, filed in this
court a petition alleging that on December 23, 1933, one Edward W. Mollart, hereinafter
referred to as respondent, and the petitioner submitted to arbitration, by written instrument, in
accordance with the provisions of chapter 38 N. C. L. (vol. 4, p. 2638, sec. 8811 et seq.), a
controversy arising in Lyon County, Nevada, involving damages claimed by said respondent
from said petitioner. The petition also alleges that the respondent selected W. L. Blackwell as
arbitrator, and that said petitioner selected D. C. Randall as arbitrator, and that thereafter the
court appointed J. M. Maionchi as the third arbitrator; that thereafter W. L. Blackwell and J.
M. Maionchi, two of said arbitrators, filed their award, which included a finding that
petitioner should pay to the said respondent the sum of $8,000; that said award was made by
said two arbitrators without notice to D. C. Randall, the arbitrator appointed by petitioner,
and without the aid, advice, and consent or acquiescence of said D. C. Randall, and also
without notice to either of the parties or their respective attorneys, and without the
production or introduction or consideration of any sworn testimony or documentary
evidence, and without the knowledge or consent of the petitioner, a corporation.
of the parties or their respective attorneys, and without the production or introduction or
consideration of any sworn testimony or documentary evidence, and without the knowledge
or consent of the petitioner, a corporation.
The petition further alleges that the petitioner filed in the First judicial district court of
Nevada a notice of motion to vacate said award of said arbitrators, together with an affidavit
in support thereof, whereupon an affidavit in opposition thereto was filed by respondent; that
thereafter said motion to vacate came on for hearing before the Honorable J. Emmett Walsh,
district judge, who denied the same; that thereafter petitioner argued before the judge a
motion for a new trial and a motion to recall and perpetually stay execution, which were
overruled; that thereafter petitioner took steps to appeal said matter to the supreme court of
Nevada, including the preparation of a bill of exceptions.
It is further alleged that before the said bill of exceptions could be prepared and submitted
to the said Hon. J. Emmett Walsh for settlement, said Walsh died; that on the two
above-mentioned hearings before the said judge no record was made; that your petitioner, in
preparing said bill of exceptions, included the following:
That thereafter, without notice to either of the parties or their respective attorneys, and
without the production or introduction or consideration of any sworn testimony or
documentary evidence, and without the knowledge or consent of the Ambassador Gold
Mines, Ltd., a corporation, the said arbitrators, to-wit: W. L. Blackwell and J. M. Maionchi
without notice to the said D. C. Randall, and without his aid, advice and consent or his
acquiescence, made and entered their findings on arbitration in words and figures as follows,
to-wit.
The petition further alleges that upon objection by the respondent to the above-quoted
portion of the bill of exceptions the same was stricken, on September 3, 1936, from the
bill of exceptions, by the Honorable Thomas F.
the respondent to the above-quoted portion of the bill of exceptions the same was stricken, on
September 3, 1936, from the bill of exceptions, by the Honorable Thomas F. Moran, district
judge, to whom said matter had been assigned after the death of the said Walsh; that the
portion so ordered stricken is a true statement of facts material to the appeal of your petitioner
in this matter; that at the conclusion of the two hearings before the Honorable J. Emmett
Walsh, said facts were known to said judge as having appeared by admissions of counsel and
otherwise in said hearings before him, and if petitioner had had an opportunity to present said
bill of exceptions to said judge for settlement, that petitioner believes and has every right to
believe that said bill of exceptions would have been approved by said Judge Walsh without
striking out the above-quoted portion.
The petition herein prays that an order be entered by this court granting petitioner leave to
prove the facts contained in that portion of the bill of exceptions so stricken out and directing
the manner of proving the same.
To said petition respondent filed a demurrer, upon the following grounds: (1) That said
petition does not state facts sufficient to constitute a cause of action or to entitle petitioner to
any relief whatsoever; (2) that it does not appear from said petition that there has been any
refusal by any district judge or by Honorable T. F. Moran, district judge presiding in said
matter, as judge or otherwise, to allow any exception in accordance with the facts or at all; (3)
that this court has no jurisdiction to add to or take from any bill of exceptions or statement of
facts, settled by the judge in this action, any matter or matters, whatsoever.
1. Section 8815 N. C. L. reads:
All the arbitrators shall meet and act together during the investigation, but, when met, a
majority may determine any question. Before acting, they shall be sworn before an officer
authorized to administer oaths, faithfully and fairly to hear and examine the allegations
and evidence of the parties in relation to the matters in controversy, and to make a just
award according to their understanding."
before an officer authorized to administer oaths, faithfully and fairly to hear and examine the
allegations and evidence of the parties in relation to the matters in controversy, and to make a
just award according to their understanding.
If arbitrators W. L. Blackwell and J. Maionchi acted as charged in the petition, it is clear
that they were unfit to act in that capacity, and it may be that their action was so irregular as
to have justified the court, on proper application and showing, in vacating the award (section
8817 N. C. L.), but the real question before us is whether or not petitioner is entitled to prove
his exception as sought, pursuant to the section below quoted. In support of the demurrer,
which admits, for the purpose of this hearing, the truth of the allegations in the petition,
counsel for respondent directs our attention to subdivision 2, sec. 31, ch. 90, Stats. 1935, pp.
203, 204, and section 32 of the same act. The portion of subdivision 2, section 31, mentioned
and relied upon by respondent, reads:
When the transcript of the proceedings, as provided in subdivision (1) of this section, is
not served and filed as the bill of exceptions of the proceedings relating to the point or points
involved upon such proceedings, then the bill of exceptions shall be based and be prepared
upon a record of the proceedings made up as follows:
(a) The point of the exception shall be particularly stated, and may be delivered in writing
to the judge, or, if the party require it, shall be written down by the clerk. When delivered in
writing or written down by the clerk, it shall be made comformable to the truth, or be at the
time, or at or before the conclusion of the trial, corrected until it is so made conformable to
the truth. If the judge shall in any case refuse to allow an exception in accordance with the
facts, any party aggrieved thereby may petition the supreme court for leave to prove the same,
and shall have the right so to do, in such mode and manner and according to such regulations
as the supreme court may by rules impose, and such exceptions as are allowed by said
supreme court shall become a part of the record of the cause."
regulations as the supreme court may by rules impose, and such exceptions as are allowed by
said supreme court shall become a part of the record of the cause.
As we understand the theory of respondent, it is that a bill of exceptions can be settled
only in case of trial before a court, and that such bill of exceptions can contain no matter as
the basis of an exception unless an exception is actually taken to a ruling of the court relative
thereto. Referring to the statement sought to be incorporated in the bill of exceptions, counsel
for respondent says: The paragraph does not show an exception and no duty is shown
requiring the judge to allow, settle or certify it.
We think the matter in question and the petition fails to show that an exception was taken
so as to entitle it to be incorporated in a bill of exceptions. In fact, we do not see, from the
facts alleged in the petition, how an exception could have been taken to it. The conduct
complained of did not take place in the presence of the court, so that an objection could have
been made thereto and a ruling made by the court.
We do not wish to be understood as intimating that if petitioner applied to the court for an
order vacating the award, pursuant to section 8817 N. C. L., upon the ground that the
arbitrators or a majority of them were guilty of the acts charged in the matter sought to be
embodied in the bill of exceptions, that an exception might not be taken to an adverse ruling,
which might be embraced in a bill of exceptions. Such is not the theory of this matter, and
there is no allegation of the petition upon which such a theory could be predicated.
2. Counsel for petitioner states that petitioner is proceeding under section 45, ch. 90, Stats.
1935, which reads:
If at any time before final judgment of the supreme court is 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."
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.
It seems that petitioner has changed his position in this matter since the petition was filed.
As we have pointed out, the petition prays for an order granting him leave to prove certain
matters stricken from the bill of exceptions, and that the court prescribe the mode and manner
of making proof.
Upon reading the petition, we naturally assumed that petitioner was proceeding pursuant to
the last sentence quoted above from subdivision 2, sec. 31, ch. 90, Stats. 1935, which
provides that an aggrieved party may petition the supreme court for leave to prove an
exception in accordance with the facts.
Section 45, ch. 90, Stats. 1935, just quoted, was originally sec. 5, ch. 97, Stats. 1923,
which was carried into Compiled Laws of Nevada 1929, as section 9404. We had occasion to
refer to this provision in Water Co. v. Tonopah Belmont Dev. Co., 49 Nev. 172, 241 P. 1079,
and in Brockman v. Ullom, 52 Nev. 267, 286 P. 417, and have placed a liberal interpretation
upon the section.
3, 4. Let us consider just what is contemplated by the section in question. It provides that if
it shall be made to appear to this court that the record on appeal does not accurately or fully
state the proceedings under consideration before the trial court, this 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 correct or complete the record on appeal. What does this section contemplate that this
court can order certified up? Clearly, it can contemplate nothing more than records or
proceedings had in the court. Certainly the clerk of a trial court cannot certify to something
that does not appear of record in his office, and the court cannot certify up something that
did not transpire in the court.
appear of record in his office, and the court cannot certify up something that did not transpire
in the court. Furthermore, any ruling that may be made by a court, or any record which should
be embraced in a bill of exceptions, cannot be considered by this court unless it is in a bill of
exceptions, properly settled. It was not intended by the section in question to displace the
functions of a bill of exceptions. The matter which it is sought to have incorporated in the bill
of exceptions did not transpire in the presence of the court, and could only be brought to the
attention of the court on an application to vacate the award, pursuant to section 8817 N. C. L.
It may be that a ruling upon such an application could be embraced in a bill of exceptions, as
to which we express no opinion, as the question is not presented.
We are clearly of the opinion that the petition fails to show cause for relief, and that the
demurrer must be sustained.
It is so ordered.
On the Merits
April 6, 1938. 78 P. (2d) 93.
1. Arbitration and Award.
The purpose of the uniform arbitration act is to bring about a uniform system of
arbitrating controversies existing between individuals. Comp. Laws, secs. 510-534.
2. Statutes.
An act revising the subject matter of an old act which is plainly intended as a substitute
for the old law operates as a repeal.
The adoption of the uniform arbitration act had effect of repealing all prior statutes
dealing with submission of controversies to arbitration. Comp. Laws, secs. 510-534.
4. Execution.
Generally, an execution must follow the judgment.
Arbitration proceedings had in compliance with statute repealed by uniform arbitration
act were of no effect. Comp. Laws, secs. 510-534.
Appeal from First Judicial District Court, Lyon County; J. Emmett Walsh, Clark J. Guild,
and Thomas F. Moran, Judges.
Proceedings in the matter of the arbitration of a controversy between Edward W. Mollart
and Ambassador Gold Mines, Limited, a corporation. From a judgment entered upon an
award and from an order denying an application of Ambassador Gold Mines, Limited, a
corporation, to recall and perpetually stay writ of execution and other orders issued in favor
of Edward W. Mollart, Ambassador Gold Mines, Limited, appeals. Reversed, with
directions.
Morley Griswold and George L. Vargas, for Appellant:
It is respectfully urged that this entire attempted arbitration proceeding is null and void for
the reason that the same was attempted to be had under the provisions of chapter 38 of the
civil procedure act (secs. 8811-8820 N. C. L.), which said chapter, it is respectfully
submitted, has been repealed by a later act upon this same subject and fully covering this
same field; that is, the uniform arbitration act, being sections 510 to 534, inclusive, N. C. L.
Thorpe v. Schooling, 7 Nev. 15; State v. Rogers, 10 Nev. 319; Brady v. Husby, 21 Nev. 453,
33 P. 801; 23 Cal. Jur. 701, sec. 88; 25 R. C. L. 915.
George L. Sanford, for Respondent:
The earlier act (secs. 8811-8820 N. C. L.) has not been superseded. The repealing clause of
the uniform law reads: Sec. 25. All acts or parts of acts inconsistent with this act are hereby
repealed. The legislature assumed, therefore, that there were acts or parts of acts in existence
on the subject; that the new enactment did not exclusively occupy the field; and that it would
occupy the field only to the extent that the old act was repugnant to the new act. By refraining
from expressly repealing the old act or any part thereof, the legislature left the question
of repugnancy to the courts.
expressly repealing the old act or any part thereof, the legislature left the question of
repugnancy to the courts. Ronnow v. Las Vegas, 57 Nev. 332, 65 P. (2d) 133; State v.
Donnelley, 20 Nev. 214, 19 P. 680; Presson v. Presson, 38 Nev. 203; 23 Cal. Jur. 701; 25 R.
C. L. 915.
The two acts can stand together.
OPINION
This is an appeal from a judgment entered upon an award and from an order denying an
application to recall and perpetually stay a writ of execution, and other orders, in an
arbitration proceeding.
The appellant and respondent entered into a written agreement to submit to arbitration a
controversy existing between them. It was stipulated that each of the parties should select one
arbitrator, who were named, and that the district judge should select a third, who should
arbitrate the matter and report their award to the court. It was also stipulated that the
agreement of submission to arbitration should be entered as an order of court, and that the
submission is made in conformity with and pursuant to the provisions of chapter 38 N. C. L.
1929. Other stipulations need not be now stated.
After the appointment of the third arbitrator by the court, the arbitrator selected by
respondent and the one appointed by the court met and made an award in favor of the
respondent to the effect that appellant should purchase of respondent certain property for
$8,000.
Thereafter judgment was entered by the clerk upon the award in the following words: It is
hereby adjudged and determined that Ambassador Gold Mines, Ltd., a corporation, should
purchase the property described in the submission to arbitration and stipulation on file herein
for the sum of $S,000 cash and that the said Edward W. Mollart should and shall be
allowed to remain on the premises described, before removing his said personal property
and a dwelling house and gasoline pump belonging to one Warren Mollart, located
thereon, for a period of one hundred and twenty {120) days {or to May 15, 1934) from the
date of payment by Ambassador Gold Mines, Ltd., all in accordance with the award on file
herein."
herein for the sum of $8,000 cash and that the said Edward W. Mollart should and shall be
allowed to remain on the premises described, before removing his said personal property and
a dwelling house and gasoline pump belonging to one Warren Mollart, located thereon, for a
period of one hundred and twenty (120) days (or to May 15, 1934) from the date of payment
by Ambassador Gold Mines, Ltd., all in accordance with the award on file herein.
Later, and on December 28, 1934, the court, on application of the respondent, ordered the
issuance of an execution, in words and figures following: It is ordered that the sheriff of
Lyon County shall forthwith serve upon Ambassador Gold Mines, Ltd., a copy of this order,
together with a certified copy of the said award and judgment and that the writ of execution
shall issue out of this court under the seal of court, commanding said sheriff to make the
amount of said judgment, to wit, $8,000, together with interest thereon at the rate of 7% per
annum from January 30, 1934, and accruing costs and that unless said Ambassador Gold
Mines, Ltd., shall make payment to the clerk of the amount of said judgment with interest and
accruing costs, and accept said conveyances within (5) days from the service of said order and
copy of award, that he proceed forthwith to levy said writ, in accordance with law.
It is contended by appellant that the judgment and the various orders appealed from should
be reversed, for numerous reasons, and, among them, because the act under which the
submission was made and the court proceedings had was repealed by the Uniform
Arbitration Act, approved February 10, 1925, Laws 1925, c.7, the same being sections 510
to 534, inclusive, N. C. L.
We think the contention just stated well founded.
The title of the Uniform Arbitration Act reads: An Act concerning arbitration, to make
uniform the law with reference thereto.
1. The very purpose of the act just mentioned is to do all that is in the power of the
legislature to bring about a uniform system of arbitrating controversies existing between
individuals.
do all that is in the power of the legislature to bring about a uniform system of arbitrating
controversies existing between individuals. This is manifest from the language in the title of
the act, to make uniform the law with reference to arbitration, as well as from section 25
thereof, Comp. Laws, sec. 534, repealing all acts inconsistent with it.
2. There is no better established rule of law than that an act revising the subject matter of
an old act, which is plainly intended as a substitute for the old law, operates as a repeal. This
rule has been recognized by numerous decisions of this court. Thorpe v. Schooling, 7 Nev.
15; State v. Rogers, 10 Nev. 319; Gill v. Goldfield Consol. Mines Co., 43 Nev. 1, 176 P. 784,
184 P. 309. See, also, 59 C. . 921.
3. If we look to specific sections of the two acts, there is no escaping the conclusion that
the first act is repealed by the latter. For instance, section 318 of the original act, section 8816
N. C. L. provides that when the submission to arbitration is made an order of the court that
the award shall be entered by the clerk in the judgment book and shall thereupon have the
effect of a judgment, whereas the latter law, in sections 15 to 18, section 524 to 527 N. C. L.
contemplate the confirming, vacating, modifying, or correcting of the award, and section 19,
section 528 N. C. L., contemplates the entry of judgment or decree, not by the clerk, but by
the court. This is such a radical variance that it must be said that the provision in chapter 38
for the entry of judgment by the clerk is repealed.
4. There is a general rule to the effect that an execution must follow the judgment. 23 C. J.
402, 403, note 68, citing Nevada cases. The execution ordered herein does not follow the
purported judgment.
Something is said in the briefs to the effect that the award is good as a common-law
award. As to that we express no opinion.
5. In view of our conclusion that the act under which this proceeding was instituted was
repealed, we think the judgment and the order repealed from denying appellant's
application to recall and permanently stay the execution should be reversed.
this proceeding was instituted was repealed, we think the judgment and the order repealed
from denying appellant's application to recall and permanently stay the execution should be
reversed.
It is so ordered. It is further ordered that the lower court vacate and set aside the judgment
entered by the clerk of the court and the order directing the issuing of an execution herein,
and make an order recalling the execution herein.
____________
58 Nev. 342, 342 (1938) Walsh Ex Rel. v. Buckingham
THE STATE OF NEVADA on Relation of ELIZABETH WALSH, Relator, v. D. M.
BUCKINGHAM, Clerk and Ex Officio Treasurer of Mineral County, Nevada, and T. O.
McKINNON, M. PETERSON AND H. BOERLIN, Constituting the Board of County
Commissioners of the County of Mineral, State of Nevada, Respondents.
No. 3233
July 1, 1938. 80 P. (2d) 910.
1. Mandamus.
Mandamus lies to compel the performance of an act which the law especially enjoins as a duty resulting
from an office, trust, or station. Comp. Laws, sec. 9242.
2. Statutes.
A statute which by reference is made a part of another law becomes incorporated in the other law and
remains so as long as the statute is in force.
3. Statutes.
Where a statute refers to another law generally which governs the particular subject and not to a
particular act by title or otherwise, the reference will be regarded as signifying and including the law in
force on the subject at the time it is invoked.
4. Counties-Statutes.
In determining duties of commissioners of Mineral County regarding payment of bonds sold under statute
authorizing such sale for construction of waterworks, statute was to be taken together with statute providing
that expenses incident to a waterworks shall be paid out of moneys acquired by sale of water service,
and that surplus be assigned to county commissioners as redemption fund for
payment of bonds, so that commissioners were required to collect tax for payment of
bonds and interest, place proceeds in redemption fund, and place money acquired
through sale of water service in a contingent fund to pay expenses of waterworks
and transfer surplus to redemption fund.
of water service, and that surplus be assigned to county commissioners as redemption fund for payment of
bonds, so that commissioners were required to collect tax for payment of bonds and interest, place
proceeds in redemption fund, and place money acquired through sale of water service in a contingent fund
to pay expenses of waterworks and transfer surplus to redemption fund. Comp. Laws, secs. 1327-1340; sec.
1335; Stats. 1935, c. 139, secs. 5, 7, 8.
Original mandamus proceeding by the State of Nevada, on the relation of Elizabeth Walsh,
against D. M. Buckingham, Clerk and Ex Officio Treasurer of Mineral County, Nevada, and
others, constituting the Board of County Commissioners of Mineral County, State of Nevada,
to compel the payment of certain bonds and the assignment of certain funds for the purpose of
such payment. Writ issued.
Thatcher & Woodburn, for Relator:
In order to determine the duty of respondents in respect to the Mina bonds, one is required
not only to examine the provisions of chapter 139, Stats. 1935, but, by reason of section 8
thereof, is required to look to existing laws governing acquisition of utilities, etc., and to
determine therefrom the official duties of the Mineral County officials as to the management
and financing of the Mina water system. Davison v. Heinrich, 172 N. E. 770; State v. District
Court, 83 Mont. 400, 272 P. 525; 59 C. J. 1059; State ex rel. Fritz v. Congwer, 151 N. E. 752.
At the date of the enactment of chapter 139, Stats. 1935, there existed an act passed in
1911 (secs. 1327 to 1340 N. C. L.), enabling unincorporated cities and towns to acquire water
systems and other public utilities, to issue bonds for construction or purchase of the same,
providing for the fixing and collection of rates for services, and other matters relating thereto.
It will be observed that when this statute, and particularly section 9 thereof, is read with the
statute of 1935, the system to be employed for the payment of Mina water bonds was
substantially as follows: 1.
1. A tax was to be levied for the payment of the bonds and the proceeds thereof placed in
the Mina water bond and interest redemption fund.
2. The moneys acquired by the sale of services was to be placed in a contingent fund and
the expenses of operation paid therefrom, but at the beginning of each year all surplus moneys
in such contingent fund were required to be transferred to the bond and interest redemption
fund by the county commissioners.
Section 1237 N. C. L. specifically provides that county treasurers, upon presentation of
bonds and demand made for payment therefor, or for interest, shall pay the same.
Edward F. Lunsford, for Respondent D. M. Buckingham, did not file a brief.
OPINION
This is an original proceeding in mandamus. By her amended petition relator seeks to
compel the payment of certain bonds and the assignment of certain funds for the purpose of
such payment. The amended petition shows substantially as follows: Prior to February 5,
1936, the town of Mina, Mineral County, Nevada, was organized as a town under general
laws. The legislature at the 1935 session enacted a statute, chapter 139, Statutes of 1935,
which authorized the county commissioners of Mineral County, acting as a town board for the
town of Mina, to issue bonds for the purpose of providing a waterworks for such town. Under
the authority of this statute the board of county commissioners, acting as a town board for the
said town of Mina, duly issued and sold to relator $20,000 in interest-bearing bonds, the same
being numbered 1 to 40, inclusive, in the principal sum of $500 each, bearing interest at the
rate of six percent {6%), payable semi-annually on the first Monday of January and July
of each succeeding year starting on the first Monday in July 1936.
interest at the rate of six percent (6%), payable semi-annually on the first Monday of January
and July of each succeeding year starting on the first Monday in July 1936. The bonds were
coupon bonds and the interest coupons were in the sum of $15 each. Bonds numbered 1, 2,
and 3 were to become due and payable on the first Monday in January 1938, and three bonds
maturing on the first Monday in January in each year thereafter until the full amount of the
indebtedness had been paid.
After the first Monday in January 1938, and the first meeting of said board in that year,
relator presented to respondent, county treasurer, bonds 1, 2, and 3, then due and payable,
together with 40 coupons in the amount of $15 each, and demanded payment. There was then
due relator $1,500 on the three bonds presented, and $600 interest. The county treasurer
refused to pay the principal of the three bonds or the interest due on all thereof, or any part of
said principal or interest, and still refuses to pay the same.
Prior to the first meeting of the county commissioners in January 1938, there existed a
surplus of moneys in a fund of Mineral County known as The Mina Contingent Water
System Fund of $892.63, which moneys were acquired from the sale of services from the
town of Mina water system, under the provisions of said chapter 139.
At that time of the presentation of said matured bonds and said coupons for interest, then
due, and demand for payment thereof upon said county treasurer, there was in his hands and
possession as such county treasurer, in a special fund known as the Mina Water Bond and
Interest Redemption Fund, moneys in the sum of $293.30, and there now is therein the sum
of $486.91 acquired from the levy of taxes. At all times since said first meeting of the board
of county commissioners in the month of January 1938, the surplus moneys in the Mina
Contingent Water System Fund have exceeded said amount of $892.63, and now amount to
sufficient, together with the moneys in the "Mina Water Bond and Interest Redemption
Fund," to pay the bonds and interest coupons heretofore presented by relator for
payment.
together with the moneys in the Mina Water Bond and Interest Redemption Fund, to pay
the bonds and interest coupons heretofore presented by relator for payment. At the time of
said presentation and demand for payment there was in the two funds a sum in excess of
$1,100.
It is alleged in the amended petition that it is the duty of the board of county
commissioners of Mineral County to assign the surplus moneys in the Mina Contingent
Water System Fund to the Mina Water Bond and Interest Redemption Fund, and has been
its duty ever since the first meeting in January 1938, which it has failed to do. It is also
alleged in the amended petition that it was the duty of the county treasurer at the time of the
presentation and demand for payment by relator and ever since has been his duty to pay the
principal of said three bonds and interest, or as much thereof as might be paid from the
moneys in said redemption fund. Upon the presentation and hearing of the amended petition
an amended alternative writ of mandate issued directing respondent commissioners to make
the assignment prayed for, and respondent county treasurer to make the payment demanded,
or as much thereof as might be paid from the moneys in his hands by reason of such
assignment, or in said redemption fund, or show cause for not doing so. Respondent
commissioners made no return to said amended alternative writ.
A return was made by respondent county treasurer in which he admitted most of the
allegations of the amended petition. As to such as pertained to the duty of the commissioners
to assign moneys from the former fund to the latter, he disclaimed knowledge and
information sufficient to base a belief. He alleged that at the time of said presentation and
demand there was not and is not at the present time moneys in the redemption fund sufficient
to make payment of the three bonds and interest, and that this fund is the only fund out of
which he is authorized by law to make payment and redeem the bonds and interest, and
on that account he was unable to perform his duty in that respect.
which he is authorized by law to make payment and redeem the bonds and interest, and on
that account he was unable to perform his duty in that respect. He alleged that his failure to
pay any part or portion thereof out of the small balance in the redemption fund was due to the
fact that he was advised and believed that he could not pay any amount thereon less than the
whole amount when due and that no demand or request was made on him by relator for the
payment of any amount less than the whole thereof. There is no contention on the part of
respondent that relator's bonds are not valid bonds or that relator is not now entitled to
payment of the first three bonds and interest on all thereof.
If it is now and was the duty of the respondent commissioners at the first meeting of the
board to assign the surplus moneys in the Mina Contingent Water System Fund to the
Mina Water Bond and Interest Redemption Fund, the peremptory writ must issue against
respondents. Humboldt County v. County Commissioners of Churchill County, 6 Nev. 30. In
the foregoing case it was held to be the only plain, speedy and adequate remedy to compel
county commissioners to set apart certain funds in the treasury for a specific purpose when by
statute they were absolutely required to do so and failed or neglected to do their duty in that
regard.
The act under which the bonds were issued and sold, being chapter 139, Statutes of 1935,
provides in part as follows:
Sec. 5. To provide for the payment of said bonds and the interest thereon the board of
county commissioners shall levy and collect annually a special tax on the assessed value of all
property, both real and personal, subject to taxation, including proceeds of mines, within the
boundaries of the town of Mina, Mineral County, until such bonds and interest thereon shall
have been fully paid, sufficient to pay the interest on said bonds and to pay and retire
{beginning with the bond number one, and consecutively thereafter) six of said bonds
annually, beginning with the first Monday in January of the second year after said bonds
are issued, and on the first Monday in January of each year thereafter until all of said
bonds have been redeemed or retired.
bonds and to pay and retire (beginning with the bond number one, and consecutively
thereafter) six of said bonds annually, beginning with the first Monday in January of the
second year after said bonds are issued, and on the first Monday in January of each year
thereafter until all of said bonds have been redeemed or retired. Such tax shall be levied and
collected in the same manner and at the same time as other taxes are assessed and collected,
and the proceeds thereof shall be kept by the county treasurer in a special fund to be known as
Mina Water Bond and Interest Redemption Fund.' Said bonds and interest shall be paid from
this fund. * * *
Sec. 7. Whenever the county treasurer shall redeem any of the bonds issued under the
provisions of this act, he shall cancel the same by writing across the face thereof Paid,' * * *.
Should the holder of said bonds, or any of them, for any cause whatever, fail to present said
bonds to the said county treasurer for payment when they become due, all interest on such
bonds shall thereafter immediately cease.
1. It is seen from the above that the relator's claim required no approval of either the board
of county commissioners or auditor, but that it is the explicit duty of the county treasurer to
redeem the bonds when due and presented for payment. Mandamus lies to compel the
performance of an act which the law especially enjoins as a duty resulting from an office,
trust, or station. Section 9242 Nevada Compiled Laws. The duty of respondent
commissioners to make the assignment claimed by relator does not appear from the
provisions of said chapter 139. However, section 8 thereof provides:
Sec. 8. The provisions of the existing law respecting the manner of acquisition of utilities,
advertising notice of intention to issue bonds, bond elections, the duty of commissioners to
act on a proper petition, the collection and enforcement of collection of rates for service, and
all other provisions not expressly superseded by this act shall apply to the acquisition,
management, and financing of the systems mentioned in this act."
by this act shall apply to the acquisition, management, and financing of the systems
mentioned in this act.
We must therefore look to the coexisting law respecting the manner of acquiring utilities,
etc., to ascertain fully the duties incumbent on the county commissioners in managing and
financing the water system acquired in the instant case.
2. A statute by reference made a part of another law becomes incorporated in it and
remains so as long as the former is in force. This has long been held an effective mode of
legislation. Davison v. Heinrich, 340 Ill. 349, 172 N. E. 770; State ex rel. Hahn v. District
Court, 83 Mont. 400, 272 P. 525; State ex rel. Fritz v. Gongwer, 114 Ohio 642, 151 N. E.
752; 59 C. J. 1059.
3. Where the reference, as in the case at bar, is to the law generally, the rule is stated in
Davison v. Heinrich, supra, as follows (page 771): It is a well-settled rule of statutory
construction that, where the reference in an adopting statute is to the law generally which
governs the particular subject and not to a particular act, by title or otherwise, the reference
will be regarded as signifying and including the law in force on the subject at the time it is
invoked. People v. Kramer, 328 Ill. 512, 160 N. E. 60; People v. Crossley, 261 Ill. 78, 103 N.
E. 537; Culver v. People ex rel. Kochersperger, 161 Ill. 89, 43 N.E. 812.
When chapter 139, Statutes of 1935, was enacted, there existed an act still in force
entitled: An Act to enable the incorporated cities and towns of the State of Nevada to
acquire by construction, purchase or otherwise, sewerage systems, light systems, water
systems, or combined water and light systems, or combined water, light and sewerage
systems, and to issue bonds for the construction or purchase of the same, and to provide for
the fixing and collections of rates for the service thereof and other matters relating thereto.
Approved March 23, 1911, chapter 169. See sections 1327 to 1340 of Nevada Compiled
Laws. Section 9 of said act (section 1335 N. C. L.) provides: All moneys acquired by the
sale of service herein provided for shall be paid to the county treasurer and by him
assigned to a fund to be known as the '_______ Contingent Light,' 'Contingent Water,'
'Contingent Sewerage,' 'Contingent Water and Light' or 'Contingent Sewerage, Water and
Light Fund of _______ town,' inserting before the word 'Contingent' the name of the
town to which said fund is credited; the contingent expense necessary to the installment,
management and control of any system acquired under the provisions of this act shall
first be paid out of said fund; the surplus money remaining after the payment of such
contingent expenses shall annually thereafter and at the first meeting of the board of
commissioners in January of each year thereafter be assigned by the county
commissioners to the city as a redemption fund for the payment of the bonds issued
under the provisions of this act.
acquired by the sale of service herein provided for shall be paid to the county treasurer and by
him assigned to a fund to be known as the _______ Contingent Light,' Contingent Water,'
Contingent Sewerage,' Contingent Water and Light' or Contingent Sewerage, Water and
Light Fund of _______ town,' inserting before the word Contingent' the name of the town to
which said fund is credited; the contingent expense necessary to the installment, management
and control of any system acquired under the provisions of this act shall first be paid out of
said fund; the surplus money remaining after the payment of such contingent expenses shall
annually thereafter and at the first meeting of the board of commissioners in January of each
year thereafter be assigned by the county commissioners to the city as a redemption fund for
the payment of the bonds issued under the provisions of this act. No interest shall be paid on
said bonds after their maturity.
4. This section must, under the rule above stated, be taken in connection with the
provisions of chapter 139, Statutes 1935. So considered, the two statutes reveal the following
duties imposed on the county commissioners of Mineral County relative to the payment of the
bonds issued and sold under the provisions of said chapter 139: They must levy and collect a
tax for the payment of the bonds and interest and place the proceeds thereof in the Mina
Water Bond and Interest Redemption Fund. They must place all moneys acquired by the sale
of services of the Mina water system in a contingent fund and pay the expenses necessary to
the installment, management and control of such system therefrom. At their first meeting in
January of each year they must transfer all surplus moneys remaining in said contingent fund
to the bond and interest redemption fund. The latter duty has not been performed.
It is ordered that the peremptory writ of mandate issue herein commanding respondents, T.
O. McKinnon, M. Peterson, and H. Boerlin, constituting the board of county commissioners
of Mineral County, Nevada, forthwith upon the receipt of the writ to assign to the city of
Mina as a redemption fund for the payment of relator's bonds issued under the provisions
of chapter 139, Statutes of 1935, and interest thereon, all surplus moneys which were at
the first meeting of said board in the month of January 193S, and now are, held in the
"Mina Contingent Water System Fund," and commanding respondent D. M. Buckingham,
as County Treasurer of Mineral County, Nevada, forthwith upon said assignment, to pay to
relator Elizabeth Walsh from the funds in his possession as County Treasurer of Mineral
County, Nevada, in the "Mina Water Bond and Interest Redemption Fund," together with
any moneys so assigned by said board of county commissioners, the principal sum due
upon those certain bonds, Nos.
county commissioners of Mineral County, Nevada, forthwith upon the receipt of the writ to
assign to the city of Mina as a redemption fund for the payment of relator's bonds issued
under the provisions of chapter 139, Statutes of 1935, and interest thereon, all surplus moneys
which were at the first meeting of said board in the month of January 1938, and now are, held
in the Mina Contingent Water System Fund, and commanding respondent D. M.
Buckingham, as County Treasurer of Mineral County, Nevada, forthwith upon said
assignment, to pay to relator Elizabeth Walsh from the funds in his possession as County
Treasurer of Mineral County, Nevada, in the Mina Water Bond and Interest Redemption
Fund, together with any moneys so assigned by said board of county commissioners, the
principal sum due upon those certain bonds, Nos. 1, 2, and 3, issued under the provisions of
chapter 139, Statutes 1935, and in the total sum of $1,500, together with the sum of $15 for
each coupon now due upon bonds Nos. 1 to 40, inclusive, issued under the aforesaid statute,
or as much thereof as may be paid from the moneys then in his hands by reason of said
assignment.
____________
58 Nev. 352, 352 (1938) Holmes v. District Court
R. F. HOLMES, Petitioner, v. SECOND JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, in and for the County of Washoe, HON. B. F. CURLER, District Judge
Thereof, and W. A. GRIFFITH, Respondents.
No. 3232
July 7, 1938. 80 P. (2d) 907.
1. Justices of the Peace.
Justification by the sureties on the undertaking of a party appealing from a justice court is essential to
give district court jurisdiction of the appeal. Comp. Laws, sec. 9339.
Where a surety bond is given on appeal instead of an appeal bond with individual sureties, failure of the
surety to justify, when properly challenged, is a jurisdictional defect and fatal to the appeal. Comp. Laws,
secs. 7627, 7630.
Where, on appeal from justice court to district court, one of two sureties on appellant's undertaking failed
to justify, justice fixed time for substitute sureties to justify, but justice took judicial notice of sufficiency of
new surety, approved appellant's second appeal bond, and transmitted it to district court before the time
fixed, although requested by appellant not to do so, there was no justification as required for appeal, since
appellee was deprived of right to show that surety was not worth the amount of the undertaking. Comp.
Laws, secs. 7627, 7630, 9339.
The right of an adverse party to disprove sufficiency of surety on appellant's appeal bond is an essential
part of a legal justification when an exception had been duly taken to the surety's justification. Comp.
Laws, secs. 7627, 7630.
to justify, justice set time for substitute sureties to justify but took judicial notice of sufficiency of new
surety, approved appellant's second appeal bond, and transmitted it to district court before the time fixed,
although requested by appellant to forego such premature approval, court properly refused to dismiss
appeal on ground that district court had no jurisdiction, since appellant was not chargeable with negligence.
Comp. Laws, secs. 7627, 7630, 9339.
to justify, justice set time for substitute sureties to justify but took judicial notice of
sufficiency of new surety and approved appellant's second appeal bond and
transmitted it to district court before the time fixed, although requested by appellant
to forego such premature approval, appellant was not negligent in not resorting to
mandamus to compel the justice to forego approval, since the remedy was not
available.
justice set time for substitute sureties to justify but took judicial notice of sufficiency of new surety and
approved appellant's second appeal bond and transmitted it to district court before the time fixed, although
requested by appellant to forego such premature approval, appellant was not negligent in not resorting to
mandamus to compel the justice to forego approval, since the remedy was not available. Comp. laws, secs.
7627, 7630, 9339.
When a party has taken all steps necessary to perfect and make effective his appeal from the justice court,
he should not be chargeable with any fault or omission of the justice which statute requires the justice to
do. Comp. Laws, secs. 7627, 7630, 9339.
Appeals are generally favored and not to be defeated by a strained statutory construction.
Original proceeding in certiorari by R. F. Holmes against the Second Judicial District
Court of the State of Nevada, in and for the county of Washoe, and others, to review the
action of the court in denying the petitioner's motion to dismiss an appeal from a justice of the
peace and in making an order fixing a date for trial of the cause de novo. Writ dismissed.
R. K. Wittenberg and R. S. Flanary, for Petitioner:
The failure of sureties on an undertaking on appeal to justify after demand therefor is a
jurisdictional defect depriving an appellate court of jurisdiction over the proceeding. Yowell
v. District Court, 39 Nev. 423, 159 P. 632; Hough v. Roberts Min. & Mill. Co., 58 Nev. 245,
75 P. (2d) 731. Certiorari is the proper remedy. Yowell v. District Court, supra.
A court cannot take judicial notice of the affairs of a private corporation acquired in
previous litigation. Wigmore on Evidence, 2d. Ed., vol. 5, p. 567; 15 R. C. L. pp. 1058, 1118.
A court cannot substitute its personal knowledge for evidence on a litigated matter. 15 R.
C. L. 1060.
Even if the justice were permitted to rely upon his own personal knowledge, litigants
should still have an opportunity to present contrary evidence, and in this instance there
was no opportunity whatever to do so.
own personal knowledge, litigants should still have an opportunity to present contrary
evidence, and in this instance there was no opportunity whatever to do so.
It is well settled that jurisdiction of the subject matter of an action, as distinguished from
jurisdiction over the person of the litigants, cannot be conferred even by the consent of the
parties. Jasper v. Jewkes, 50 Nev. 153; 7 R. C. L. 1039. Since such power to act cannot be
acquired by the litigants' consent, it likewise could not be acquired by their own neglect or
omission, nor by the neglect or omission of the justice of the peace.
Clearly the respondent could, by mandamus, have compelled the justice of the peace to act
in accordance with the required procedure. He could have been present at the appointed time
with the instruments sufficient to justify the surety company, notwithstanding the attitude of
the justice.
But even if the respondent could not have secured the proper action, by mandamus or
otherwise, and, consequently, the failure to comply with the jurisdictional requirements was
solely the result of the neglect or omission of the justice of the peace, nevertheless petitioner,
by such neglect or omission, has been denied a fundamental right, the right to a hearing, a
trial, of a disputed fact, through no fault of his own.
McCarren, Rice & Bible, for Respondents:
By reason of the action on the part of the justice in preventing and precluding W. A.
Griffith from justifying the surety on his appeal bond, as provided by statute, he, W. A.
Griffith, cannot be denied his statutory right of appeal. Struber v. Rohlfs (Kans.), 12 P. 830;
Holmes v. Yoke, (W. Va.), 37 S. E. 545; Chicago, R. T. & P. Ry. Co. v. Elsing, 152 P. 1091;
Hillyer's Justice's Code, sec. 1351, p. 732, n.8; 35 C. J. 747, nn. 9, 10 and 11.
Sections 7630 and 7633 N. C. L. do not attempt to lay down an exclusive method of
justification for corporate sureties, but only lay down one method therefor.
lay down an exclusive method of justification for corporate sureties, but only lay down one
method therefor. And the justice having, in the exercise of his jurisdiction, approved the
sufficiency of the surety, the objection that he did so upon improper and insufficient evidence
raises a question of error, and not of jurisdiction. San Francisco-Oakland Terminal Rys. v.
Superior Court (Cal.), 192 P. 116; 23 C. J. 61; Budd v. Superior Court (Cal.), 111 P. 628.
In both the cases cited by petitioner, Yowell v. District Court, 39 Nev. 423, 159 P. 632,
and Hough v. Roberts Min. & Mill. Co., 58 Nev. 245, 75 P. (2d) 731, there was a failure on
the part of the appellants to comply with statutory provisions, as distinguished from the case
at bar, wherein W. A. Griffith was prevented and precluded from complying with the statute
by the justice of the peace.
OPINION
Original proceeding in certiorari. The salient facts are as follows: Petitioner commenced
an action in the justice court of the county of Washoe against W. A. Griffith and Mrs. W. A.
Griffith. Griffith, who will hereinafter be referred to as respondent, answered and, after trial,
judgment was rendered against him on the 13th day of April 1937. Respondent caused a
notice of appeal to the Second judicial district court in and for said county, to be filed in the
justice court and served on petitioner, on the 4th day of May 1937. On the same day
respondent filed and served an undertaking on appeal with two sureties. Three days later
petitioner duly excepted to said sureties and thereafter, one of them having failed to justify,
the justice fixed the hour of 4:00 p.m. on May 12, 1937, as the hour for the substitute surety
or sureties to justify. At about 10 o'clock a.m. of the latter day, without notice to petitioner,
respondent caused to be filed in said justice court a second appeal bond executed by the
Maryland Casualty Company of Baltimore, Maryland, which the justice of the court at once
approved and transmitted to the clerk of said Second judicial district court.
a.m. of the latter day, without notice to petitioner, respondent caused to be filed in said justice
court a second appeal bond executed by the Maryland Casualty Company of Baltimore,
Maryland, which the justice of the court at once approved and transmitted to the clerk of said
Second judicial district court. The justice also transmitted to the said clerk a certified copy of
his docket, and other papers filed in the case. Petitioner, through his attorney, was present at
4:00 p.m. on May 12, 1937, in the courtroom of the justice court. Thereafter petitioner duly
moved said Second judicial district court for an order dismissing the appeal on the ground,
among others, that the court was without jurisdiction thereof by reason of the failure of the
said sureties to justify. An affidavit of the justice of the peace and of the attorney for
respondent were filed in opposition to the motion to dismiss, and presented to the court on the
hearing thereof. In the affidavit of the former it is stated that the affiant examined the bond,
duly approved the same, certified it to the district court without justification as provided by
law in such cases, after taking judicial notice, acquired from other causes in said justice court
that said company was duly authorized to transact business in Nevada, and was in all respects
financially responsible to execute a good and sufficient bond in the cause; that affiant
certified said bond to the district court prior to the time set for justification of said Maryland
Casualty Company as surety thereon for all of the foregoing reasons, and because a hearing
on the sufficiency of said surety was unnecessary and would have constituted a waste of time,
of affiant, as justice of the justice court of said township.
In another affidavit this affiant averred that the surety company made no attempt to justify
in any manner. It is stated in the affidavit of the attorney that the justice approved said bond at
about 10 a.m. on the 12th day of May 1937, notwithstanding a hearing on the justification of
said Maryland Casualty Company as a surety on said bond has been therefore regularly set
for 4:00 p.m. of that day; and that at the time of the approval affiant suggested and
requested the justice to forego approval until after said company justified at 4 o'clock
p.m.
on said bond has been therefore regularly set for 4:00 p.m. of that day; and that at the time of
the approval affiant suggested and requested the justice to forego approval until after said
company justified at 4 o'clock p.m. of that day, whereupon said justice said, in substance, that
he knew of his own knowledge and would take judicial notice of the sufficiency of said
company, and that any hearing would therefore be useless and a waste of time.
The motion to dismiss was denied by the district court on the 8th day of February 1938,
and on the 21st day of that month said court made an order fixing the 27th day of April 1938,
at 10 o'clock a.m., for the trial of said cause de novo.
1. Petitioner has invoked the writ to review the action of the district court in making the
above orders. He contends that the court acted without jurisdiction in those respects because
there was not sufficient justification by the sureties or surety after an exception to their
sufficiency had been taken. That such justification is essential to give a district court
jurisdiction on appeal from a justice court was held in Yowell v. District Court, 39 Nev. 423,
159 P. 632. The statute construed in that case, section 5792 Revised Laws, reads: * * * The
adverse party may except to the sufficiency of the sureties within five days after the filing of
the undertaking, and unless they or other sureties justify before the justice within five days
thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the
appeal must be regarded as if no such undertaking had been given.
The court said (page 633): The district court in the matter at bar was limited in its
jurisdiction to a dismissal of the appeal upon motion of petitioner. Its power to act otherwise
in the proceedings had been terminated by the failure on the part of the appellant to comply
with the statutory provisions in the justice court. [Failure to justify.] 2, 3.
2, 3. The section involved in the case before us, 9339 N. C. L., is the same as said section
5792, except that the exception to the sureties must be filed within five days after the written
notice of the filing of the undertaking. This court has held that where, instead of an appeal
bond with individual sureties, a surety bond is given on an appeal as permitted by section
7627 N. C. L., failure of the surety company to justify, when properly challenged, is a
jurisdictional defect and fatal to the appeal. Hough v. Roberts Mining & Milling Co., 58 Nev.
245, 75 P.(2d) 731. We pointed out in the case supra, that section 7630 N. C. L. 1929
provides a method of justification by a surety company. In that case no notice was given to
defendant that the surety company undertaking was going to be filed and the surety company
did not justify as provided in said section 7630, or at all. In the case at bar there was no
justification as provided by that section, or at all, even if it should be assumed that the taking
of judicial notice by the justice of the sufficiency of the surety was equivalent to the kind of
proof required therein, for petitioner was deprived of the right given by the section to produce
competent evidence to show that such surety company was not worth the sum of the
undertaking over and above all of its just debts and liabilities, exclusive of property exempt
from execution.
4. If it be conceded that the method provided by said section 7630 N. C. L. for justification
by a surety company is not exclusive, still the adverse party would be entitled to disprove
whatever other showing of sufficiency that might be made. This right is an essential part of a
legal justification when an exception has been duly taken, as it was in this case.
The justice had fixed the hour of 4:00 p.m. for justification. The undertaking had been
filed in time and the adverse party was on hand at that hour. However, as stated, the justice
had previously approved the undertaking and certified it to the district court, notwithstanding
respondent's attorney at the time of approval suggested and requested the justice to forego
approval of the undertaking until after said Maryland Casualty Company justified at 4:00
p.m.
suggested and requested the justice to forego approval of the undertaking until after said
Maryland Casualty Company justified at 4:00 p.m.
5. Do these facts take the case out of the rule applied in Yowell v. District Court, and
Hough v. Roberts Mining and Milling Co., supra? We think they do and that the district court
acted within its jurisdiction in making the foregoing orders.
In each of these cases the failure to justify was due to the fault of the appellant. In Yowell
v. District Court the appeal, due to the negligence of appellants, would have been held
ineffectual if the sufficiency of the sureties had been properly challenged. In Hough v.
Roberts Mining & Milling Co., the sureties were duly excepted to and the failure to justify
rendered the appeal ineffectual. In the case at bar we do not think there was any negligence on
the part of the party appealing. As appears from the affidavit of his attorney, he was ready to
proceed to a justification at the appointed hour of 4:00 p.m., but was deprived of the
opportunity by the action of the justice in spite of his protest. He might have avoided this by
waiting until 4 p.m. to file his undertaking and offer his proof of sufficiency of the surety
company, but his failure to anticipate summary action by the justice may not, we think, be
chargeable to him as negligence.
6. Petitioner seeks to impute negligence to respondent in that he did not resort to
mandamus to compel the justice to entertain an offer to justify at 4:00 p.m. This remedy was
not open to respondent. When the justice certified and transmitted the undertaking to the
district court his jurisdiction was at an end. The law does not require the doing of vain things.
If respondent had presented the undertaking to the justice for filing within time and the latter
had neglected to file it or refuse to file it, or by his absence from his office or in any other
way prevented its filing, it could not have been justly said that the right of appeal was lost.
7, 8. It would seem that when a party has taken all steps necessary to perfect and make
effective his appeal, that he should not be chargeable with any fault or omission on the
part of the justice which the statute requires such justice to do.
steps necessary to perfect and make effective his appeal, that he should not be chargeable
with any fault or omission on the part of the justice which the statute requires such justice to
do. Hillyer's Justices' Code, annotated, section 1315, page 732. Certainly such view is in the
furtherance of justice, for appeals as a rule are favored and not to be defeated by strained
construction.
This rule was declared in an early case by the supreme court of Kansas. Struber v. Rohlfs,
36 Kan. 202, 12 P. 830. In that state statutes concerning appeals from justices' courts then
provided in part for the filing of an undertaking to the adverse party, with at least one good
and sufficient surety to be approved by the justice, and that an appeal shall be completed upon
the filing and approval of the undertaking. In that case it was held that if a party appealing
does all the law requires of him to entitle himself to an appeal, the justice cannot deprive him
of this right by an omission to act, either through negligence or design. The court said (page
831): If Struber presented his bond, with sufficient sureties at the office of the justice on
August 7, 1884 [the last day for filing it], during business hours, or if the justice accepted and
verbally approved the undertaking at any time on August 7th, the appeal would be in time,
although the filing and written approval by the justice were not entered until the next day, as a
justice cannot deprive a party of his right to appeal by an omission to act, either through
negligence or design.
The foregoing case has been cited with approval several times by the supreme court of
Oklahoma. Looper v. Houston, 174 Okl. 148, 49 P. (2d) 1062; St Joseph Mining Co. v.
Pettitt, 90 Okl. 242, 216 P. 657; Chicago, R. I. & P. Ry. Co. v. Elsing, 52 Okl. 329, 152 P.
1091; Chicago, R. I. & P. Ry. Co. v. Moore, 34 Okl. 199, 124 P. 989.
We hold that the justice in this case, having by his premature action deprived the
respondent of an opportunity to justify the surety company at the hour appointed by the
justice for such justification and within the time required by law, there was no
jurisdictional defect in the proceedings.
appointed by the justice for such justification and within the time required by law, there was
no jurisdictional defect in the proceedings.
Under such circumstances the right of petitioner to question the sufficiency of the surety
must give way before the greater right of respondent to have his day in court. There is no
merit in the other contention of petitioner.
The orders of the district court are affirmed and the writ dismissed.
____________
58 Nev. 361, 361 (1938) Home Lumber & Coal Co. v. Hartford Mining Co.
HOME LUMBER & COAL COMPANY, a Corporation, Respondent, v. HARTFORD
MINING COMPANY, a Corporation, GEORGE DRYSDALE, HOWARD W.
SQUIRES, H. W. SQUIRES, Jr., Et Al., Appellants.
No. 3218
August 5, 1938. 81 P. (2d) 1063.
Where defendant filed its answer eight days after its demurrer and motion to strike, and record did not
show a ruling on such demurrer and motion, presumption existed that both were waived.
Appellant waived assignments of error concerning its demurrer and motion to strike the complaint by
failing to argue assignments in its briefs.
3. Evidence.
To render books of account admissible in evidence, it must be shown that the books were kept in the
regular course of business which was of a character in which it was proper or customary to keep books, that
they were made at the time or within reasonable proximity to the time of the respective transactions, and
that the persons making them had personal knowledge of the transactions or obtained knowledge from a
report regularly made to them by some other person employed in the business whose duty it was to make
the same in the regular course of business.
4. Evidence.
In suit to foreclose mechanics' liens, plaintiff company's manager's testimony, which showed that he did
not check items listed on ledger sheets except regarding the price, was an insufficient foundation for
admission of ledger sheets in evidence where bookkeeper who made entries was not
called although he was available.
insufficient foundation for admission of ledger sheets in evidence where bookkeeper who made entries was
not called although he was available.
5. Mechanics' Liens.
A seller was not entitled to a lien for supplies sold over a period of two years on part of supplies which
were sold before a break in the transactions, where statutory lien claim was not filed within ninety days
after such break. Comp. Laws, sec. 3739.
6. Evidence.
In action to foreclose mechanics' lien, testimony, regarding seller's ledger sheets, which did not reveal
that witness was the bookkeeper, that bookkeeper could not be produced or that person making entries had
personal knowledge of the transaction or had obtained such knowledge from a regular report was
insufficient as a foundation for introducing seller's ledger sheets in evidence.
Where mechanics' liens were filed jointly against corporate and individual buyers of supplies as owners
of property, and it was not averred that corporation leased property or that property was operated by a
lessee, the seller was not entitled to a lien on corporation's property on account of articles sold a lessee.
Comp. Laws, sec. 3743.
One seeking to impose a lien on a lessor for labor and material furnished a lessee as permitted by statute
in certain circumstances must aver facts putting lessor on notice. Comp. Laws, sec. 3743.
9. Pleading.
Where a party relies for recovery upon a statute creating a liability where none existed before, he must
state facts showing his right to recover under such statute.
Appeal from First Judicial District Court, Storey County; Clark J. Guild, Judge.
Suit by the Home Lumber & Coal Company against the Hartford Mining Company and
others to foreclose two mechanics' liens, wherein only the named defendant appeared. From a
judgment against named defendant, it appeals. Reversed and remanded for further
proceedings in accordance with opinion.
G. A. Ballard, for Appellants:
The court erred in overruling defendant's objection to the introduction of the ledger sheets
of the respective corporation creditors upon the testimony alone of the manager, who did
not keep the books.
corporation creditors upon the testimony alone of the manager, who did not keep the books. It
was admitted that the maker of the book entries continued in employment and was available
as a witness. 22 C. J., secs. 1036, 1072, pp. 865, 883.
The court erred in overruling defendant's objection to the allowance as a lien, items of
tools, machinery, etc., shown on the ledger sheets of the account of the Commercial
Hardware Company, the same not constituting an improvement.
In order that the property of an owner may be held subject to a lien under sec. 3743 N. C.
L., he must have knowledge of the improvements being made. 40 C. J. 127; Cutter v. Strigal
(Wash.) 30 P. 326; Allen v. Roe (Ore.), 23 P. 901. Knowledge of the owner being a
prerequisite to a claim of lien under this section, such knowledge must be alleged and proved.
Tonopah Lumber Co. v. Nevada Amusement Co., 30 Nev. 445, 97 P. 636; Lamb v. Lucky
Boy Mining Co., 37 Nev. 9, 138 P. 902; 49 C. J. sec. 167, p. 151.
Morley Griswold and George L. Vargas, for Respondent:
Appellants' specification of error in the overruling of their demurrer to and motion to strike
respondent's complaint, being unsupported by any argument in their briefs, must be
considered as waived. Robison v. Mathis, 49 Nev. 35, 234 P. 690.
The law of this state is that a lessor's interest is subject to mechanic's liens where the lessee
has contracted for labor and materials and the owner, knowing of such work or the
contemplation of such work, fails to protect himself and his estate by filing a notice of
nonresponsibility as provided by statute. Sec. 3743 N. C. L.; Gould v. Wise, 18 Nev. 253, 3
P. 30; Lamb v. Lucky Boy M. Co., 37 Nev. 9, 138 P. 902; Didier v. Webster Mines Corp., 49
Nev. 5, 234 P. 520.
It is submitted, under the authority of the case of Montgomery & Mullen Lumber Co. v.
Ocean Park Scenic Ry. Co. {Cal.),
Montgomery & Mullen Lumber Co. v. Ocean Park Scenic Ry. Co. (Cal.), 161 P. 1171, and in
view of the testimony adduced in the case at bar, the original ledger sheets were properly
admitted.
OPINION
Plaintiff, respondent here, brought suit to foreclose two mechanics' liens, one assigned to it
by Commercial Hardware Company. None of the defendants appeared except Hartford
Mining Company, and judgment was rendered against it alone upon both causes of action,
from which, and the order denying defendant's motion for a new trial, an appeal has been
taken.
The defendant denied the allegations, in the two causes of action, of sale and delivery of
merchandise for which lien and judgment were sought.
Defendant assigned four errors to rulings of the trial court. The first error assigned is that
the court erred in overruling the demurrer to the complaint and the motion to strike portions
of the complaint.
1, 2. It appears from the record in this case that the demurrer and the motion to strike were
filed on March 26, 1937, and that on April 3, 1937, eight days thereafter, the defendant filed
its answer. It nowhere appears from the record that the court ever ruled upon the demurrer
and the motion to strike, hence it must be conclusively presumed that both the demurrer and
motion to strike were waived. Bliss v. Sneath, 103 Cal. 43, 36 P.1029; 21 Cal. Jur. p. 129, n.
3; 49 C. J. p. 447, sec. 554.
Furthermore, defendant does not argue this assignment in his briefs, hence it must be
deemed waived for this additional reason. Robison v. Mathis, 49 Nev. 35, 234 P. 690.
We will next consider the contention that the evidence is unsufficient to support the
findings and judgment.
The record shows that as to the items making up the first cause of action, it is composed of
two accounts, one for supplies sold by plaintiff directly to Hartford Mining Company between
May 26, 1934, and October 8, 1935, amounting to $210.62, and the other for supplies sold to
Mr. Squires, from April 7, 1936, to August 10, 1936, amounting to $833.68.
3, 4. It is insisted that the court erred in overruling the objection to the introduction of the
ledger sheets upon which were kept the various accounts upon which recovery is sought in
support of the respective causes of action. The ledger sheets were objected to upon the ground
that no foundation was laid as a basis for admitting them in evidence as a book of original
entry.
The correct rule applicable to the question before us is stated in the case of Chan Kiu Sing
v. Gordon, 171 Cal. 28, 151 P. 657, in which Wigmore and other authors are cited to support
the text as follows:
In order to lay the foundation for the admission of such evidence, it must be shown that
the books in question are books of account kept in the regular course of the business; that the
business is of a character in which it is proper or customary to keep such books; that the
entries were either original entries or the first permanent entries of the transactions; that they
were made at the time, or within reasonable proximity to the time of the respective
transactions; and that the persons making them had personal knowledge of the transactions,
or obtained such knowledge from a report regularly made to him by some other person
employed in the business whose duty it was to make the same in the regular course of
business.
We are of the opinion that the proper foundation was not laid for the admission of the
ledger sheets. It was sought to lay the foundation for the introduction of the ledger sheets by
offering the testimony of Mr.
ledger sheets by offering the testimony of Mr. Peterson, the manager of plaintiff company,
without calling the bookkeeper who made the entries on the sheets and who was available as
a witness.
Mr. Peterson also testified that it was not the custom to itemize the merchandise on the
ledger sheets; that he removed the ledger sheets from the ledger himself.
Mr. Peterson also gave the following testimony:
Q. Mr. Peterson, you say you personally check every sales slip that goes out of your
office? A. Yes.
Q. Do you check that with the load? A. No, I check the prices to see they are correct and I
therefore look at every ticket that leaves that office.
From this testimony of Mr. Peterson it appears that he did not check the items of
merchandise listed, or know anything more about what appeared on the slip than that the
price was correct.
Thus it appears there is no basis established upon which the claim of plaintiff can be
sustained as to these items.
5. The court held that the plaintiff is not entitled to a lien for the supplies alleged to have
been sold directly to defendant company, amounting to $210.62. In this the court was right,
for at least one reason, namely, no lien claim was filed within the ninety days' time fixed by
statute (sec. 3739 N. C. L.), after the last delivery to the company on October 8, 1935. There
was a break in the transactions at this point, as testified to by Mr. Peterson, witness for
plaintiff.
We are now to consider the claim assigned by the Commercial Hardware Company. Of
this claim there is an item of $288.89 for merchandise sold to the Hartford Mining Company,
contracted between October 14, 1933, and November 1, 1935, and an item of $1,030.88 for
merchandise sold to Squires between April 3, 1936, and August 29, 1936. As to the first item,
the situation is identical to that of the first item of $210.62 in the first cause of action, namely,
that no lien can be maintained as to it because no lien statement was filed in apt time, and
the trial court so held.
maintained as to it because no lien statement was filed in apt time, and the trial court so held.
6. It is also contended that the court erred in overruling defendant's objection to the ledger
sheets offered in evidence in support of this cause of action, upon the same theory as that
urged to the ledger sheets admitted to support the first cause of action. We think the
contention good. Mr. Horgan, who testified as to the ledger sheets, did not testify that he was
the bookkeeper, nor was there any evidence given showing that the bookkeeper could not be
produced. The evidence falls short of the requirements otherwise. For instance, there is no
showing that the person who made the ledger entries had personal knowledge of the
transaction, or obtained such knowledge in compliance with the rule.
It is also urged that there is no showing that the items embraced in the claim of
Commercial Hardware Company for merchandise sold to Squires are lienable. We are not
entirely satisfied, under the evidence, as to this contention. The evidence is not as persuasive
as it might be.
7. It is also contended that the court erred in decreeing a lien upon the property of the
defendant company in behalf of the plaintiff, on account of the articles sold to the lessee. In
this contention defendant is clearly right. The liens filed are against all of the defendants
jointly as owners of the property in question. The complaint avers sales to all of the
defendants jointly, as to both causes of action. Nowhere in the complaint is it averred that a
lease was ever given by defendant company to anyone or that the property was operated by
anyone as a lessee. There is no allegation in the complaint, or intimation, that the company
was sought to be held liable because of sale of materials and supplies except as a joint
purchaser.
8, 9. It is true that pursuant to section 9 of our lien act (sec. 3743 N. C. L.) a lessor is, in
certain circumstances, liable for labor and material furnished a lessee, but when recovery is
sought in such a situation the complaint should aver facts putting the defendant lessor on
notice.
but when recovery is sought in such a situation the complaint should aver facts putting the
defendant lessor on notice. The well-known rule applicable to the situation presented is stated
in 49 C. J., p. 151, section 167, to which a long list of authorities is cited in note 43, as
follows:
Where a party relies for recovery upon a statute creating a liability where none existed
before, he must state facts showing his right to recover under that statute.
It appears to be the practice in this jurisdiction to conform to this rule. Lamb v. Goldfield
Lucky Boy M. Co., 37 Nev. 9, 138 P. 902; Tonopah Lumber Co. v. Nevada Amusement Co.,
30 Nev. 445, 97 P. 636.
For the reasons given, the judgment and decree is in all things reversed and the cause
remanded for further proceedings in accordance herewith, with leave to plaintiff to apply to
the trial court in ten days for an order granting permission to amend its complaint.
November 5, 1938. 93 P. (2d) 1049.
In suit to foreclose mechanic's lien, testimony of president of defendant corporation that
he had received statement for materials furnished corporation which had not been
controverted or denied and that materials were actually furnished, and that so far as he
knew, statements were full, true, and correct, did not sufficiently establish correctness of
item for which personal judgment was given against corporation without regard to
question of error in admission of other evidence to prove claims.
2. Witnesses.
In mechanic's lien foreclosure suit against corporation, admission, over objection, of
testimony of president of corporation on examination by plaintiff by whom president was
called as a witness, as to receipt of claims for materials furnished, was error where no
basis had been laid therefor.
Appeal from First Judicial District Court, Storey County; Clark J. Guild, Judge.
On petition for rehearing. Petition denied.
G. A. Ballard, for Appellant.
Morley Griswold and George L. Vargas, for Respondent.
OPINION
1. Respondent has filed a petition for a rehearing as to the item of $210.62, of plaintiff's
first cause of action, and the item of $288.89, of the second cause of action.
In support of the petition for rehearing it is said:
This Honorable Court having declared in its opinion that the demurrer and motion to
strike, filed on behalf of appellant, Hartford Mining Company, were waived, the sole
remaining question upon which this petition for rehearing depends is whether or not there is
competent evidence of the liability of defendant and appellant, Hartford Mining Company,
for the items Two Hundred Ten Dollars and sixty-two cents ($210.62) and Two Hundred
Eighty-eight Dollars and eighty-nine cents ($288.89). These obligations are expressly
admitted in the testimony of Mr. George Drysdale, president and treasurer of the appellant,
Hartford Mining Company. See pages 66 and 67, volume I, transcript on appeal, wherein the
witness George Drysdale testified, as president and treasurer of the appellant, Hartford
Mining Company, in substance: That the Hartford Mining Company had received statements
of account from the Home Lumber and Coal Company and from the Commercial Hardware
Company; that those statements were full, true and correct statements of materials furnished
to the Hartford Mining Company. This testimony given by the president and treasurer of the
appellant, Hartford Mining Company, sufficiently establishes the correctness of the items of
Two Hundred Ten Dollars and sixty-two cents {$210.62) and Two Hundred Eighty-eight
Dollars and eighty-nine cents {$2SS.S9) for which personal judgment was given against
the appellant, Hartford Mining Company, without regard to the question of any error on
the part of the trial court in admitting in evidence the ledger sheets of the respondent and
of its assignor, the Commercial Hardware Company."
and sixty-two cents ($210.62) and Two Hundred Eighty-eight Dollars and eighty-nine cents
($288.89) for which personal judgment was given against the appellant, Hartford Mining
Company, without regard to the question of any error on the part of the trial court in
admitting in evidence the ledger sheets of the respondent and of its assignor, the Commercial
Hardware Company.
The foregoing statement seems conclusive at a mere glance, but we do not think the
testimony of Drysdale supports the contention made. As to the statement which he received
from the Home Lumber & Coal Company, the record reads:
Q. I will ask you if you have ever received from the Home Lumber and Coal Company
any statements for any materials furnished the Hartford Mining Company? A. Yes, I have.
Q. Have you ever controverted or denied any of those statements? A. No, as far as the
Hartford Mining Company.
Q. They represent materials actually furnished? A. They do.
He further testified:
Q. Did you ever have any occasion to deny or controvert those statements? A. No.
Q. So far as you knew and believed, those statements were all full, true and correct
statements of material furnished by the Commercial Hardware Company to the Hartford
Mining Company? A. They are.
It must be kept in mind that the witness was testifying as to statement which he received
months before the trial, in April 1937, and probably some months before the suit was
brought, and not to any statement introduced in evidence. Furthermore, so far it appears from
the record, no statement of either account was introduced in evidence. This being true, it can
hardly be said that the contention is well founded.
2. Furthermore, the testimony of Drysdale was improperly admitted over objection, as no
basis had been laid therefor, he having been called as a witness for plaintiff.
In view of the fact that a retrial will probably be had in this case, an opportunity will be
afforded plaintiff to supply the necessary evidence.
Petition denied.
____________
58 Nev. 371, 371 (1938) Foy v. Smith's Estate
JOHN BERNARD FOY, as Special Administrator of the Estate of MARY E. SMITH,
Deceased, Appellant, v. ESTATE OF GEORGE EDMUND SMITH Et. Al.,
Respondents.
No. 3225
August 5, 1938. 81 P. (2d) 1065.
1. Evidence.
In wife's action to set aside divorce decree, which she had obtained, on ground that she was entitled to
greater amount of alimony, where husband was domiciled in New York but there was no proof of New
York law as to amount of alimony to which wife was entitled, court would not presume that the New York
law was different from that of Nevada.
2. Divorce.
In wife's action to set aside divorce decree, which she had obtained against husband domiciled in New
York, on ground that she was entitled to greater amount of alimony, where statute provided that where
marriage is dissolved by husband's imprisonment or his committing adultery wife should be entitled to
same proportion of husband's property as if he were dead, but in all other cases divorced wife should be
entitled only to support, and evidence did not show that husband was ever sentenced to prison or that
divorce had been granted because of husband's commission of adultery, it was conclusively presumed that
wife's only right to alimony was that of support. Comp. Laws, sec. 9465.
3. Divorce.
The right to support which is given by statute to a wife who has obtained a divorce is purely personal and
terminates upon the death of the wife. Comp. Laws, secs. 8561, 9465.
4. Abatement and Revival.
In order for an action to come within the statute providing that an action shall not abate by the death of a
party if the cause of action survive or continue, the action must be one which by its very
nature survives.
cause of action survive or continue, the action must be one which by its very nature survives. Comp. Laws,
sec. 8561.
5. Abatement and Revival.
Where wife, who had obtained divorce, sought to have decree set aside, and wife died pending her
appeal, suit thereupon abated and required dismissal of appeal, since wife's alleged cause of action did not
survive. Comp. Laws, sec. 8561.
Appeal from Second Judicial District Court, Washoe County; Thos. F. Moran, Judge.
Action by Mary E. Smith against the estate of George Edmund Smith and others to set
aside a decree of divorce which plaintiff had obtained. From a decree adverse to plaintiff,
plaintiff appealed, and on the death of plaintiff, John Bernard Foy, as special administrator of
the deceased plaintiff's estate, was substituted as appellant. Appeal dismissed.
Edward F. Lunsford and Myron R. Adams, for Respondents:
We contend that inasmuch as this is an action primarily for the wife's support, which has
never been reduced to judgment during her life time, the same abates upon her death and is
not such a cause of action which would revert or continue for the benefit of her estate.
Romaine v. Chauncey (N. Y.), 29 N. E. 826; Faversham v. Faversham, 146 N. Y. S. 569.
There is no statute that we can find in this state which provides for the survival of strictly
personal actions of this kind, and hence the common law maxim, actio personalis moritur
cum persona, is applicable to this action. Zabriskie v. Smith, 13 N. Y. 322.
This action for the wife's support is not assignable, and in the absence of statute, only such
actions as are assignable, as a general rule, survive at common law. 1 C. J. S. sec. 132, p. 179.
John Bernard Foy, for Appellant:
Where property rights are involved, the death of one of the parties pending the appeal
does not end the case, and the substitution of the husband's or the wife's legal
representative is the proper procedure to follow, so that the question of property rights
may be determined.
of the parties pending the appeal does not end the case, and the substitution of the husband's
or the wife's legal representative is the proper procedure to follow, so that the question of
property rights may be determined. 9 R. C. L., p. 469; Chatterton v. Chatterton, 231 Ill. 449,
83 N. E. 161; Wood v. Wood, 136 Iowa 128, 113 N. W. 492; Thomas v. Thomas, 57 Md.
504; Downer v. Howard, 44 Wis. 82; Nickerson v. Nickerson, 34 Ore. 1, 48 P. 423, 54 P.
277; Upperman v. Upperman, 119 Pa. Super. Ct. 341, 181 Alt. 252; Price v. Price, 114 Fla.
233, 153 So. 904; Porter v. Lerch, 129 Ohio St. 47, 193 N. E. 766; Sharon v. Sharon, 75 Cal.
1, 16 P. 345; 30 A. L. R. pp. 1469 to 1473.
The contract for which the plaintiff now seeks damages for fraud and deceit was entered
into in the State of New York, and the plaintiff's remedies were determinable by the laws of
the State of New York. Therefore, the plaintiff's estate has the same rights the plaintiff had
before she died, and has the right to recover for the damages sustained by her by reason of the
fraud and deceit practiced upon her in connection with the agreement.
OPINION
This case is before the court on a motion to dismiss the appeal.
Mary E. Smith (to whom we will refer as plaintiff) instituted this suit to set aside a decree
of divorce which she obtained June 16, 1930, against her husband George Edmund Smith (to
whom we will refer hereinafter as defendant), a resident of New York, in the Second judicial
district court, in and for Washoe County, Nevada. She asked to have the decree set aside upon
the grounds of fraud, duress and coercion alleged to have been practiced upon her by the said
defendant. In her complaint she also attacked an agreement entered into between the plaintiff
and defendant on February 10, 1930, whereby she accepted $600 monthly in lieu of her
claim for support, upon the ground that he misrepresented his property holdings at the
time they entered into the agreement to have been $1S3,200, whereas it was $2,000,000,
and seeks damages in the sum of $347,600, representing what she claimed to be the
difference between the amount she agreed to accept under the agreement and the
amount to which she would be entitled to, or the sum of $5,000 per month for the rest of
her life.
between the plaintiff and defendant on February 10, 1930, whereby she accepted $600
monthly in lieu of her claim for support, upon the ground that he misrepresented his property
holdings at the time they entered into the agreement to have been $183,200, whereas it was
$2,000,000, and seeks damages in the sum of $347,600, representing what she claimed to be
the difference between the amount she agreed to accept under the agreement and the amount
to which she would be entitled to, or the sum of $5,000 per month for the rest of her life. The
prayer of her complaint is that the said decree of divorce be set aside; that she have judgment
for $347,000; and that defendants be required to set aside a sufficient fund to pay plaintiff
$5,000 per month for the balance of her life.
The plaintiff appealed from an order sustaining a demurrer to the amended complaint, and
a judgment dismissing the suit.
After the appeal was perfected, the plaintiff died. Subsequently a special administrator of
her estate was appointed. Thereafter, on motion of the special administrator, an order was
made by this court that he be substituted as appellant.
The respondents base their motion to dismiss upon two groundsthe first being that the
suit abated upon the death of the plaintiff, since, as contended, the alleged action or cause of
action is of such a nature that the same does not survive.
It is the theory of respondents that had a judgment been entered in the lower court in favor
of the plaintiff prior to her death, such judgment would have become the property of her
estate, in which case her legal representative could be substituted on an appeal by the adverse
party; but that the right of support, being personal to the wife and not having been reduced to
a judgment during her lifetime, it must necessarily terminate at her death.
The plaintiff and George Edmund Smith were married in Buffalo, New York, in 1905,
where they continued to reside until the plaintiff, some time in 1930, came to Nevada and
established her residence and instituted her suit for divorce, resulting in a decree in her
favor.
in Buffalo, New York, in 1905, where they continued to reside until the plaintiff, some time
in 1930, came to Nevada and established her residence and instituted her suit for divorce,
resulting in a decree in her favor. So far as appears, there was no community property, nor
other property, in this state, belonging to either of the parties to the divorce suit, and whatever
property defendant owned was his sole property, so far as we are advised.
George Edmund Smith died in March 1936, after which this suit was instituted.
It does not appear from the record that any provision was made in the judgment and decree
in said divorce suit for the support of the plaintiff, the same having been arranged solely by
said agreement.
1. As we interpret the complaint in this suit, it is based entirely upon the theory of
plaintiff's right to support in a monthly sum to be arrived at upon the basis of an assumed
income from an estate valued at $2,000,000. It is not clear whether the plaintiff relies upon
the law of New York or the law of Nevada as a basis for arriving at the right conclusion. Our
attention is directed to a certain provision of the statute law of New York, and our attention is
also directed to the law of this state as to the right of an injured wife, obtaining a divorce, for
support. There has been no proof herein of the law of New York, and we will not presume
that it is different from that of Nevada.
Section 9465 N. C. L., which is as it was when the divorce in question was granted, so for
as here material, reads: When the marriage shall be dissolved by the husband being
sentenced to imprisonment, and when a divorce shall be ordered for the cause of adultery
committed by the husband, the wife shall be entitled to the same proportion of his lands and
property as if he were dead; but in other cases the court may set apart such portion for her
support, and the support of their children, as shall be deemed just and equitable.
2. Nothing has been alleged or said to indicate that defendant was ever sentenced to prison
or that the divorce was granted plaintiff for the cause of adultery committed by the defendant,
hence we must conclusively presume that under the law applicable to the case at the time the
divorce was granted, the plaintiff's right is solely that of support, as appears from Lake v.
Bender, 18 Nev. 361, at page 410, 4 P. 711, 7 P. 74.
The question for determination is whether this action survives the death of the plaintiff.
The well known common law rule, actio personalis moritur cum persona, is invoked by the
respondents, which presents two questions for our determination: first, was the claim asserted
by plaintiff personal in its nature; and, second, if it was personal did it survive the death of
the plaintiff?
3. As to the first question, we are clearly of the opinion that the right to support was purely
personal. From the very nature of the right it could be nothing more. It was a right which she
alone could enjoy. Its duration depended upon her survival. There can be no support for a
nonexisting person. This brings us to the question: Did the right of action survive, pursuant to
section 8561 N. C. L., which provides: An action shall not abate by the death * * * of a
party * * * if the cause of action survive or continue * * *?
4. What must be the character of the action to bring it within the terms of this section? It
must be one which by its very nature survives. If it be true that the defendant misrepresented
his wealth to the plaintiff, as contended, it would in no way affect this case. If he had been
worth a billon dollars, all that the plaintiff would have been entitled to would have been
support during her life. She was not entitled to an allowance on the theory that she could have
saved $347,600 or any other amount. All that she was entitled to, we repeat, was support. She
got that during her life. When she died, her claim upon the defendant and his estate died
also.
died, her claim upon the defendant and his estate died also.
Appellant directs our attention to the views expressed by this court in Lake v. Bender,
supra, wherein the court, in considering the question of the extent of an allowance for
support, dwelt upon the status of the parties as a standard to be considered. The views there
expressed meet with our approval, but there the court was dealing with the question of
support during the lifetime of the wife, and not with the idea of enabling her to accumulate
great wealth from such allowance.
In Faversham v. Faversham, 161 App. Div. 521, 146 N. Y. S. 569, it is said (page 571):
The right to receive alimony as it is understood in this state, is clearly a personal right,
arising out of the domestic relations, and is not a property right.
In that case it is also said: But even if it were allowable to grant respondent's application
for substitution, it would avail him nothing, because the original plaintiff's claim for alimony
died with her, and no right to enforce the payment, even of alimony which had accrued before
her death, survived her.
Again the court said: A decree for alimony therefore does not create, but rather defines
and makes specific, the husband's original obligation, which continues notwithstanding the
divorce. It does not therefore create a debt in the ordinary sense of the word. It measures and
makes specific and certain his obligation, but it does not change the character of that
obligation, which is purely personal, and solely for the support and maintenance of the wife.
In its very nature, therefore, it is unassignable, and upon the death of the wife, when the
obligation of support and maintenance ceases, the obligation of payment likewise ceases, and
it makes no difference whether alimony has accrued at the time of death or not, for, the right
to receive alimony being unassignable, it is unsurvivable.
5. As to the question of the right of the plaintiff to have set aside the decree of divorce, it
is clearly not debatable.
have set aside the decree of divorce, it is clearly not debatable. Death terminates all such
questions. 1 C. J. 208; 1 R. C. L., p. 39, sec. 35; note to Morris v. Propst, 104 A. L. R. 654;
Grotsch v. Hassey, 133 Misc. 373, 231 N. Y. S. 469.
The appeal should be dismissed.
It is so ordered.
____________
58 Nev. 378, 378 (1938) Crystal Bay Corp. v. Schmitt
CRYSTAL BAY CORPORATION, Appellant, v. LEO F. SCHMITT, As Receiver of United
Nevada Bank, a Corporation, Respondent.
No. 3222
August 5, 1938. 81 P. (2d) 1070.
The word otherwise, as used in statute providing that no bank official shall give preference to any
depositor or creditor by pledging the assets of the bank as collateral security, or otherwise, refers to the
giving of preference to any depositor or creditor, and not to the pledging of the bank's assets, and
preferences prohibited by the statute are not confined to pledges. Comp. Laws, sec. 684, as amended by
Stats. 1931, c. 35.
The fact that allowance of mortgagor's claimed set-off of bank depositor's saving account, which
depositor had assigned to mortgagor, against mortgage note in hands of bank, would not call for any
affirmative act on the part of the debtor, would not mean that there would not be the giving of a
preference, forbidden by statute, should the set-off be allowed. Comp. Laws, secs. 8545, 8602, 8605; sec.
684, as amended by Stats. 1931, c. 35; sec. 8603, as amended by Stats. 1931, c. 148.
The rule that unless prohibited by statute, a preference by a bank, even in insolvency, is valid, applies
only where the payments are made in the ordinary course of business.
Insolvent bank properly declined to permit a mortgagor to set-off bank depositor's saving account, which
had been assigned to mortgagor, against mortgage note in hands of bank, where, before assignment of
account, bank's insolvency was known to the general public, and it had ceased accepting deposits,
paying checks, or doing a regular banking business.
deposits, paying checks, or doing a regular banking business. Comp. Laws, secs. 8545, 8602, 8605; sec.
684, as amended by Stats. 1931, c. 35; sec. 8603, as amended by Stats. 1931, c. 148.
Action by the Crystal Bay Corporation against Leo F. Schmitt, as receiver of the United
Nevada Bank, to have certain mortgage notes adjudged to have been fully paid, satisfied and
discharged, to compel defendant to surrender and deliver the notes to plaintiff, and to compel
defendant to discharge mortgage. From a judgment in favor of defendant, and from an order
denying plaintiff's motion for new trial, the plaintiff appeals. Judgment and order affirmed.
Springmeyer & Thompson, for Appellant:
The set-off demanded on November 18, 1932, was not invalid as a preference within sec.
684 N. C. L. for the following reasons:
FirstA preference is an affirmative act by the debtor, the payment by the debtor of
money or the transfer, conveyance or assignment of property, security, etc., to a favored
creditor in preference to unfavored creditors. Hence, the inactive, passive condition of the
bank while it is being acted upon, so to speak, by way of a set-off or by way of an attachment,
execution, or any lien is not a preference. Thus, the setting off of the own deposit of a person
who owes a note to a bank against that note is not a preference.
SecondEven if a set-off were a preference, it would not be invalid within the purview or
meaning of sec. 684 N. C. L., as amended by chap. 35, Stats. 1931, p. 41, because that merely
prohibits preferences by pledging the assets of the bank as collateral security or otherwise,
and an off-set is not a pledge.
ThirdUnless prohibited by statute, a preference, even during insolvency, is valid. Thus,
payments made to alert and vigilant depositors during a run on an insolvent bank are valid.
to alert and vigilant depositors during a run on an insolvent bank are valid.
Platt & Sinai, for Respondent:
It is evident from sections 684 and 725 N. C. L. that they prohibit an insolvent bank, when
it has suspended banking operations, from granting a preference to a depositor or creditor of
the bank. If these statutes have any applicability at all, if a depositor came into a bank with a
check for acceptance eighteen days after the bank had suspended operations, and the check
was honored and the depositor paid, then certainly such a depositor would be getting a
preference over other depositors. Also, if a depositor in a savings account, as in the instant
case, gave her check to another at a time when the bank was closed, was insolvent, and had
suspended all banking business, and the payee upon the check presented it for payment or
offset, and the bank honored the check, again a preference would be granted.
The law has been very forcefully expressed by the supreme court of the United States that
the rights of parties in a transaction such as in the instant case became fixed at the moment of
insolvency. Dakin v. Bayly, 290 U. S. 143, 78 L. Ed. 95, 90 A. L. R. 899; Scott v. Armstrong,
36 L. Ed. 1059, 1063; Davis v. Elmira Savings Bank, 40 L. Ed. 700; Old Nat. Bank of
Evansville v. German American Nat. Bank of Peoria, 39 L. Ed. 259.
OPINION
This action was tried without a jury by the First judicial district court, Ormsby County.
The agreed statement shows, in substance, the following facts:
Between September 22, 1931, and April 20, 1932, appellant (plaintiff in the court below)
executed and delivered to the United Nevada Bank its several promissory notes, secured by
a mortgage of real property dated September 23, 1931.
to the United Nevada Bank its several promissory notes, secured by a mortgage of real
property dated September 23, 1931. On November 18, 1932, the balance due on said
indebtedness, principal and interest, aggregated approximately $25,000. On October 24,
1932, Esther A. Biltz deposited in said bank, as a savings account, the sum of $25,000. The
bank carried on its usual and customary business until twelve o'clock noon of Saturday,
October 29, 1932. Twelve o'clock noon of Saturday was the usual and customary hour at
which all banks in the State of Nevada closed until the following Monday at ten o'clock in the
morning. Before ten o'clock on the morning of Monday, October 31, 1932, the acting
governor of the State of Nevada proclaimed each of the several week days commencing
Tuesday, November 1, 1932, and ending Saturday, November 12, 1932, for all intents and
purposes business and banking legal holidays. After specifically excepting the courts and
educational institutions, said proclamation proceeded, in part, as follows: During which said
days, and for such period, the payment of all debts and obligations of every nature and
description, except the payment of taxes and obligations prescribed by statute, shall be
suspended, and if by the terms of any document or written evidence of debt, the time of
payment shall fall due within said period, then such time shall be extended for the full period
of suspension herein proclaimed. By subsequent proclamations said holidays were extended
to December 18, 1932.
From noon of Saturday, October 29, 1932, until the bank examiner took possession on
December 12, 1932, neither the said United Nevada Bank nor any other state bank in the
State of Nevada opened its doors to receive deposits or to allow withdrawals or to make
payment of checks, and during said period of time such banks did not transact customary or
usual banking business. During said period of time said bank was, and ever since has been,
insolvent.
From November 1, 1932, until December 12, 1932, during customary hours of banking
business, certain officers and employees of said United Nevada Bank were in its banking
rooms in the city of Reno, Washoe County, State of Nevada, and opened the doors of said
bank to admit any person who wished to discuss the financial condition of the bank or to
enter the safe deposit vault or to leave any papers with officers or employees of said bank. No
notice of the closing of said bank was posted on the doors of said banking building or on the
banking premises of said bank during said period of October 29, 1932, and December 12,
1932, but it was generally understood by all depositors and creditors that said bank was not
open for business; no court action to close said bank was then pending; the bank examiner of
the State of Nevada was not then in charge of or in possession of said bank; and no court
officer or other officer was then in charge of or in possession of said bank.
On November 18, 1932, said Esther A. Biltz duly assigned and transferred to plaintiff her
said savings account in the said United Nevada Bank in the amount of $25,000, represented
by United Nevada Bank savings passbook No. 764, which assignment duly was accepted by
plaintiff; therafter, and on November 25, 1932, plaintiff presented said assignment, in writing
to J. O. Walther, then and there the cashier of said bank, in the banking rooms of said bank,
which said assignment the said cashier declined to acknowledge or recognize, and plaintiff
also then and there presented to and left with the said J. O. Walther said savings deposit bank
passbook No. 764, also a receipt for the amount of the deposit signed by said Esther A. Biltz,
also a check drawn by said Esther A. Biltz upon said account of $25,000, in favor of plaintiff,
which said check the said cashier declined to honor or recognize. Plaintiff then and there
directed and requested that said United Nevada Bank apply the deposit shown by said
passbook No. 764 toward the payment of the principal and interest of said notes made by
plaintiff to said United Nevada Bank, less any payments thereon; and further, plaintiff
then and there demanded that said United Nevada Bank pay and cancel said mortgage.
of said notes made by plaintiff to said United Nevada Bank, less any payments thereon; and
further, plaintiff then and there demanded that said United Nevada Bank pay and cancel said
mortgage. Said United Nevada Bank declined to deliver to or surrender to plaintiff or cancel
the said notes or to satisfy the said mortgage, but the said J. O. Walther, cashier of said bank
as aforesaid, on said November 25, 1932, in the said banking rooms of said bank, took the
said passbook No. 764, the said receipt therefor signed by Esther A. Biltz, the said check for
$25,000, and the said written assignment and demand for payment of said notes by said
[$25,000, and the said United Nevada Bank then and there gave said Esther A. Biltz and
plaintiff a receipt for said passbook, check, assignment, letter demanding that said savings
account be applied in payment of said promissory notes, and Notes, Assignment, and
Demand (Community Property). (Copies of the papers and documents for which said receipt
was given are set forth in full in the agreed statement of facts.)
On December 12, 1932, the bank examiner of the State of Nevada, pursuant to statute,
took physical possession and control of said bank and its assets, and continued in such
possession and control until March 5, 1934. Plaintiff and said Esther A. Biltz demanded of
said bank examiner that he deliver to and surrender to plaintiff said promissory notes and that
he satisfy said mortgage, but he declined and refused to comply with said demand.
On February 28, 1934, defendant was appointed by said district court to be the receiver of
said bank, qualified as such receiver on March 5, 1934, and ever since has been the duly
appointed, qualified and acting receiver of said bank. Plaintiff and said Esther A. Biltz duly
demanded that said receiver deliver and surrender said notes to plaintiff and satisfy said
mortgage, but he refused and still refuses to comply with said demand, claiming and asserting
that the said notes and mortgage are unpaid and unsatisfied and are the property and
assets of his said receivership.
are unpaid and unsatisfied and are the property and assets of his said receivership.
After said refusals of the bank cashier, bank examiner and court receiver to comply with
said demands of plaintiff and said Esther A. Biltz, plaintiff commenced this action in said
district court, praying that said promissory notes be adjudged to have been fully paid, satisfied
and discharged on November 18, 1932; that defendant be ordered to surrender and deliver
said promissory notes to plaintiff; and that defendant be ordered to satisfy and discharge said
mortgage. Defendant answered the complaint. Plaintiff demurred to said answer and moved
to strike a portion thereof. The court overruled said demurrer and denied the motion to strike.
The cause came on regularly for trial, and judgment was rendered for the defendant. Plaintiff
moved for a new trial, which was denied, and this appeal has been taken by plaintiff from
said judgment, and from the order denying a new trial.
The legislature of 1933 passed a new bank act. Stats. of Nevada 1933, chap. 190, pp.
292-332. But at the times the transactions constituting the subject matter of the instant case
took place, the bank act of 1911 was in effect. Statutes of Nevada 1911, chap. 150, pp.
291-313; N. C. L. 1929, secs. 650-727. Sec. 23 of this act (N. C. L. 1929, sec. 672) reads as
follows: Any bank doing business under this act may place it affairs and assets under the
control of the bank examiner by posting a notice on its front door as follows: This bank is in
the hands of the state bank examiner.' The posting of such notice or the taking possession of
any bank by the bank examiner shall be sufficient to place all of its assets and property of
whatever nature in the possession of the bank examiner, and shall operate as a bar to any
attachment proceedings, and the said bank shall be liquidated and its property and assets
administered as in this act provided.
We quote also sec. 53 of said bank act of 1911 (N. C. L.
1929, sec. 702): Whenever it shall appear to the examiner that any bank to which this act is
applicable has violated its charter or any law of the state, or is conducting its business in an
unsafe or unauthorized manner, or its capital is impaired, or it shall refuse to make the reports
herein provided for, or refuse to permit its affairs to be examined by the examiner or his
deputies or agents, or shall refuse to comply with any lawful requests or orders of the
examiner or the state banking board; or shall suspend payment of its obligations; or if from
any examination or report provided for in this act, the examiner shall have reason to conclude
that such bank is in an unsafe or unsound condition to transact the business of banking, or
that it is unsafe and inexpedient for such bank to continue in business, the examiner may
forthwith take possession of the property and business of such bank and retain such
possession until such bank shall resume business or its affairs be finally liquidated as herein
provided. No bank, corporation, firm or individual knowing of such taking possession by the
examiner, shall have a lien or charge for any payment, advance or clearance thereafter made,
or liability thereafter incurred against any of the assets of the bank of whose property and
business the examiner shall have taken possession as aforesaid. Such bank may, with the
consent of the state banking board, resume business upon such conditions as may be
approved by them.
Section 56 of said act (N. C. L. 1929, sec. 705) contains a provision that after the posting
of the notice provided by said sec. 23 (N. C. L. 1929, sec. 672), or the taking possession of
any bank by the examiner, no attachment, execution or other writ shall be levied upon the
property or assets of such bank until such possession shall have been surrendered by the
examiner in accordance with the provisions of the act.
Under the provisions of sec. 25 of said bank act of 1911 (N. C. L. 1929, sec. 674): "A bank
shall be deemed to be insolvent:
A bank shall be deemed to be insolvent:
FirstWhen the actual value of its assets is insufficient to pay its liabilities;
SecondWhen it is unable to meet the demands of its creditors in the usual and
customary manner;
ThirdWhen it shall fail to make good its reserve as required by law.
Section 35 of the 1911 act (N. C. L. 1929, sec. 684), as amended, Stats. of Nevada 1931,
chap. 35, p. 41, provides that: No bank official shall give preference to any depositor or
creditor by pledging the assets of the bank as collateral security or otherwise; provided,
however, that any bank may secure funds deposited with such bank by the United States,
state, or counties of the state by pledging acceptable assets of the bank as collateral security;
provided further, that any bank may borrow money for temporary puropses, not to exceed the
amount of its paid-up capital, and may pledge any of its assets as collateral security therefor;
provided further, that when it shall appear that a bank is borrowing habitually for the purpose
of conducting its business, the bank examiner may require such bank to pay off such
borrowed money. Nothing herein shall prevent any bank from rediscounting in good faith and
indorsing any of its negotiable notes.
The civil practice act of 1911, secs. 8500-9385, N. C. L. 1929, contains the following
statutory provisions:
Section 8602 N. C. L. 1929: The answer of the defendant shall contain: * * * 2. A
statement, in ordinary and concise language, of any new matter constituting a defense or
counterclaim.
Section 8603 N. C. L. 1929, as amended, Stats. of 1931, chap. 148, p. 239:
The counterclaim mentioned in the last section shall be one existing in favor of the
defendant and against a plaintiff, between whom a several judgment might be had in the
action, and arising out of one of the following causes of action: "1.
1. A cause of action arising out of the transaction set forth in the complaint as the
foundation of the plaintiff's claims, or connected with the subject of the action.
2. In an action arising upon contract, any other cause of action arising also upon contract
and existing at the commencement of the action.
3. In all actions now pending or which may hereafter be commenced, arising upon
contract, wherein the plaintiff is a nonresident of the State of Nevada, or is insolvent, any
other cause of action existing at the commencement of the action, except a cause of action
founded upon a claim assigned after the commencement of the action.
Section 8605 N. C. L. 1929: When cross-demands have existed between persons under
such circumstances that if one had brought an action against the other a counterclaim could
have been set up, neither shall be deprived of the benefit thereof by the assignment or death
of the other, but the two demands shall be deemed compensation, so far as they equal each
other.
Section 8545 N. C. L. 1929: In the case of an assignment of a thing in action, the action
by the assignee shall be without prejudice to any set-off or other defense, existing at the time
of, or before notice of, the assignment; but this section shall not apply to a negotiable
promissory note, or bill of exchange, transferred in good faith, and upon good consideration,
before due.
Further reference herein to any of the foregoing statutes will be by section number in the
Nevada Compiled Laws of 1929.
Appellant does not contend that it would be entitled to offset the assigned savings deposit
against its indebtedness to the bank if, before the assignment on November 18, 1932, the
notice prescribed in sec. 672 N. C. L. 1929 had been posted, or the bank examiner had taken
possession of the bank's property and business pursuant to sec. 702 N. C. L. 1929, or a court
receiver for the bank had been appointed.
bank had been appointed. Appellant does contend, however, that as none of these three things
was done, it was legally entitled to the set-off in the absence of a statute to the contrary; and it
contends that there was no such statute in effect in 1932.
Respondent concedes that appellant would be entitled to such set-off if, at the time of the
assignment and demand for set-off, there had been no statute making such set-off unlawful.
He takes the position, however, that the allowance of the set-off would have violate certain
provisions of said sec. 684 and of sec. 1644 N. C. L. 1929.
Appellant's position on this appeal may be briefly stated as follows: Through the
assignment from Mrs. Biltz, appellant acquired a vested legal right of set-offa right which
it was legally entitled to acquire any time up to December 12, 1932, when the bank examiner
took possession of the property and assets of the bank and posted the statutory notice on the
front door. The bank was not legally closed or legally insolvent until said last-mentioned date.
Plaintiff's accrued right of set-off was not affected by the bank's insolvency, by the fact that
all parties concerned had notice of such insolvency, nor by the bank's ceasing to accept
deposits, pay checks, or transact usual and customary banking business. Under the maxim
expressio unius est exclusio alterius, secs. 672, 702 and 705 of the Nevada Compiled Laws
1929 manifest the legislative intent that attachments, executions and other writs may be
levied on the property and assets of a bank at any time before its officers post the statutory
notice of insolvency on the front door, or the bank examiner takes possession of its property
and assets, or a court receiver is appointed. In the instant case the bank wanted to have all
the benefits of closing, without the penalties, and wanted to have a sort of rest period in
which it would not be obliged to pay any of its debts and perhaps work out some scheme
whereby it wouldn't have to finally close its doors."
its doors. The allowance of the set-off would not violate the provisions of either sec. 684 or
sec. 1644 N. C. L. 1929; and said sec. 1644, which is a section of the general corporation law,
does not apply to banks at all. Mrs. Biltz and plaintiff should not be penalized because they
were diligent and vigilant in pursuit of their legal rights. The deposits of the bank did not
become a trust fund until the bank examiner took possession and posted notice of insolvency
on December 12. Those decisions in other jurisdictions which do not permit bank set-offs
during insolvency are based upon federal and state statutes entirely different from the Nevada
statutes in effect in 1932. A set-off is not a preference. The bank holiday proclamation did not
in any way affect plaintiff's right to a set-off. The allowance of plaintiff's set-off would not
contravene the rule of equality. In general, set-offs may be acquired during debtors'
insolvency; and there is no magic about insolvency which ipso facto cuts off either
attachment or set-off. Except where there is a statute to the contrary, the rule as to set-offs
acquired during the insolvency of debtors is the same whether applied to private persons,
nonbanking corporations, or banking corporations. In other jurisdictions where the statutory
law is similar to that of Nevada during 1932, the great weight of authority supports plaintiff's
right of set-off in the instant case.
1. Appellant puts forward several reasons in support of its contention that the set-off
claimed would not constitute the giving of a preference within the meaning of the first part of
amended sec. 684 N. C. L. 1929, which is the statutory provision chiefly relied upon by
respondent. In the first place, plaintiff interprets this provisions as prohibiting only
preferences by pledging the assets of the bank, and points out that a set-off, or the allowance
of a set-off, is not a pledge. According to this interpretation the wording would be, No bank
official shall give preference to any depositor or creditor by pledging the assets of the bank
as collateral security or otherwise pledging such assets."
creditor by pledging the assets of the bank as collateral security or otherwise pledging such
assets. We think, however, that the word otherwise refers back to the words give
preference to any depositor or creditor, not to the words pledging the assets of the bank;
and that the preferences prohibited by said statutory provision are not confined to pledges. In
the recent case of Dellamonica v. Lyon County Bank Mortgage Corporation, 58 Nev. 307, 78
P. (2d) 89, the transaction involved, which took place after the 1931 amendment to said sec.
684, was not a pledge, but was nevertheless condemned as a preference under the statutory
provision now under consideration.
2. Appellant further argues that the allowance of the set-off claimed by plaintiff would not
be giving a preference within the meaning of said amended sec. 684 because it does not call
for any affirmative act on the part of the debtor. Hence, the inactive, passive, condition of
the bank while it is being acted upon, so to speak, by way of a set-off or by way of an
attachment, execution, or any lien is not a preference. We cannot concur in this view. In the
case of Venango National Bank v. Taylor, 56 Pa. 14, at pages, 16, 17, the court had under
consideration sec. 52 of the act of Congress of June 3, 1864, 13 Stat. 115, 12 U. S. C. A. sec.
91 (banking act). In the course of its opinion the court said: We cannot assent to the
argument that it was intended for no more than to avoid all acts of the bank itself, all
voluntary transfers by it of its notes, bonds, deposits, etc., with a view to giving preferences.
Its language is general, as applicable to legal as to voluntary transfers. But if the deposit made
by John Rynd can be set off against the bond-debt due by Taylor to the bank, what is it but a
transfer of the bond-debt to the satisfaction of a creditor, thus giving him a preference? It is
not contended that the bank was not prohibited from doing this, but it is insisted the transfer
may be accomplished by an adversary proceeding at the suit of Rynd for the use of Taylor.
use of Taylor. It is not denied that Rynd, had he made no assignment of his claim, could not
have obtained payment of the debt due him by calling upon the bank after the 27th day of
March, 1866, when its doors were closed, and when it suspended payment. The bank, it is
conceded, was not at liberty to transfer to him either their claim against Taylor or any of their
assets, or to pay him any money: and if so, can the thing be secured by a hostile proceeding?
Will the law compel a payment or a transfer which the law prohibits a debtor from making?
And see Stone v. Dodge, 96 Mich. 514, 56 N. W. 75, 21 L. R. A. 280.
3. As a third reason why said sec. 684 does not make plaintiff's claim of set-off invalid,
appellant states that, unless prohibited by statute, a preference even in insolvency is valid.
Thus, payments made to alert and vigilant depositors during a run on an insolvent bank are
valid. It is to be observed, however, that the rule just stated applies where the payments are
made in the ordinary course of business. In the case at bar the bank, at the time of the
assignment, was not open for business.
4. At noon on October 29, 1932, and at all times thereafter, the United Nevada Bank was
insolvent. When the assignment was made, the bank's insolvency was known not only by its
officers but by plaintiff, Mrs. Biltz, and the public generally. At all times after October 29,
1932, the bank was closed for business and had ceased accepting deposits, paying checks or
doing a regular banking business. It was not a going concern, and had committed an act of
insolvency. We have reached the conclusion that the bank properly declined to allow the
set-off, for the reason that to have done so would have constituted a violation of the
provisions of the first part of said amended sec. 684 N. C. L. 1929. Sloss v. Taylor, 182 Ark.
1031, 34 S. W.(2d) 231; Miller v. Audenried, 67 N. J. Eq. 252, 57 A. 1076; Kennedy v. New
Orleans Sav. Inst., 36 La. Ann. 1; Schlesinger v. Goldberg, 47 Misc. 149, 93 N. Y. S.
Schlesinger v. Goldberg, 47 Misc. 149, 93 N. Y. S. 592; Davis v. Knipp, 92 Hun 297, 36 N.
Y. S. 705; Stone v. Dodge, supra; Venango National Bank v. Taylor, supra; Robinson v. Aird,
43 Fla. 30, 29 So. 633; Kullman & Co. v. Wooley, 5 Cir., 83 F. (2d) 129.
After October 29, 1932, Mrs. Biltz could not have lawfully withdrawn her deposit; and she
could not, by her assignment on November 18, 1932, give plaintiff any greater rights than she
herself had, particularly where, as in this case, plaintiff, as well as Mrs. Biltz and the bank,
knew of the bank's insolvency, that it was closed for business, was no longer conducting a
regular banking business, and was not a going concern.
Appellant contends that most of the decisions tending to support respondent's position
were based upon statutes differing entirely from those of Nevada; but it must be borne in
mind that while we are considering the set-off provisions of the civil practice act, we are not
permitted to overlook the section of the 1911 banking act which prohibited preferences to
depositors or creditors. It is true that differences exist in the statutes of the various
jurisdictions relating to preferences as well as to set-offs; but the fact remains that when the
transactions involved in this case took place, there was in effect a Nevada statute prohibiting
bank officials from giving preferences to depositors or creditors.
In Luikart v. Hunt, 124 Neb. 642, 247 N. W. 790, 792, the court said: The funds of
depositors are received by a banking corporation with the knowledge and notice given by this
wise principle of the law, not only to the officers of the bank, but to every depositor, that all
assets of the bank, which are largely created by these deposits, will always be a fund subject
to pro rata repayment to the depositors, whenever the bank ceases to function as a going
concern and to pay its depositors in the ordinary course of business.
We quote the following from Citizens' State Bank of Chautauqua v. First Nat. Bank of
Sedan, 98 Kan. 109, 157 P. 392, 395, L. R. A. 1917a, 696: For reasons of public policy the
Legislature saw fit to safeguard the interests of depositors and other creditors of banks
by enacting regulations controlling the operation of banks and limiting their power to
prefer one creditor over another at a time when the bank is insolvent.
public policy the Legislature saw fit to safeguard the interests of depositors and other
creditors of banks by enacting regulations controlling the operation of banks and limiting
their power to prefer one creditor over another at a time when the bank is insolvent. * * *
From the time a bank becomes insolvent all creditors stand on an equal footing as to assets on
hand. Those creditors who were diligent when the bank was solvent are permitted to retain
the benefits of securities surrendered then. The moment a bank becomes insolvent its assets
become a trust fund for the pro rata payment of the claims of all its creditors.
Appellant has cited a large number of cases, but places most reliance on the following: Nix
v. Ellis, 118 Ga. 345, 45 S. E. 404, 98 Am. St. Rep. 111; Johnston v. Humphrey, 91 Wis. 76,
64 N. W. 317, 51 Am. St. Rep. 873; Bank of Leipsic v. Kreinbrink, 50 Ohio App. 404, 198 N.
E. 498; O'Connell v. Holbrook, 270 Mich. 643, 259 N. W. 349. The first three of these cases
do not discuss preferences or refer in any way to statutory provisions prohibiting the giving of
preferences by banks or banking officials to depositors or creditors. In the last of said cases,
O'Connell v. Holbrook, copartners conducted a private banking business under the name and
style of the Bank of Hubbardston. After the bank closed, but before the receiver was
appointed, plaintiff purchased certain certificates of deposit and asked to have them set-off
against his indebtedness to the bank. The set-off was allowed, but attention is called to the
following language in the opinion: Defendants appeal from a decree granting the set-off and
discharging plaintiff's indebtedness, claiming the bank was insolvent at the time it closed; that
it was a bank within the meaning of the statute against preferential payments; that the
definition of insolvency is the same for a private bank, owned by a copartnership, as for an
incorporated bank; and that plaintiff was not entitled to have set-off made after insolvency of
the bank. The general banking statutes are not applicable. The so-called bank was a business
endeavor of the partnership and was not insolvent apart from insolvency of all the
copartners.
was a business endeavor of the partnership and was not insolvent apart from insolvency of all
the copartners. First National Bank & Trust Co. v. Storms, 265 Mich. 453, 251 N. W. 576.
Insolvency of the copartners, and not merely of the bank, was for the receiver to establish, and
such was not properly shown. Mr. Fitzpatrick had a right to transfer to plaintiff the certificate
obligations of the partnership and plaintiff had a right to have the set-off made. The case does
not fall within the rules and statutory provisions applicable to incorporated banks.
The case just quoted from (O'Connell v. Holbrook) is more helpful to respondent than
appellant, because it lends support to the proposition that the set-off provisions of the civil
practice act should not be permitted to override banking statutes which forbid the giving of
preferences by banking officials to depositors or creditors. The United Nevada Bank was a
banking corporation, and the provisions of sec. 684 N. C. L. 1929, as amended, were clearly
applicable to it. O'Connell v. Holbrook plainly intimates that if the banking statutes
forbidding preferential payments had been applicable in that case, the set-off might not have
been allowed.
Appellant claims that three decisions of this court tend to support, by analogy, its position
in the instant case: Irving National Bank v. District Court, 47 Nev. 86, 217 P. 962; E. H.
Beemer v. E. J. Seaborn, 54 Nev. 459, 22 P. (2d) 356; Organ v. Winnemucca State Bank &
Trust Co., 55 Nev. 72, 26 P. (2d) 237. In the Irving case the insolvent was not a banking
corporation, and there was therefore no question as to whether the provisions of said sec. 684
N. C. L. 1929, as amended, were applicable. In the Beemer case the motion to dissolve and
discharge the writ of attachment was based upon numerous grounds, only one of which is
mentioned in this court's opinion on the appeal in that case. The decision of this court in that
case was based solely upon the ground that if the writ was levied at all, it was after the
money and property of the bank had been taken possession of by the state bank
examiner, pursuant to law.
after the money and property of the bank had been taken possession of by the state bank
examiner, pursuant to law. The Organ case involved the pledging of assets of a state bank as
security for money borrowed in excess of its paid up capital. This transaction took place
before the bank closed its doors, while it was a going concern and doing a regular banking
business. This court held that, as the lender acted in good faith, the pledging of the bank's
assets was valid as against the bank and its receiver. We have given these cases careful
consideration, but we are of the opinion that our decision in the case at bar is not inconsistent
with any of them.
The views herein expressed make it unnecessary to decide whether sec. 1644 N. C. L.
1929, applies to banks, or, if so, whether the allowance of the set-off would contravene its
provisions.
The conclusion arrived at by the court has not been influenced in any respect whatsoever
by the executive proclamation purporting to set apart certain days in November and
December 1932 as banking and business holidays.
October 20, 1938. 83 P. (2d) 464.
The statute prohibiting bank officials from giving preferences to any depositor or
creditor manifests intent to protect depositors and creditors not only from fraudulent and
improper acts which would result in preferment of special friends of bank officials, but
against any giving of preferences, whether accompanied by actual or only by constructive
fraud. Comp. Laws, sec. 684.
Under statute prohibiting levy of attachment or execution against bank's assets after
posting of notice that bank is in hands of state examiner, depositor or depositor's assignee
does not have an established right to sue and attach bank's assets at any time before
voluntary closing of bank and posting of notice, or taking possession of bank by bank
examiner. Comp. Laws, secs. 672, 684, 705.
Where depositor's assignee demanded that amount of deposit be set-off against
assignee's mortgage debt to bank, when bank was insolvent, had closed its doors, and
was not engaging in regular banking business, though bank examiner had not taken
possession, notice had not been posted on the bank's front door, and receiver had not
been appointed, the claimed set-off was not allowable under statute prohibiting giving of
preferences to depositors. Comp. Laws, secs. 672, 684, 705.
Petition for rehearing denied.
Springmeyer & Thompson, for Appellant.
Platt & Sinai, for Respondent.
OPINION
1. Appellant contends that sec. 684 N. C. L. 1929, even when construed independently of
other sections of the bank act of 1911, indicates the intent of the legislature to protect
depositors and creditors against only fraudulent and improper acts of the bank officials during
the insolvency of a bank, which acts would result in the preferment of special friends of said
officers among the depositors. To go further, argues appellant, is to add something that the
legislature did not say, and did not intend. Putting it in another way, the language, says
appellant, must be warped and strained if the interpretation put upon said section by this court
is to be upheld. We think what was said in our original opinion is a sufficient answer to the
aforesaid contention. It is true that the section in question does protect depositors and
creditors against fraudulent and improper acts of bank officials, which would result in the
preferment of special friends of such officials. But we are satisfied that the purpose of sec.
we are satisfied that the purpose of sec. 684 goes much further, and that its chief purpose is to
protect depositors and creditors against the giving of preferences by bank officials, whether
their conduct be accompanied by actual fraud on the other hand, or only constructive fraud on
the other. First National Bank & Trust Co. v. Manning, 116 Conn. 335, 164 A. 881. This
view is supported by a large number of authorities, including statements in the opinions in
two cases cited by appellant; Hadlock v. Callister, 85 Utah 510, 39 P. (2d) 1082; Citizens
State Bank of Chautauqua v. First National Bank of Sedan, 98 Kan. 109, 157 P. 392, L. R. A.
1917A. 696. We quoted from Citizen's State Bank v. First National Bank, supra, in our
former opinion. We now quote from the opinion in Hadlock v. Callister, supra, 39 P. (2d)
1085: In the conduct of a banking business, other peoples' moneys are solicited and received
by the bank to be used and invested by it for the benefit and profit of its stockholders. The
confidence and integrity of a bank and its ability to properly safeguard the money thus
intrusted to it is a necessary asset to its continued existence. Such confidence only can be
sustained by adopting and practicing the policy of equity of treatment between depositors
with preferences to none. Any practice which tends to destroy that confidence should not be
permitted. * * * The policy of the law is to provide a maximum of protection and equality of
treatment to all depositors.
2. Appellant, in its petition, renews its contention that when sec. 684 N. C. L. 1929 is
construed in relation to secs. 672 and 705 N. C. L. 1929 (quoted in our original opinion), it is
even more evident that it was not the intent of the legislature to prohibit the acquisition of a
preferential position by a wholly adversary proceeding during the insolvency of the bank, but
before it has formally closed pursuant to law. Appellant apparently considers if an established
rule, under such statutes as ours, that a depositor or other creditor of a bank may sue and
attach its assets or levy execution against such assets at any time prior to the occurrence
of either of two events: {1) The voluntary closing and posting a notice on the front door
by the bank, {2) the taking possession of the bank by the bank examiner.
a bank may sue and attach its assets or levy execution against such assets at any time prior to
the occurrence of either of two events: (1) The voluntary closing and posting a notice on the
front door by the bank, (2) the taking possession of the bank by the bank examiner. While we
do not consider it necessary to decide this question in the instant case, we do say that, in our
opinion, it is not an established rule of law, even under such statutes as said secs. 672 and 705
N. C. L. 1929, that, in a situation such as that presented in this case, the depositor or her
assignee could successfully sue and attach the assets of the bank. In so saying, we have in
mind the case of Crane v. Pacific Bank, 106 Cal. 64, 39 P. 215, 27 L. R. A. 562. This case
was cited in the original briefs on appeal herein, but was dismissed by appellant with the
statement that it held invalid an attachment against a bank after the bank, in accordance with
the order of the state banking commissioners, had closed it doors and gone into liquidation.
In the California reports the first paragraph of the syllabi reads as follows: The assets of
an insolvent bank are to be administered exclusively under the Bank Commissioners' Act for
the benefit of all the depositors and creditors of the bank, as well as its stockholders; and
where a commercial bank has suspended and closed its doors, owing to insolvency in fact, the
right of attachment by a depositor or creditor of the bank does not exist, and such an
attachment will be dissolved although levied before the machinery of the Bank
Commissioners' Act was put in motion by the commencement of an action by the people.
106 Cal. 64, 39 P. 215, 27 L. R. A. 562.
From the opinion we learn the following facts: The bank closed its doors for business,
and wholly suspended payment of its debts, dues, and liabilities, on the 23d day of June,
1893, and has not since resumed payment; that on said last-mentioned day said bank held in
trust for persons, partnerships, and corporations an aggregate fund amounting to about
$1,S6S,041.45; that, prior to the said last-mentioned day, said bank commissioners
examined said bank, and found that it had been guilty of a violation of law in conducting
business contrary to its articles of incorporation in an unsafe manner, and so as to
seriously jeopardize the capital, property, and business of the bank, and thereupon
directed it, by an order addressed to it, to discontinue such illegal and unsafe practices,
and to conform to the requirements of its charter, but that the bank refused and
neglected to comply with said order; that on said 23d day of June, 1S93, the indebtedness
of said bank was largely in excess of the reasonable and actual value of its assets; that
the entire capital stock, together with the surplus, had become completely exhausted, and
that the directors and stockholders neglected and refused to pay in said depleted stock, or
any part of it, and 'that on said 23d day of June, 1S93, said Pacific Bank was wholly
insolvent and remains so insolvent'; that the commissioners reported the condition of the
bank to the attorney general, as required by law; that said attorney general commenced
an action in the superior court on the 14th day of October, 1S93, entitled, 'The People of
the State of California v. The Pacific Bank, a Corporation, et al.,' in which action it was
decreed on November 3, 1S93, that said bank was insolvent, etc.,
an aggregate fund amounting to about $1,868,041.45; that, prior to the said last-mentioned
day, said bank commissioners examined said bank, and found that it had been guilty of a
violation of law in conducting business contrary to its articles of incorporation in an unsafe
manner, and so as to seriously jeopardize the capital, property, and business of the bank, and
thereupon directed it, by an order addressed to it, to discontinue such illegal and unsafe
practices, and to conform to the requirements of its charter, but that the bank refused and
neglected to comply with said order; that on said 23d day of June, 1893, the indebtedness of
said bank was largely in excess of the reasonable and actual value of its assets; that the entire
capital stock, together with the surplus, had become completely exhausted, and that the
directors and stockholders neglected and refused to pay in said depleted stock, or any part of
it, and that on said 23d day of June, 1893, said Pacific Bank was wholly insolvent and
remains so insolvent'; that the commissioners reported the condition of the bank to the
attorney general, as required by law; that said attorney general commenced an action in the
superior court on the 14th day of October, 1893, entitled, The People of the State of
California v. The Pacific Bank, a Corporation, et al.,' in which action it was decreed on
November 3, 1893, that said bank was insolvent, etc., and enjoining it and its officers from
transacting any further business.
In the course of its opinion the supreme court of California said in part: It needs no
argument to show that the exercise of the sovereign power of the state over such corporations
in the manner above indicated is intended for the protection, not only of the stockholders, but
especially for the protection of depositors and all others transacting business with or through
the bank. * * * If the bank commissioners' act operates to take banks out of the operation of
the insolvency act, the proceedings under which, though summary and expensive, result in
the equal distribution of its assets among its creditors, it is equally clear that it was not
intended that the moment a bank closed its doors its assets should be the prey of the first
creditors who should secure the issuance of attachments, and thus permit its assets to be
converted into money by a still more expensive process, and that the proceeds should be
applied to the payment in full of these attachments, leaving other creditors, who, by
reason of distance or otherwise, should not be informed of the bank's condition, or be
able to secure the prompt issuance of an attachment, wholly without a right to share in its
assets.
expensive, result in the equal distribution of its assets among its creditors, it is equally clear
that it was not intended that the moment a bank closed its doors its assets should be the prey
of the first creditors who should secure the issuance of attachments, and thus permit its assets
to be converted into money by a still more expensive process, and that the proceeds should be
applied to the payment in full of these attachments, leaving other creditors, who, by reason of
distance or otherwise, should not be informed of the bank's condition, or be able to secure the
prompt issuance of an attachment, wholly without a right to share in its assets. * * *
Appellant contends, however, that the right of attachment is a positive statutory right, and that
the bank commissioners' act makes no provision for dissolving attachments levied before the
machinery of the act was put in motion by the commencement of the action by the people.
But, before the attachment was levied, the bank had suspended and closed its doors. The
affidavits in support of the motion not only state that fact, but also that it was in fact
insolvent, and these facts are not denied. Under these circumstances, the right of attachment
did not exist. * * * It requires no argument to show that the right of attachment under the
provisions of the Code of Civil Procedure is inconsistent with the machinery of the bank
commissioners' act, as well as with its obvious purpose and intent. The state never intended
that after the continued exercise of its high prerogative powers for the safety of all depositors
and creditors, as well as stockholders, its purpose should be thwarted by the seizure of the
assets of the bank by one or more creditors * * *.
Crane v. Pacific Bank, supra, was an appeal from an order dissolving an attachment. The
motion was made in the superior court on November 17, 1893. On the hearing of the motion,
the movant offered in evidence the records and papers in People v. Pacific Bank, the case
commenced by the attorney-general in the superior court on October 14, 1S93, and in
which said court decreed on November 3, 1S93, that the bank was insolvent and enjoined
it from transacting any further business.
case commenced by the attorney-general in the superior court on October 14, 1893, and in
which said court decreed on November 3, 1893, that the bank was insolvent and enjoined it
from transacting any further business. On the hearing of the motion to dissolve the
attachment, the plaintiff excepted to the action of the lower court in receiving the complaint,
answer and decree in said case of People v. Pacific Bank. On appeal to the supreme court
from the order dissolving the attachment, the latter court ruled that said papers were properly
in evidence on the hearing of the motion to dissolve in the lower court. In connection with
this ruling, the court made this significant statement (Crane v. Pacific Bank, supra, 106 Cal.
64, at page 72, 39 P. 215, at page 218, 27 L. R. A 562): If it were otherwise, since the
affidavit of Mr. Gerberding that the bank was in fact insolvent on June 23d, and ever since
remained so, was not controverted, the order dissolving the attachment might have been
properly sustained without the evidence excepted to, and, if so, appellant was not prejudiced
by its admission.
The rule announced in Crane v. Pacific Bank, supra, is adopted in the first two sentences
of the text of sec. 187, 4 Cal. Jur. 307. In the case of Dodson v. Wightman, 6 Kan. App. 835,
49 P. 790, cited by appellant in the instant case, the court did not question the rule laid down
in Crane v. Pacific Bank, supra, but expressed the opinion that the Crane case was not
applicable, as will be seen by the following language in the opinion in the Kansas case [page
792]: It will be proper to bear in mind that this bank was not authorized to do business, and
that any general doctrine as to public policy in respect to authorized banks would not be
applicable to the bank in question. Hence we think the decision of the supreme court of
California in Crane v. Pacific Bank [106 Cal. 64], 39 P. 215 [27 L. R. A. 562], which is cited
by the attorney general, is not applicable to this case.
3. Appellant takes the position that Mrs. Biltz could have commenced action and attached
the assets of the bank to compel the bank to allow her to withdraw her deposit, and that,
therefore, it cannot properly be said that, in assigning her deposit to appellant, she was
attempting to transfer greater rights than she herself had. But it is this court's opinion that if
the bank had allowed Mrs. Biltz to withdraw her deposit after October 29, 1932, it would
have been giving her a preference within the meaning of sec. 684 N. C. L. 1929. 7 Am. Jur.
519, sec. 717, nn. 12 and 13. Likewise it would have been giving a preference to appellant
had the bank allowed it to offset the deposit assigned to it by Mrs. Biltz against its
indebtedness to the bank.
It must be borne in mind that, in the instant case, the main question is whether the bank
would have violated the provisions of sec. 684 N. C. L. 1929, if it had allowed the set-off
demanded by appellant. At the time the set-off was demanded, the bank was insolvent in fact,
had closed its doors, was not a going concern, was not paying checks, allowing withdrawals,
or otherwise engaging in any of the usual transactions in the course of a regular banking
business. In determining whether the allowance of the set-off would have constituted the
giving of a preference, the foregoing facts, and the further fact that they were known to all
parties concerned at the time of the assignment, are of more compelling and controlling force
than the facts that no notice had been posted on the front door of the bank, the bank examiner
had not taken possession, and no receiver had been appointed at the time of the assignment.
We cannot, in the face of sec. 684 N. C. L. 1929, subscribe to a doctrine which, in a situation
such as that presented by the facts and circumstances in this case, would allow a bank to give
an unfair advantage to one general depositor or creditor simply because a bank examiner
failed in his duty to take over the assets when he should have done so, or because the bank
officials failed in their duty to post a notice on the front door of the bank when it ceased
doing a regular banking business.
to post a notice on the front door of the bank when it ceased doing a regular banking business.
When appellant requested or demanded the allowance of the set-off, the bank knew that it
was insolvent and that it could not pay all its depositors and creditors in full; it thus knew that
compliance with appellant's demand would give it a preference over other depositors and
creditors, because appellant would in effect receive the full amount of its assigned deposit,
whereas other general depositors and creditors, and particularly those not so situated as to be
able to know the facts or take speedy action, would receive only their ratable proportion of
what was left. The bank officials could not, therefore, have allowed the set-off without
intentionally giving appellant an unfair advantage over other general depositors and creditors.
Roberts v. Hill C. C. 24 F. 571; Hadlock v. Callister, supra; Singac Trust Co v. Totowa
Lumber & Supply Co., 112 N. J .L. 99, 169 A. 673; Annotation, 74 A. L. R., page 941; 9 C. J.
S. Banks and Banking, pages 948, 949, sec. 487, n. 55; Tiffany on Banks and Banking, secs.
87-88.
The petition for rehearing is denied.
____________
58 Nev. 404, 404 (1938) Judd v. Ball
ROY A. JUDD, Appellant, v. Wm. K. BALL and LILLIE BALL, His wife, Respondents.
No. 3214
December 1, 1937. 73 P. (2d) 830.
ON MOTION TO DISMISS
A motion to dismiss appeal for insufficiency of undertaking thereon must be denied, where appellent's
counsel presented admittedly good and sufficient undertaking, approved by supreme court justices, after
service of notice to dismiss (Stats. 1937, c. 32, sec. 27).
A motion to strike approved undertaking to stay execution pending appeal from judgment on ground that
supreme court was without jurisdiction to approve it must be denied, where no notice of such motion was
given.
Proceeding between Roy A. Judd and William K. Ball and wife. From a judgment for Ball
and wife and an order denying a motion for new trial, Judd appeals. On respondent's motion
to dismiss the appeal. Motion denied.
Clel Georgetta, for Appellant.
George Gunzendorfer, for Respondents.
OPINION
Respondents noticed a motion to dismiss the appeal from the judgment and from an order
denying a motion for a new trial. The grounds alleged in the motion are that the undertakings
filed in support of the appeals are insufficient. It is also alleged, that said motion to dismiss
the appeals will be made upon the further ground that the undertaking to stay execution is
insufficient and void."
58 Nev. 404, 405 (1938) Judd v. Ball
ground that the undertaking to stay execution is insufficient and void.
1, 2. After the notice to dismiss the appeals was served, appellant's counsel presented to
the justices of this court an undertaking on appeal and an undertaking to stay execution,
which, after their approval by the justices, were filed in this court. On the hearing of the
motion, counsel for respondents conceded that the approved undertaking on appeal was a
good and sufficient undertaking and that his motion to dismiss the appeals could not,
therefore, be granted. We are of the same opinion.
Section 27, Stats. 1937, c. 32, at page 62, provides for the giving of such an undertaking
where the original is insufficient. Counsel for respondents argued that this court was without
jurisdiction to approve the undertaking to stay execution, and moved to strike it. No notice
was given that such a motion would be made. It is therefor denied.
The motion to dismiss the appeals is denied.
On the Merits
September 7, 1938. 83 P. (2d) 353.
1. Fraud.
In action to foreclose a chattel mortgage securing note given for sale of land, wherein
defendant counterclaimed for damages sustained because of alleged fraud of plaintiffs in
representing that they had title to 40-acre tract comprising part of land conveyed, and
wherein plaintiffs contended that they had represented merely that a deed to the 40 acres
had been promised to them by third person, evidence sustained all findings essential to
support judgment for plaintiffs.
2. Fraud.
Where vendors did not have title to 40 of 100 acres conveyed, measure of purchaser's
damages, if vendors were guilty of fraud, was not market value at time of sale, but was
the value of the 40 acres in proportion to its relative value and importance when taken in
connection with the whole, where property was purchased for a gross sum without
placing a specific value on each or any particular part.
Trial court's error in improperly holding that measure of purchaser's damages was
market value of portion of land to which vendors did not have title, though allegedly
they fraudulently represented that they did, rather than its value in proportion to its
relative value and importance when taken in connection with the entire tract
conveyed, was not prejudicial, when purchaser first attempted to prove market value
of the portion of the land to which vendors did not have title, and failing in that, made
no offer to prove relative value of that portion.
58 Nev. 404, 406 (1938) Judd v. Ball
which vendors did not have title, though allegedly they fraudulently represented that they
did, rather than its value in proportion to its relative value and importance when taken in
connection with the entire tract conveyed, was not prejudicial, when purchaser first
attempted to prove market value of the portion of the land to which vendors did not have
title, and failing in that, made no offer to prove relative value of that portion.
Trial court's error in improperly holding that measure of purchaser's damages was
market value of portion of land to which vendors did not have title, rather than its value
in proportion to value of entire tract conveyed, was not prejudicial, where purchaser
failed to show that vendors were guilty of fraud on which purchaser based his claim for
damages.
Court's refusal to permit purchaser's witnesses to testify as to market value of certain
land, which vendors had allegedly represented as belonging to them in order to induce
purchaser to purchase tract of which the land was a part, if error, was not reversible error,
where purchaser failed to show any fraud on part of vendors.
Action by William K. Ball and Lillie Ball, his wife, against Roy A. Judd to foreclose a
chattel mortgage, wherein the defendant set up an affirmative defense and interposed two
counterclaims for damages. From an adverse judgment and from an order denying his motion
for a new trial, the defendant appeals. Judgment and order affirmed.
Clel Georgetta, for Appellant:
It is unnecessary to go beyond the decisions of this court in order to demonstrate
conclusively that it was reversible error for the trial court to take the position that the measure
of damages, in view of the facts of this case, was the market value of the land. Dalton v.
Bowker, 8 Nev. 190; Hoffman v. Bosch, 18 Nev. 360, 4 P. 703; Thomas v. Palmer, 49 Nev.
438, 248 P. 887.
It was error for the trial court to refuse to allow certain well-qualified witnesses to testify
as to the value of the Ball ranch, and the comparative value of that portion received by
the defendant and that portion of which he was dispossessed.
58 Nev. 404, 407 (1938) Judd v. Ball
certain well-qualified witnesses to testify as to the value of the Ball ranch, and the
comparative value of that portion received by the defendant and that portion of which he was
dispossessed. 11 R. C. L. 636; sec. 55; Mountz v. Apt, 51 Colo. 491, 119 P. 150; San Diego
Land and Town Co. v. Neale (Cal.), 20 P. 372; DeFreitas v. Town of Suisun, 170 Cal. 263,
149 P. 553; Blagen v. Thompson (Ore.), 31 P. 647.
After the lower court took the position that the measure of damages was the market value
of the land of which the defendant was dispossessed, it was error for the court to refuse to
allow certain well-qualified witnesses to testify as to the market value. Pittsburg V. & C. R.
R. Co. v. Vance, 115 Pa. St. 325, 8 Atl. 764; Wickstrum v. Carter (Kans.), 58 P. 1020.
The opinion of the trial court is in many respects contrary to the evidence and against the
law.
George Gunzendorfer, for Respondents:
At no time did the defendant attempt or offer to show what was the value of the forty-acre
tract proportioned to the whole purchase price. What the defendant undertook to do was to
show the market value of the forty acres; nor did he have any clear idea as to that. Further, he
did not attempt to show the market value of the tract at or near the time of sale. As a matter of
fact, none of the witnesses produced by defendant had any special knowledge of the value of
lands in the vicinity of the Ball ranch. No specific instance was attempted to be shown of the
sale of any land in or near that vicinity nor at or near the time of the sale.
It must also be borne in mind that defendant was always aware of the fact that plaintiffs
did not have title to the forty-acre tract. The defendant had been apprised on his first visit to
the Ball ranch that plaintiffs did not have title to the forty acres, but that it had been promised
to them by the Realization Company as compensation for looking after other lands owned
by that company in that vicinity.
58 Nev. 404, 408 (1938) Judd v. Ball
as compensation for looking after other lands owned by that company in that vicinity.
Defendant also testified that Mr. Mueller, of the Realization Company, stated to him that he
had promised Mr. Ball forty acres of the old Douglas ranch. This disposes of defendant's
charge of fraudulent representation.
The trial court saw and heard the witnesses and was better able to judge of their credibility
than this court from the cold typewritten record. The trial court, could, as it did, determine
that the case in whole pointed to the truthfulness of what Mr. and Mrs. Ball testified to and to
the lack in that respect of the testimony of the defendant and those who appeared in his
behalf.
OPINION
This action was commenced to foreclose a chattel mortgage. The defendant, appellant
here, answered, making certain denials, setting up an affirmative defense, and interposing two
counterclaims for damages. It will be convenient to refer to the parties as plaintiffs and
defendant.
The mortgage given on certain livestock was executed to secure a promissory note for
$587. Trial of the cause by the court resulted in a judgment for plaintiffs for the entire amount
of the principal and interest of the note, together with an attorney fee and costs, less the sum
of $120 allowed defendant as damages. The appeal is taken from the judgment and order
denying the motion for a new trial.
Plaintiffs were the owners of and had resided on a ranch property of sixty acres of land in
Washoe County for a number of years prior to the transaction out of which this controversy
arose. Beginning on June 28, 1933, defendant made several visits to the property in
contemplation of its purchase. On January 7, 1934, they agreed on the terms and conditions
of the sale of the property, including a forty-acre tract adjoining the same, and on May 11,
1934, by a grant, bargain and sale deed plaintiffs sold to defendant the said 100 acres of
land.
58 Nev. 404, 409 (1938) Judd v. Ball
they agreed on the terms and conditions of the sale of the property, including a forty-acre tract
adjoining the same, and on May 11, 1934, by a grant, bargain and sale deed plaintiffs sold to
defendant the said 100 acres of land. The price agreed to be paid for the land was $4,000, and
the amount of the principal of the promissory note sued on represents the unpaid balance of
the purchase price.
It appears that plaintiffs did not have title to said forty acres of land described in the deed,
and defendant's defense and claims for damages alleged in his answer are predicated upon the
claim that plaintiffs, prior to the sale, represented to him that they had title to said forty acres.
Defendant's pleading in this regard is also predicated upon the claim that plaintiffs, prior to
the sale, represented to him that a certain natural reservoir site in Jumbo canyon in the
vicinity of the lands, was upon public lands owned by the United States, and could be utilized
by the owner on possession of the lands, whereas, in fact said site was on privately owned
land and could not be so utilized.
It is alleged in said defense and counterclaims that the above representations were
inducements to defendant to purchase said lands, were relied on him as true, and known to
plaintiffs to be untrue. It is also alleged therein that shortly after the sale of the lands
defendant was dispossessed of said forty acres and has been unable to obtain the title in fee or
the right to possession of the same to the present time, to his damage in the sum of $2,500.
Damages for the alleged false representation in regard to the reservoir site are laid at $2,000.
The trial court found against defendant upon all issues of fraud and in this connection
found that on or about January 7, 1934, plaintiffs agreed to sell to defendant their ranch in
Jumbo canyon, Washoe County, Nevada, consisting of sixty acres of land, and also forty
additional acres of land adjacent to said sixty acres; that plaintiffs represented to
defendant that they had been promised by the Realization Company, a corporation of the
State of Nevada, a deed to said forty acres for certain services rendered by them to said
company; that plaintiffs agreed that if and when they obtained a deed to said forty acres
of land to convey the same to defendant; that plaintiffs had title in fee absolute to sixty
acres of land described as the SE 1J4 of the NW 1J4 and the W 1J2 of the SW 1J4 of the
NE 1J4 of section 5, T. 16 N., R. 20 E., together with such water rights and appurtenances
as belonged to the same; that the representations made by plaintiffs to defendant
respecting the forty acres of land described as the SW 1J4 of the NW 1J4 of said section
were true and made in good faith; that before the Realization Company executed such
deed to plaintiffs, all of its property, rights and assets were by foreclosure or otherwise
vested in the United Nevada Bank of Reno, Nevada, which refused to recognize the
agreement of the Realization Company to convey the said parcel of forty acres to
plaintiffs, but did offer to sell the same for the sum of $120, all of which facts defendant
had actual notice and knowledge previous to the 14th day of May 1934, the date on which
said promissory note and chattel mortgage to plaintiffs, and plaintiffs' deed to defendant
were respectively executed and delivered; that at the instance and request of said
defendant and in order to avoid the expense of executing and recording a separate deed
thereof, plaintiffs included in their conveyance of sixty acres, hereinbefore described, the
said additional forty acres, said plaintiffs and defendant anticipating the ultimate
conveyance to plaintiffs of said forty acres; that thereafter said defendant, or Leon Judd,
the foster son of said defendant, purchased from the United Nevada Bank the said forty
acres for the sum of $120.
58 Nev. 404, 410 (1938) Judd v. Ball
also forty additional acres of land adjacent to said sixty acres; that plaintiffs represented to
defendant that they had been promised by the Realization Company, a corporation of the
State of Nevada, a deed to said forty acres for certain services rendered by them to said
company; that plaintiffs agreed that if and when they obtained a deed to said forty acres of
land to convey the same to defendant; that plaintiffs had title in fee absolute to sixty acres of
land described as the SE 1/4 of the NW 1/4 and the W 1/2 of the SW 1/4 of the NE 1/4 of
section 5, T. 16 N., R. 20 E., together with such water rights and appurtenances as belonged
to the same; that the representations made by plaintiffs to defendant respecting the forty acres
of land described as the SW 1/4 of the NW 1/4 of said section were true and made in good
faith; that before the Realization Company executed such deed to plaintiffs, all of its property,
rights and assets were by foreclosure or otherwise vested in the United Nevada Bank of Reno,
Nevada, which refused to recognize the agreement of the Realization Company to convey the
said parcel of forty acres to plaintiffs, but did offer to sell the same for the sum of $120, all of
which facts defendant had actual notice and knowledge previous to the 14th day of May 1934,
the date on which said promissory note and chattel mortgage to plaintiffs, and plaintiffs' deed
to defendant were respectively executed and delivered; that at the instance and request of said
defendant and in order to avoid the expense of executing and recording a separate deed
thereof, plaintiffs included in their conveyance of sixty acres, hereinbefore described, the said
additional forty acres, said plaintiffs and defendant anticipating the ultimate conveyance to
plaintiffs of said forty acres; that thereafter said defendant, or Leon Judd, the foster son of
said defendant, purchased from the United Nevada Bank the said forty acres for the sum of
$120. That at all times from on or about the 28th day of June 1933, defendant had actual
knowledge and was fully aware of the fact that plaintiffs did not own or have title to the
said forty acres of land, and had actual knowledge of the said agreement between
plaintiffs and said Realization Company; that defendant visited the said lands and
inspected the same on at least four different occasions between the 2Sth day of June
1933, and the 7th day of January 1934, on which latter date plaintiffs delivered
possession to defendant of said sixty acres, including all water rights belonging thereto,
and defendant and his family removed thereto and at all times thereafter up to the time of
the trial of this action resided thereon and now reside thereon, and during which period
defendant had every opportunity to investigate and ascertain the true status of the title to
said forty acres of land; that on January 7, 1934, the title to said forty acres of land was in
the Realization Company and was then and now is of the value of $120.
58 Nev. 404, 411 (1938) Judd v. Ball
plaintiffs did not own or have title to the said forty acres of land, and had actual knowledge of
the said agreement between plaintiffs and said Realization Company; that defendant visited
the said lands and inspected the same on at least four different occasions between the 28th
day of June 1933, and the 7th day of January 1934, on which latter date plaintiffs delivered
possession to defendant of said sixty acres, including all water rights belonging thereto, and
defendant and his family removed thereto and at all times thereafter up to the time of the trial
of this action resided thereon and now reside thereon, and during which period defendant had
every opportunity to investigate and ascertain the true status of the title to said forty acres of
land; that on January 7, 1934, the title to said forty acres of land was in the Realization
Company and was then and now is of the value of $120.
1. Insufficiency of the evidence to justify the decision of the court was one of the grounds
of defendant's motion for a new trial, and among the many assignments of error is one that the
findings are contrary to the evidence. The evidence is voluminous but we have reviewed it in
its entirety and are satisfied that there is substantial evidence in proof of all the findings that
are essential to support the judgment.
The issues of fraud were sharply controverted, as was defendant's knowledge of the status
of the title to the 40-acre tract contained in the deed to him from plaintiffs at the time and for
some time before the deed was made. The trial court accepted the testimony of plaintiffs as
true in those respects, and we are without jurisdiction to say that the court was mistaken in
giving to it that degree of credibility. We deem to unnecessary to set out the testimony,
especially as counsel for appellant has not, either in his briefs or oral argument, seriously
contended that the evidence is insufficient to support the findings or judgment. His main
reliance is on errors at law committed at the trial.
58 Nev. 404, 412 (1938) Judd v. Ball
2. The first error claimed is that the court adopted the wrong measure of damages in
insisting that only proof of the market value of the forty-acre tract at the time of the sale
would be admitted. It is insisted that the true measure of damages in the case was the value of
the forty acres of which defendant was dispossessed, in proportion to the value of the whole
acreage purchased. We are referred to Dalton v. Bowker, 8 Nev. 190; Hoffman v. Bosch, 18
Nev. 360, 4 P. 703; and Thomas v. Palmer, 49 Nev. 438, 248 P. 887, as declaring that rule.
We are of the opinion that the market value at the time of the sale was not the correct measure
of value to be applied in a case of this kind. On the contrary, the value at the time of the sale
of the property lost must be ascertained with reference to the purchase money and is, as
decided in Dalton v. Bowker, supra, in proportion to its relative value and importance when
taken in connection with the whole. This is the settled rule in this state where the property is
purchased for a gross sum without placing a specific value on each or any particular part.
Dalton v. Bowker, supra. The reasoning upon which the rule rests that the purchase money is
the proper basis for computation as to the value, is lucidly stated in the above opinion quoting
from Threlkeld's Adm'r v. Fitzhugh's Ex'x, 29 Va. 451, 2 Leigh 451, 461: When the land is
sold, the existing state of things, the present value and situation of the land, are the subjects in
the minds of the parties: it is this land as it now is, that is bought and sold and warranted. Is it
not most natural then to suppose that the parties mean that the purchase-money, the standard
of value to which they have both agreed in the sale, shall be the measure of compensation if
the land be lost? They seldom look into futurity to speculate upon the chances of a rise or fall
in value. If they did, the views of buyer and seller would probably be very different and,
whatever they might be, could form no part of the contract nor enter into its construction.
What is it that the seller warrants?
58 Nev. 404, 413 (1938) Judd v. Ball
it that the seller warrants? The land itself. Does this warranty either by force of its terms or by
the intention of the parties extend to any future value which the lands may reach?' We think
not.
The reasoning upon which the rule we sanction rests where there has been a failure of title
to part of a tract conveyed, and when a gross sum has been paid for the whole, is logically
stated in 4 Kent's Commentaries, 13 Ed. , p. 478, as follows:
If the eviction be only a part of the land purchased, the damages to be recovered under the
covenant of seisin are a ratable part of the original price; and they are to bear the same ratio to
the whole consideration that the value of the land, to which the title has failed, bears to the
value of the whole tract. * * *
The measure of compensation for a deficiency in the quantity of land, in the case of a sale
by the acre, unattended by special circumstances, has been assumed, in some cases, to be the
average and not the relative value. But in cases of eviction of a special part, justice evidently
requires that a relative, instead of the average value, be taken as the rule of computation; for
though the part lost may not be one tenth part of the quantity of land purchased, it may be
nine tenths of the value of the whole; or it may be one half part of the land sold, and yet it
may be the rocky or the barren part of the farm, and not one hundredth part of the value of the
remaining moiety.
Modern authority is also in conformity with this rule. In 66 C. J. 1597 the text reads:
Ordinarily, the measure of damages, where the title has failed to part of the tract conveyed,
is such proportion of the consideration as the value of that part of the land bears to the value
of the whole tract, together with interest on such proportion.
3, 4. The case at bar falls within the rule. There was no purchase of the 100 acres by acre
or different price for any specific part. A lump sum of $4,000 was agreed to be paid for the
whole.
58 Nev. 404, 414 (1938) Judd v. Ball
agreed to be paid for the whole. In Dalton v. Bowker, supra, the action was upon a convenant
of warranty, it is true, but this court has held that there is no distinction as to measure of
damages where action is based on breach of contract and on breach of warranty. Thomas v.
Palmer, supra. Notwithstanding the trial court fell into error as to the proper measure of
damages, we are of the opinion that it was error without prejudice. In the first place, counsel
for defendant undertook to prove the market value of the forty-acre tract. Failing in this no
offer to prove the relative value of the forty acres was made. He therefore cannot be heard to
say that he was deprived of a substantial right by the error of the court in insisting on the
market value. Moreover, the error was nonprejudicial for another reason. That defendant was
deceived or led to the belief by plaintiffs that they had title to the additional forty acres before
or at the time of the transfer, is negatived by the findings of the court. There was not even a
mutual mistake involved, which has been held a basis of damages. Cox v. Barton, Tex. Com.
App., 212 S. W. 652. Defendant, when he accepted the deed and for some time prior thereto,
was fully aware that plaintiffs had no title to the forty acres, but only a promise thereof. As
there was no fraud, which is the basis of defendant's claim for damages, there was no action
on the part of plaintiffs that can be said to be the natural and proximate cause of damages to
defendant. He lost nothing through their deception.
If, as defendant claims, the trial court was in error in preventing him from introducing
evidence as to the measure of damages other than the market value, how could he have been
injured? Under the view taken by the court on the basis of fraud, which, under the
circumstances, is binding on this court, defendant was not entitled to recover in any event. It
appears that the forty-acre tract of land was subsequently purchased by a third party from the
title holder for $120 and the trial court found such to be its value, and that defendant has
suffered damages to that extent by reason of the failure of the plaintiff to convey the
forty acres of land.
58 Nev. 404, 415 (1938) Judd v. Ball
trial court found such to be its value, and that defendant has suffered damages to that extent
by reason of the failure of the plaintiff to convey the forty acres of land. We think this should
not have been allowed, but defendant may not be heard to complain of such favorable finding.
True, the evidence shows that plaintiffs felt in some way morally bound to make reparation to
defendant to that extent, and endeavored to buy the land from the Realization Company for
that price so as to deed it to defendant, but were unable to do so; that they afterwards offered
defendant $120 and he would not receive it. However, plaintiffs were not legally bound for
the payment of damages in any amount. The trial court having found plaintiffs to be without
fraud, and that defendant accepted the deed with full knowledge of the facts, any damage he
may have suffered was damnum absque injuria. It may have been that the trial court was
influenced to find that the defendant suffered damages in the amount of $120 on account of
plaintiffs attitude in the matter evincing some moral responsibility and not because they were
legally bound. In the trial court's opinion, found in the record, it is said: The damages, if any,
that defendant sustained by not getting title to that forty acres of land would be $120.00 and
no more. And again, it is said: The only damages that defendant has sustained is the sum of
$120.00, and the testimony is rather questionable even upon that phase of it.
But, as we have previously stated, defendant's damages, if any, were without legal redress
and the adoption by the court of a wrong rule for the measure of damages is immaterial.
5. Of the many assignments of error, the only other one that counsel for defendant
discussed in his oral argument is assignment number 5, to the effect that it was error for the
court to refuse to allow certain well-qualified witnesses to testify as to the market value of the
forty acres of land. We have reviewed the record as to this assignment and find it to be
without merit.
58 Nev. 404, 416 (1938) Judd v. Ball
as to this assignment and find it to be without merit. Moreover, as we have seen, if error had
been committed in this regard, it could not have been of reversible character.
Counsel for defendant did not in his oral argument discuss any other assignments, but we
have reviewed them and find them to be without merit.
The judgment and order denying a new trial are affirmed.
Dec. 9, 1938.
Per Curiam:
Rehearing denied.
____________
58 Nev. 416, 416 (1938) Tobin v. Seaborn
W. J. TOBIN, as Receiver of The Reno National Bank, a National Bank Association,
Appellant, v. EDWARD J. SEABORN, as Receiver of The Security Savings & Loan
Association, A Corporation, Incorporated Under the Laws of the State of Nevada,
Respondent.
No. 3197
January 27, 1938. 75 P. (2d) 353.
Where the bill of exceptions, settled by stipulation, did not comply with the statute requiring bills of
exceptions to contain the relevant evidence or substance of the proceedings, the court could not pass on the
questions discussed, nor apply the rule invoked by plaintiff, that a bank, unless authorized by statute,
cannot pledge its assets to secure deposits of private funds; the answer alleging that the transaction was not
a deposit but a loan. Stats. 1937, c. 32, sec. 31.
Action by W. J. Tobin, as receiver of the Reno National Bank, a national bank association,
against Edward J. Seaborn, as receiver of the Security Savings & Loan Association, a Nevada
corporation, to recover certain securities pledged with defendant as security for moneys
delivered by defendant to the Reno National Bank.
certain securities pledged with defendant as security for moneys delivered by defendant to the
Reno National Bank. From a judgment of dismissal and an order denying a new trial, plaintiff
appeals. Affirmed.
N. J. Barry, for Appellant:
This appeal is from the judgment and from the order denying a motion for a new trial. The
appeal from the order denying a motion for a new trial may be disregarded; then the appeal
would be upon the findings. The findings set forth the making of the order of the court, the
making of the conveyance, and that the defendant did not have the possession of the
securities. As to the first two, no evidence could be introduced or could be used except the
fact of making the order and the conveyance. Those two findings bring us squarely within the
rule that both the order and the conveyance were void under the provisions of section 91, U.
S. C. A. As to the third, the possession was admitted in the verified second amended answer
of the defendant. It wouldn't make any difference how much evidence was introduced, the
court would have no right to find contrary to those admissions.
The stipulation in this case identifies the complaint, the second amended answer, the reply,
the findings and the judgment. It is all before the court, and there is nothing in the case except
the construction of a United States statute.
William McKnight, W. B. Ames and David Rosner, for Respondent:
As the stipulation purporting to settle the bill of exceptions affirmatively shows that it
does not contain any of the oral testimony and but fragmentary parts of the documentary
evidence referred to in the proceedings taken and had on the motions, this court is bound to
assume that the omitted documentary evidence and oral testimony justifies the findings of the
lower court, and affirm the judgment and order.
and affirm the judgment and order. State v. Bonds, 2 Nev. 265; Howard v. Winters, 3 Nev.
539; Sherwood v. Sissa, 5 Nev. 349; Caples v. Central Pac. R. R. Co., 6 Nev. 265; State v.
Parsons, 7 Nev. 57; Bowker v. Goodwin, 7 Nev. 135, 10 Morr. Min. Rep. 149; Libby v.
Dalton, 9 Nev. 23; Sherman v. Shaw, 9 Nev. 148; In re Winkleman, 9 Nev. 303; Terry v.
Berry, 13 Nev. 514; Gammans v. Russell, 14 Nev. 171; Greeley v. Holland, 14 Nev. 320;
Lonkey v. Wells, 16 Nev. 271; McLeod v. Lee, 17 Nev. 103, 28 P. 124; Mandlebaum v.
Liebes, 17 Nev. 131, 28 P. 1040; Thompson v. Reno Savings Bank, 19 Nev. 293, 9 P. 884;
County of White Pine v. Herrick, 19 Nev. 311, 10 P. 215; State v. Campbell, 20 Nev. 122, 17
P. 620; Quinn v. Quinn, 27 Nev. 156, 74 P. 5; Christensen v. Floriston Pulp and Paper Co.,
29 Nev. 552, 92 P. 210; Love v. Mt. Oddie United M. Co., 43 Nev. 61, 181 P. 133, 184 P.
921.
OPINION
In 1931 Edward J. Seaborn, as state bank examiner, commenced an action, No. 35851, in
the Second judicial district court, Washoe County, against the Security Savings & Loan
Association, was appointed and qualified as receiver of said association, and took possession
of its assets. On April 7, 1932, said receiver placed on deposit approximately $60,000 in
the Reno National Bank. As security, the bank pledged to the receiver bonds, debentures, and
securities in the aggregate amount of $67,000. At the same time the bank and the receiver
entered into the following written agreement:
Whereas, E. J. Seaborn, as receiver of the Security Savings and Loan Association, has
placed on deposit in The Reno National Bank approximately the sum of Sixty Thousand
Dollars ($60,000.00) in open account and subject to withdrawal by check, said deposit to
be carried in two accounts, one of which shall be as follows: 'Security Savings & Loan
Association, E. J. Seaborn, Receiver'; the other of said accounts to be as follows: "E. J.
Seaborn, Receiver, Trust Account'; and
and subject to withdrawal by check, said deposit to be carried in two accounts, one of which
shall be as follows: Security Savings & Loan Association, E. J. Seaborn, Receiver'; the other
of said accounts to be as follows: E. J. Seaborn, Receiver, Trust Account'; and
Whereas, the said E. J. Seaborn as a condition of opening said accounts and depositing
moneys with the said Reno National Bank has required that the said Reno National Bank
shall deposit with the said E. J. Seaborn, as receiver, bonds, securities and debentures in an
amount sufficient to adequately secure the full amount of the deposit;
Now, therefore, The Reno National Bank does hereby deposit and pledge with the said E.
J. Seaborn, as receiver, the bonds, debentures and securities which are listed on Schedule A,
which is attached hereto and made a part hereof.
The condition of such pledge and deposit of said bonds, securities and debentures is that
The Reno National Bank will faithfully account to the said E. J. Seaborn, as receiver, of the
Security Savings and Loan Association, for all moneys deposited by him in said accounts and
will pay, on legal demand, all moneys so deposited by himin said accounts and wil pay, on
legal demand, all moneys so deposited by him, as said receiver. It is specifically provided that
as said accounts may be increased that the said Reno National Bank, upon demand, will
deposit such additional securities as the said E. J. Seaborn, as receiver, may require and that
as said accounts may be decreased the said E. J. Seaborn shall release a proportionate amount
of the securities herein pledged, it being the intention of this instrument to pledge only such
amount of bonds as may be necessary to adequately secure the foregoing deposit by E. J.
Seaborn, as receiver.
A list of the pledged assets was appended to said agreement. In December 1932 the
comptroller of the currency found said bank to be insolvent, and in the same month
appellant was appointed and qualified as its receiver.
same month appellant was appointed and qualified as its receiver.
On February 2, 1934, at the request of appellant, the district court, in said action No.
35851, made and entered an order granting him leave to sue Receiver Seaborn in said district
court. Pursuant to the last-mentioned order, appellant, on February 5, 1934, commenced
action No. 45421 in said district court against Edward J. Seaborn, as receiver of the Security
Savings & Loan Association, a corporation incorporated under the laws of the State of
Nevada. The complaint alleged that the aforesaid pledge of securities made on April 7, 1932,
and the agreement entered into between the bank and Receiver Seaborn on the same date in
connection with said pledge, were wrongful and unlawful; that Receiver Seaborn was in
possession of the pledged securities; that prior to the commencement of the action, appellant
demanded of Receiver Seaborn that he deliver all of said securities to appellant, which
demand was refused; that at the time of the purported pledge, ever since that time and at the
time of the commencement of appellant's action, the pledged securities were the property and
assets of the Reno National Bank; and that appellant, at the time of the commencement of his
said action, was entitled to the possession of said securities as receiver of the Reno National
Bank. The prayer of the complaint is for the return to appellant of said securities, for costs of
suit, and for such other and further relief as to the Court may seem meet and proper in the
premises.
In his second amended answer to the complaint in said action No. 45421, respondent
denied that the pledge and agreement of April 7, 1932, were, or that either of them was,
wrongful or unlawful. He admitted that ever since the pledging of the securities he had been,
and that at the time of filing his second amended answer still was, in possession of them. As a
further separate and affirmative defense, respondent alleged in substance that on April 7,
1932, and for several months prior thereto, the bank was in need of funds and was
borrowing money, discounting its paper and assets, and hypothecating and pledging the
same for the purpose of augmenting its funds from which to meet the money demands
made upon it by its depositors and borrowers; that the bank, knowing that Receiver
Seaborn had in his possession and subject to his control large sums of money, which
would continue to accumulate and in the ordinary course of events lie idle except for such
small sums as might be needed for administration purposes, invited and solicited him as
receiver to place said moneys on deposit with the bank until such time as he should find it
necessary to disburse the same in the course of said Security Savings & Loan Association
receivership; that respondent advised the bank that he did not need or require "the
facilities of said bank or an ordinary or general deposit account therein," that he would
not deposit his receivership funds in the bank without adequate security, that they must
also draw interest at the rate of 2 percent of 60 percent of the average daily balance, and
that such funds, if deposited with the bank, must with such interest be available to him as
and when needed for distribution to the beneficiaries of said receivership; that the bank,
being in urgent and pressing need of money and under the necessity of borrowing money
with which to meet its deposit and loan obligations, agreed to respondent's said
requirements, and thereupon entered with him into said written agreement of April 7,
1932, and in pursuance thereof "did hypothecate, pledge and deliver" to respondent the
bonds and securities listed in said agreement, and at the same time promised to pay
respondent, on demand, all moneys delivered by him to the bank with said agreed rate of
interest, and that in the event said money and interest should not be repaid on demand
the respondent might sell and dispose of said securities, and after deducting the amount
of money due him, together with
on April 7, 1932, and for several months prior thereto, the bank was in need of funds and was
borrowing money, discounting its paper and assets, and hypothecating and pledging the same
for the purpose of augmenting its funds from which to meet the money demands made upon it
by its depositors and borrowers; that the bank, knowing that Receiver Seaborn had in his
possession and subject to his control large sums of money, which would continue to
accumulate and in the ordinary course of events lie idle except for such small sums as might
be needed for administration purposes, invited and solicited him as receiver to place said
moneys on deposit with the bank until such time as he should find it necessary to disburse the
same in the course of said Security Savings & Loan Association receivership; that respondent
advised the bank that he did not need or require the facilities of said bank or an ordinary or
general deposit account therein, that he would not deposit his receivership funds in the bank
without adequate security, that they must also draw interest at the rate of 2 percent of 60
percent of the average daily balance, and that such funds, if deposited with the bank, must
with such interest be available to him as and when needed for distribution to the beneficiaries
of said receivership; that the bank, being in urgent and pressing need of money and under the
necessity of borrowing money with which to meet its deposit and loan obligations, agreed to
respondent's said requirements, and thereupon entered with him into said written agreement
of April 7, 1932, and in pursuance thereof did hypothecate, pledge and deliver to
respondent the bonds and securities listed in said agreement, and at the same time promised
to pay respondent, on demand, all moneys delivered by him to the bank with said agreed rate
of interest, and that in the event said money and interest should not be repaid on demand the
respondent might sell and dispose of said securities, and after deducting the amount of money
due him, together with interest, return the balance of the bonds and securities, if any, to
the bank; that at the suggestion and solicitation of the bank it was agreed that, in order
to facilitate the transaction so that the money might not be held in reserve by respondent
and to make the transaction sufficiently flexible as to include money which would
thereafter accumulate in respondent's hands, "the money so advanced and loaned, or to
be thereafter advanced or loaned, by Edward J.
money due him, together with interest, return the balance of the bonds and securities, if any,
to the bank; that at the suggestion and solicitation of the bank it was agreed that, in order to
facilitate the transaction so that the money might not be held in reserve by respondent and to
make the transaction sufficiently flexible as to include money which would thereafter
accumulate in respondent's hands, the money so advanced and loaned, or to be thereafter
advanced or loaned, by Edward J. Seaborn, as such receiver, to said bank, should be subject
to call and payable on demand, and, although in fact a loan, should be in the form of a
deposit, subject to check; that thereafter respondent made demand upon the bank and
appellant for the repayment to him of all sums of money so advanced and loaned to said bank
under and by virtue of said pledge, but that the bank and appellant had refused and still
refused to pay the same or any part thereof. In that part of appellant's reply which is addressed
to the foregoing allegations in respondent's said further and separate affirmative defense,
appellant pleaded that he had not sufficient knowledge or information upon which to base a
belief.
Respondent, by way a second separate affirmative defense in his second amended answer
to appellant's complaint in action No. 45421, alleged in substance, inter alia, that in response
to a petition filed by respondent on April 1, 1933, in said case No. 35851, praying for an
order to allow claims, to give due and legal notice to all creditors of the Security Savings &
Loan Association, to give due and legal notice in a daily newspaper in Reno, Nevada, for an
order allowing the time for claims to be filed, and after the giving of such notice by
publishing same in a Reno daily newspaper, a hearing was had in the last week of April 1933,
in said district court, for the purpose of allowing claims to all creditors having filed claims
with the receiver, and findings of fact were entered therein, that distribution be made for the
benefit of all creditors having filed claims; that no claim was filed with respondent by
appellant or with said district court, although appellant had had due and legal notice of
the time in which to file his alleged claim; that, as a result of said district court orders
entered in the last week of April 1933, appellant has been estopped from filing any claims
and from filing any suits, and that appellant is estopped from now claiming said pledged
securities and from filing any claim whatsoever; that appellant failed to file any claim
whatever until on or about the 2d day of February 1934, which was about ten months
after due and legal notice had been given to file such claim, and that by reason of his
failure to file any claim before said last-mentioned date, appellant, by his own laches, is
estopped from filing any claim or cause of action whatsoever against respondent; that
appellant has failed to offer to return and restore the moneys belonging to respondent,
approximately in the sum of $43,000, for the relief of said pledged securities.
be made for the benefit of all creditors having filed claims; that no claim was filed with
respondent by appellant or with said district court, although appellant had had due and legal
notice of the time in which to file his alleged claim; that, as a result of said district court
orders entered in the last week of April 1933, appellant has been estopped from filing any
claims and from filing any suits, and that appellant is estopped from now claiming said
pledged securities and from filing any claim whatsoever; that appellant failed to file any claim
whatever until on or about the 2d day of February 1934, which was about ten months after
due and legal notice had been given to file such claim, and that by reason of his failure to file
any claim before said last-mentioned date, appellant, by his own laches, is estopped from
filing any claim or cause of action whatsoever against respondent; that appellant has failed to
offer to return and restore the moneys belonging to respondent, approximately in the sum of
$43,000, for the relief of said pledged securities.
In that part of appellant's reply which was addressed to respondent's said second and
further separate affirmative defense, appellant denied that he had any notice of the time in
which to file said alleged claim, and denied that he failed to file any claim whatever until on
or about the 2d day of February 1934. As a further defense to the matters alleged in
respondent's second and further separate affirmative defense, appellant (plaintiff in the district
court) alleged in his reply as follows: I. That at the time the agreement referred to in the
complaint was entered into, the securities therein mentioned were deposited in a safety
deposit box in The Reno National Bank, the key to which was given to E. J. Seaborn, and
another key held by said The Reno National Bank, and that plaintiff, as Receiver of The Reno
National Bank, came into the possession of said key held by said bank, and that neither the
said E. J. Seaborn nor W. J. Tobin, since the appointment of W. J. Tobin, as Receiver of said
The Reno National Bank, could secure access to said safety deposit box or the contents
thereof without the joint act of both said E. J. Seaborn and said W. J. Tobin; that said
securities, except such as have been converted into cash by the joint act of said E. J.
Seaborn and said W. J. Tobin, are now and ever since their deposit therein, have been in
said safety deposit box; that certain of said securities have been converted into cash by
the said E. J. Seaborn and said W. J. Tobin, and said cash deposited in said safety deposit
box. II. That as far as plaintiff is able to ascertain from an examination of the records in
the case of Edward J.
of W. J. Tobin, as Receiver of said The Reno National Bank, could secure access to said
safety deposit box or the contents thereof without the joint act of both said E. J. Seaborn and
said W. J. Tobin; that said securities, except such as have been converted into cash by the
joint act of said E. J. Seaborn and said W. J. Tobin, are now and ever since their deposit
therein, have been in said safety deposit box; that certain of said securities have been
converted into cash by the said E. J. Seaborn and said W. J. Tobin, and said cash deposited in
said safety deposit box. II. That as far as plaintiff is able to ascertain from an examination of
the records in the case of Edward J. Seaborn, as State Bank Examiner of the State of Nevada,
Plaintiff v. The Security Savings & Loan Association, a corporation incorporated under the
laws of the State of Nevada, in the above entitled Court, No. 35851, said securities were
never listed as the assets of said Security Savings & Loan Association, and were never in the
possession of said E. J. Seaborn, as Receiver of said Security Savgins & Loan Association,
except as herein stated. III. Plaintiff further alleges that no order was ever made in the matter
of the receivership of said Security Savings & Loan Association relative to said securities,
except that an order was made by the Judge of the above entitled Court authorizing said E. J.
Seaborn, as such Receiver, to sell such securities at public sale in the banking house of The
Reno National Bank, at Reno, Nevada, on the 19th day of April, 1933, but that no such sale
was ever made. IV. Plaintiff further alleges that on or about the 31st day of January, 1934,
there was a conference held with Honorable B. F. Curler, Judge of the above entitled Court,
Mr. Rosner, Mr. McKnight and Mr. Diskin with reference to said securities so held by
defendant, and thereupon said Judge B. F. Curler stated that he would give permission to W. .
Tobin, as Receiver of The Reno National Bank, to sue said E. J. Seaborn, as Receiver of
Security Savings & Loan Association, in the state court to settle the title to said securities if
the same were done within the next few days; that immediately thereafter, plaintiff filed
a petition with said Court asking permission to sue and that said permission was granted
by said Court and this action was immediately brought. V. Plaintiff further alleges that
said securities were never treated or regarded, at any time during any proceedings in the
matter of the receivership of said Security Savings & Loan Association, as the property of
said Receiver, but that their ownership was always regarded as a question of law to be
determined in Court. VI. Plaintiff further alleges that said securities were never the
property of said Security Savings & Loan Association, and that plaintiff was never at any
time a creditor of said Security Savings & Loan Association, and never held any claim
against said Receivership requiring presentation thereof."
to settle the title to said securities if the same were done within the next few days; that
immediately thereafter, plaintiff filed a petition with said Court asking permission to sue and
that said permission was granted by said Court and this action was immediately brought. V.
Plaintiff further alleges that said securities were never treated or regarded, at any time during
any proceedings in the matter of the receivership of said Security Savings & Loan
Association, as the property of said Receiver, but that their ownership was always regarded as
a question of law to be determined in Court. VI. Plaintiff further alleges that said securities
were never the property of said Security Savings & Loan Association, and that plaintiff was
never at any time a creditor of said Security Savings & Loan Association, and never held any
claim against said Receivership requiring presentation thereof.
In August 1935 respondent noticed two motions, one in said district court action No.
35851, the other in said district court action No. 45421, each motion being for two orders;
first, an order vacating and setting aside the said order of February 2, 1934, granting leave to
appellant to sue respondent, and second, an order dismissing said action No. 45421. The
grounds upon which the motions were based were stated at length in the moving papers. The
motions were heard together by stipulation on October 15, 1935, and upon the hearing all of
the records and files in said cases No. 35851 and 45421 were offered and received in
evidence, and oral testimony was given by Attorney William McKnight. The records and files
in said action No. 35851 so received in evidence included an Order Allowing Claims,
Classifying and Grouping Creditors, Determining Assets Applicable to Each Group, Ordering
the Sale of Assets to Certain Groups, Ordering Receiver to Convey Nevada Assets to a
Corporation for Certain Creditors, and Ordering the Incorporation of a Company to Take over
Said Assets, made, entered and filed by District Judge B. F. Curler on May 6, 1933, after a
due and regular trial held on the 26th, 27th, 2Sth of April, 1933."
B. F. Curler on May 6, 1933, after a due and regular trial held on the 26th, 27th, 28th of
April, 1933. In said order the district court found as facts and made orders, in part, as
follows: I find that the total cash in the hands of the Nevada receiver is the sum of
$63,739.35, and that the amount of cash actually in the hands of said receiver is the sum of
$4,824.75; that there is deposited in the Reno National Bank to the credit of said receiver the
sum of $43,180.07; that said bank has closed its doors and is now in the hands of a receiver
appointed by the Comptroller of the Currency of the United States. I further find that as a
condition for making said deposit in said bank the officers of said bank entered into a written
contract with said receiver wherein and whereby they pledged with said receiver to secure
said deposits and said securities were thereafter delivered to the receiver and placed in a
safety deposit box in said bank, the key to which was held by said receiver, the following
securities: (listing them) * * * I further find that the said contract of deposit and the securities
pledged should be assigned, transferred and set over to the corporation hereafter described in
trust for the use and benefit of the investment certificate holders, and if and when said deposit
or any part thereof is collected that payment should then be made of the whole or part or
percentage due to the investment certificate holders in Colorado and Wyoming. * * * I
further find that no distribution in cash can be made as contemplated by this order until such
time as the money on deposit in the Reno National Bank and the United Nevada Bank is
recovered. * * * It is further ordered that a corporation be formed under the laws of the State
of Nevada to be designated and called Security Realization Company for the purpose of
having assigned to it the assets of the corporation distributed in the payment of claims
allowed to the Nevada group. * * * It is further ordered that the money now on deposit in the
Reno National Bank and any and all securities pledged with the receiver to secure said
deposit, be and the receiver is hereby ordered and directed to assign the same and the
whole thereof to Security Realization Company.
National Bank and any and all securities pledged with the receiver to secure said deposit, be
and the receiver is hereby ordered and directed to assign the same and the whole thereof to
Security Realization Company. * * * It is further ordered that until the sums of money
deposited in said banks have been recovered, no cash distribution can be made, and for the
purpose of collecting said deposits and the money covered thereby, the said Security
Realization Company is hereby directed to take such steps and make such demands in law
and equity and file such suits as may be necessary to recover said deposits. * * *
On September 18, 1936, the district court granted the aforesaid motions, vacating the order
of February 2, 1934, in action No. 35851 granting leave to appellant to sue respondent, and
dismissing action No. 45421. The court held that the order of February 2, 1934, granting
leave to sue, had been improvidently made. The reasons given for this holding accord with
the grounds stated in respondent's motions, and are in substance that prior to the entering of
the order granting leave to sue, the same district court had on May 6, 1933, ordered
respondent to assign and transfer the money then on deposit in the Reno National Bank,
together with the said written contract of April 7, 1932, and the securities pledged on said
last-mentioned day, to Security Realization Company, which was thereafter formed under
order of said district court on May 23, 1933; that said assignment was made on August 17,
1933; that Security Realization Company, since the date of recording of said assignment, to
wit, August 19, 1933, had been and still was the owner, in possession, and entitled to the
possession of all of the property sought to be recovered by appellant in said action No. 45421;
that respondent did not have any title, possession, or right of possession to any of said
property when said action No. 45421 was commenced, or on February 2, 1934, when the
order granting leave to appellant to sue respondent for the recovery of said property was
made and granted by the court, nor had respondent since the commencement of said
action No.
sue respondent for the recovery of said property was made and granted by the court, nor had
respondent since the commencement of said action No. 45421 acquired any title, possession,
or right of possession in or to any of said property.
The reasons assigned by the district court for dismissing said action No. 45421 were, first,
that it had theretofore and on September 16, 1936, granted respondent's motion in action No.
35851 to vacate and set aside the order of February 2, 1934, granting appellant leave to sue
respondent; and second, that respondent had theretofore transferred and set over to Security
Realization Company all of his right, title and possession in the subject-matter of said action
No. 45421, which assignment and transfer were made long prior to the order of February 2,
1934, granting leave to appellant to sue respondent.
The appeal in the instant case is from the judgment of the district court dismissing said
action No. 45421, and from the order of said court denying a new trial.
Appellant bases his appeal chiefly upon the following contentions: First, that the pledge
and agreement of April 7, 1932, were ultra vires and void; that the receiver of a national bank
is not estopped to deny the validity of an illegal pledge by his bank; and that the receiver may
assert the invalidity of the pledge without making restitution by paying the pledgee's claim in
fullthe parties not being in pari delicto so far as the receiver is concerned. Second, that
appellant had the right to sue without leave of court, because respondent had no title to the
securities of which he took possession; and that the objection of want of leave to sue is not
jurisdictional and was waived by respondent's answering without raising that point. Third, the
securities pledged have always remained the property of the Reno National Bank and
appellant is now entitled to their possession. Fourth, appellant having come into the
possession of the assets of the insolvent bank in December 1932, the state district court was
without power or authority to adjudge or order any assignment, transfer, or sale of said
pledged securities.
or authority to adjudge or order any assignment, transfer, or sale of said pledged securities.
Respondent's main contention in support of the district court's action are: First, that
appellant is out of court because he asserted no claim to the pledged assets until February 2,
1934. Second, that the question whether the transactions of April 7, 1932, were ultra vires has
not been properly presented on this appeal, because whether those transactions constituted a
deposit or a loan is largely a question of fact, and the bill of exceptions fails to show that it
contains the evidence or the substance of the evidence relating to this point, necessary to
explain the alleged error relied upon as a ground of appeal. Third, that if it be conceded that
the executory agreement of April 7, 1932, was originally ultra vires, it afterwards became
valid as an executed agreement by virtue of the assignment and transfer of the pledged
securities to respondent. Fourth, that appellant's action in the district court was for the
recovery of the pledged securitiesan action which could not be maintained because
defendant was not at that time, and for a long time had not been, in possession of said
securities.
The respective parties stipulated that the appeal in case No. 3196 [58 Nev. 432, 75 P. (2d)
359 (district court action No. 35851)] might be heard by this court on the same Bill of
Exceptions, Transcript on Appeal and written points and authorities used and oral argument
made in the appeal in the instant case, No. 3197 (district court action No. 45421).
The bill of exceptions was not settled by the trial judge, but by stipulation of the parties.
This stipulation, after stating that copies of certain specified pleadings, files, papers, and
records in said district court actions 35851 and 45421 set forth in the bill of exceptions are
true and correct, proceeds and concludes as follows:
It is further stipulated that the above and foregoing contains true and correct statement of
the proceedings taken and had on the motion to vacate and set aside the order made in
case No.
taken and had on the motion to vacate and set aside the order made in case No. 35851
granting leave to sue the receiver and on the motion to dismiss action No. 45421, exclusive
of the oral testimony and documentary evidence therein referred to.
It is further stipulated that the above and foregoing is hereby settled as a bill of exceptions
in the above entitled action.
The foundation of this appeal is appellant's contention that the pledge of the bank's assets
to secure respondent's deposit was ultra vires and utterly void. Upon this postulate appellant
further reasons that the pledged assets remained, and still remain, the property of the bank;
that they were taken over by him upon his qualification as receiver in December 1932, and so,
along with all the other assets of the insolvent bank, became frozen from that time until
liquidation; and that consequently the state district court was thereafter wholly without power
to order them assigned to the receiver of the Security Realization Company.
If it be conceded that by the great weight of authority the rule of law is that a bank, unless
specially authorized by statute, has no legal authority to pledge any of its assets to secure
deposits of private funds, that rule can be properly applied only where it is admitted, or the
evidence shows, that the funds placed in the bank were a deposit, not a loan. In this case the
respondent, in his second amended answer, not only alleges that the transaction, though
designated as a deposit, was in reality a loan, but details the alleged facts and circumstances
showing, as he contends, that it was a loan. It does not appear from the record before us that it
contains all, or substantially all, of the evidence relating to the aforesaid issue. The stipulation
purporting to settle the bill of exceptions affirmatively shows that it does not contain the oral
testimony and documentary evidence referred to in the proceedings taken and had on the
motions.
Our statute permits the settlement of bills of exceptions by stipulation as well as by the
trial judge; but in either case it is required that there be attached to or inserted in such bill of
exceptions a certificate or stipulation, as the case may be, to the effect, among other things,
that the bill contains the substance of the proceedings relating to the point or points involved.
Section 31, New Trials and Appeals Act, Statutes of Nevada, 1937, c. 32, p. 63. Subdivision
(c) of subsection 2 in said section 31, Stats. of Nevada 1937, p. 64, provides in part, that
when a statement of the case is incorporated in the bill of exceptions it must contain so much
of the evidence as may be necessary to explain the particular errors or grounds upon which
the party intends to reply upon the appeal. The bill of exceptions in the record before us
contains no certificate or stipulation complying, in substance or at all, with either of these
statutory provisions. Capurro v. Christensen, 46 Nev. 249, 209 P. 1045; Shirk v. Palmer, 48
Nev. 449, 451, 232 P. 1083, 236 P. 678, 239 P. 1000.
We have carefully studied the record on appeal, and considered the many questions
discussed in briefs and oral arguments; but as the bill of exceptions was not settled in
accordance with the mandatory provisions of the statute, and because we have not before us
the evidence necessary to enable us to determine whether error was committed by the district
court, we shall not pass on the other questions discussed by respective counsel.
____________
W. J. TOBIN, as Receiver of The Reno National Bank, a National Bank Association,
Appellant, v. EDWARD J. SEABORN, As Receiver of The Security Savings & Loan
Association, a Corporation Incorporated Under the Laws of the State of Nevada,
Respondent.
No. 3196
January 27, 1938. 75 P. (2d) 359.
Appeal from judgment revoking permission to sue, and from order denying a new trial.
Affirmed.
N. J. Barry, for Appellant.
William McKnight, W. B. Ames and David Rosner, for Respondent.
OPINION
This appeal is from a judgment of the Second Judicial District Court, Washoe County, in
civil action No. 35851, revoking leave given appellant to sue respondent, and from an order
denying appellant's motion for a new trial.
For the reasons given in the opinion in case No. 3197 (58 Nev. 416, 75 P. (2d) 353),
decided this 27th day of January 1938, the judgment and order appealed from are affirmed.
April 18, 1938.
Per Curiam:
Rehearing granted.
On Rehearing
September 20, 1938. 82 P. (2d) 746.
1. Pledges.
When pledgor defaults, property in thing pledged does not remain exclusively in pledgor.
Generally, in absence of fraud or preferential transfer in contemplation of insolvency, pledge of
bank's assets as security for loan to bank will not be avoided where security was given and taken in good
faith. 12 U. S. C. A. sec. 91.
On appeal, it is the duty of the complaining party to show from record that prejudicial error was
committed in court below.
Where on appeal from judgment dismissing national bank receiver's action against receiver of state
savings association for value of alleged assets of bank pledged to association receiver and transferred by
him under district court's order, bill of exceptions, settled by stipulation, did not contain record of
evidence pertaining to transactions relating to pledge of assets and their subsequent transfer, or statement
that record contained so much of evidence as was necessary to explain alleged errors, court could not
consider questions whether assets were pledged as security for a loan or deposit, or whether bank was
owner of assets at time of transfer and whether, therefore, transfer was void. 12 U. S. C. A. sec. 91.
On rehearing. Former opinion affirming judgment below affirmed.
N. J. Barry, for Appellant.
William McKnight, W. B. Ames and David Rosner, for Respondent.
OPINION
Appellant points out that he appealed, not only from the order of the district court denying
his motion for a new trial, but also from the judgment, and contends that even if the
appeal from the order denying the motion for new trial be disregarded, the record
requires a reversal of the judgment. "The stipulation in this case," says counsel,
"identifies the complaint, the second amended answer, the reply, the findings, and the
judgment.
new trial, but also from the judgment, and contends that even if the appeal from the order
denying the motion for new trial be disregarded, the record requires a reversal of the
judgment. The stipulation in this case, says counsel, identifies the complaint, the second
amended answer, the reply, the findings, and the judgment. It is all before the court and there
is nothing in the case except the construction of a United States statute * * *.
In his supplemental brief on rehearing, appellant states that respondent's motion in the
district court was based upon three grounds: (1) That the Court in case No. 35851 had made
an order directing the formation of a new corporation and directed the defendant herein to
convey the assets in dispute to himself as receiver of the new corporation. (2) That the
defendant in this action had executed the conveyance. (3) That the defendant did not have
possession of the property. This statement is incomplete and incorrect because respondent in
setting forth the grounds upon which said motion was based, included the following: 4.
Because the Security Realization Company, a Nevada corporation, ever since the 19th day of
August, 1933, has been, and now is, the owner, in possession, and entitled to the possession
of all the right, title and interest in the personal property sought to be recovered in said action
numbered 45421, previously owned or possessed by the Receiver of the Security Savings &
Loan Association, a corporation. 5. Because the said Edward J. Seaborn, as Receiver of the
Security Savings and Loan Association, a corporation, did not have any title, possession, or
right of possession, to any of the bonds or personal property set forth and described in the
complaint in said action numbered 45421, in the above entitled Court, when said action was
commenced or when the order granting leave to sue him for the recovery of said bonds and
personal property, now sought to be vacated and set aside, was made and granted by the
Court, not has he since the commencement of said action numbered 45421 acquired any
title, possession or right of possession in or to any of the bonds or personal property set
forth and described in said action."
granted by the Court, not has he since the commencement of said action numbered 45421
acquired any title, possession or right of possession in or to any of the bonds or personal
property set forth and described in said action.
1, 2. If it be conceded that appellant is correct in his contention that respondent admitted,
in his second amended answer in district court action No. 45421, that he was in possession of
the disputed assets, it does not follow that he admitted, in said answer or otherwise, that
appellant was the owner or entitled to the possession of said securities. Appellant's allegation,
in his complaint in said action No. 45421, that said securities were at all times the property
and assets of the Reno National Bank was specifically denied by respondent in his said
answer. Respondent further alleged that the money placed in the bank in April 1932, was in
reality a loan, and appellant has at no time alleged or claimed that he or the bank accounted to
respondent for the money placed in the bank in April 1932, and admits that said money has
not all been paid, though legal demand was made for such payment pursuant to the pledge
agreement. When a pledgor defaults, the property in the thing pledged does not remain
exclusively in the pledgor. Winnemucca State Bank & Trust Co. v. J. D. Corbeil, 42 Nev.
378, 178 P. 23; 49 C. J. 922, 923. The securities were pledged nearly eight months before the
bank was declared insolvent. It is generally held, in the absence of fraud or preferential
transfer in contemplation of insolvency, that the pledge of a bank's assets as security for a
loan to the bank will not be avoided where the security was given and taken in good faith. 9
C. J. S., Banks and Banking, secs. 170, 171 pages 364, 365; 12 U. S. C. A. sec. 91, note 39, p.
300. And see Organ v. Winnemucca State Bank & Trust Co., 55 Nev. 72, 26 P. (2d) 237.
Appellant contends that the pledge agreement of April 7, 1932, conclusively shows that the
$60,000 placed in the bank at that time was a deposit, and could not legally be considered
a loan.
at that time was a deposit, and could not legally be considered a loan. The record, however,
does not show that a general demurrer was filed to respondent's first affirmative defense,
which alleged that said money was really a loan.
The record on appeal shows that at the hearing of respondent's motion in the district court,
documentary evidence and oral testimony were received in evidence and the court in granting
the motion, gave as one of the grounds for such action that the disputed securities had been
the property of Security Realization Company ever since August 1933. This is at variance
with appellant's contention that the property in these securities has at all times remained in the
bank.
It is true that appellant was not a party to district court action No. 35851 when the order
was made directing the transfer of the securities to the newly-formed Security Realization
Company; but his application for leave to sue was made in that action, and he was the party
plaintiff in case No. 45421. Notice of respondent's motion to revoke appellant's leave to sue
and to dismiss action No. 45421 was served on appellant, and he was thus given the
opportunity, on the hearing of respondent's said motion, to show, if he could, that the order
directing the transfer of the securities to Security Realization Company was void under the
provisions of 12 U. S. C. A., sec. 91, Banks and Banking, which reads as follows: All
transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any
national banking association, or of deposits to its credit; all assignments of mortgages,
sureties on real estate or judgments or decrees in its favor; all deposits of money, bullion, or
other valuable thing for its use, or for the use of any of its shareholders or creditors; and all
payments of money to either, made after the commission of an act of insolvency, or in
contemplation thereof, made with a view to prevent the application of its assets in the
manner prescribed by this chapter, or with a view to the preference of one creditor to
another, except in payment of its circulating notes, shall be utterly null and void; and no
attachment, injunction or execution shall be issued against such association or its
property before final judgment in any suit, action, or proceeding, in any State, county, or
municipal court."
its assets in the manner prescribed by this chapter, or with a view to the preference of one
creditor to another, except in payment of its circulating notes, shall be utterly null and void;
and no attachment, injunction or execution shall be issued against such association or its
property before final judgment in any suit, action, or proceeding, in any State, county, or
municipal court. Whether this opportunity was taken advantage of, and, if so, just what took
place in relation thereto on the hearing of the motion, this court cannot know, because there is
not, anywhere in the record on appeal, any certificate or stipulation showing that the record
contains the substance of the proceedings relating to the point or points involved, or that it
contains so much of the evidence as may be necessary to explain the alleged errors relied on.
The judgment roll alone does not show that the pledge of the securities in April 1932, was
void, not does it show that the district court order of May 1933, or the transfer of the
securities to Security Realization Company made pursuant thereto, contravened the
provisions of said section 91. Before we could set aside a transfer of the assets of the bank
under the provisions of 12 U. S. C. A., sec. 91, it would have to appear that such assets, at the
time of the transfer, were owned by the bankwere its property. But according to the record
as it has come before us, it is a disputed question whether the securities were the property of
the bank, either in December 1932, when the bank was adjudged insolvent, or in 1933, when
the court order and transfer pursuant thereto were made.
3, 4. On appeal it is the duty of the complaining party to show from the record that
prejudicial error was committed in the court below. 4 C. J. S., Appeal and Error, sec. 709,
page 1183. In this case it has not been made to appear from the pleadings, findings, and
judgment that reversible error was committed by the court below, either in granting the
motion to revoke appellant's leave to sue in action No.
court below, either in granting the motion to revoke appellant's leave to sue in action No.
35851, or in dismissing action No. 45421.
____________
58 Nev. 438, 438 (1938) Culverwell v. Ross
CHARLES CULVERWELL, Petitioner, v. SARAH GENTRY ROSS, Clerk of the County of
Lincoln, State of Nevada, Respondent.
No. 3248
September 21, 1938. 82 P. (2d) 1076.
1. Elections.
Where original statute required county clerks to keep their offices open on Saturday afternoons, and
amendment thereto required that such offices be kept open only until noon on Saturdays with the proviso
that nothing in the amendment should interfere with the then existing duties of any public officer under the
election laws, a county clerk was obligated to accept a declaration of candidacy which was offered for
filing on a Saturday afternoon when the last day within which declarations might be filed fell on that
Saturday, as required by provisions in the primary election law in force at time when amendment was
enacted imposing duty on county clerks of receiving and filing declarations which were offered for filing
during regular office hours not less than 30 days prior to the primary election. Stats. 1907, c. 178; Comp.
Laws, secs. 2045, 2408, 2409.
Original mandamus proceedings by Charles Culverwell, petitioner, against Sarah Gentry
Ross, clerk of the county of Lincoln, to compel the defendant to place the name of petitioner
on the official primary election ballot for nomination, by the democratic party, as a candidate
for the office of sheriff of Lincoln County. Order in accordance with opinion. (Taber, J.,
dissenting.)
J. A. Sanders, for Petitioner:
The rule is well settled that in construing statutes prescribing a time for the performance of
acts by public officers and in the performance of which the public has an interest, if the
statute itself does not prohibit the doing of such acts after the expiration of the time
fixed, the act is deemed valid if performed afterwards.
public officers and in the performance of which the public has an interest, if the statute itself
does not prohibit the doing of such acts after the expiration of the time fixed, the act is
deemed valid if performed afterwards. In this instance, the statute itself does not prohibit the
clerk from filing declarations of candidacy for a public office under the primary election law.
But the strongest point in support of the petition is that the statute itself expressly provides
that nothing in this act shall be construed so as to interfere with any duty now required of
any public official under any of the elections laws of this state. The legislature not having
limited the time to twelve o'clock noon, if Saturday be the last day for filing, and having
inserted the above proviso in the office hours law, it cannot be argued that it intended to close
the doors of the county clerk's office in matters respecting and protecting the rights of
candidates and electors under the primary election law. State v. Brodigan, 37 Nev. 458, 142
P. 520; Brid v. Beggs (Kans.), 227 P. 529.
Jo G. Martin, District Attorney; Gray Mashburn, Attorney-General; W. T. Mathews and
Alan Bible, Deputy Attorneys-General, for Respondent:
We think the conclusion is inescapable that when the legislature said that declarations of
candidacy shall be filed during regular office hours, whatever hour marked the ending of the
office-hour period of the county clerk's office on the last day such filings could be made
constituted the dead-line, and that after such hour no such filings could be legally made.
The duty of the county clerk is plain under the primary election law; i.e., to file the
declarations of candidacy during the hours of the day that such office is to remain open as
fixed in the office hours act. The proviso in section 2045 N. C. L. does not qualify or modify
section 2409. Both sections, even when construed in pari materia, must be allowed to stand,
and effect given to both.
effect given to both. Ex Parte Ah Pay, 34 Nev. 283, 119 P. 770; Presson v. Presson, 38 Nev.
203, 147 P. 1081; State v. Esser, 35 Nev. 429, 129 P. 557.
OPINION
By the Court, Dysart, District Judge:
This is an original proceeding for a writ of mandate to compel the respondent, Sara Gentry
Ross, as county clerk of the county of Lincoln, State of Nevada, to place the name of
petitioner, Charles Culverwell, upon the official primary election ballot for nomination, by
the democratic party, as a candidate for the office of sheriff of said Lincoln County, to be
voted for at the primary election to be held September 6, 1938.
Respondent in justification of her actions in refusing to accept petitioner's declaration of
candidacy and her refusal to place petitioner's name on said primary election ballot, alleges in
substance: That petitioner offered such declaration for filing on Saturday afternoon of
August 6, 1938, the last day allowed by law for filing the same; and that the statute fixing the
regular office hours of the various county clerks of the State of Nevada, namely, sec. 2045 N.
C. L., provides that her office be kept open only from 9 o'clock a.m. to 12 o'clock noon, on
Saturdays; that sec. 2408 N. C. L. provides that such declaration must be filed not less than
thirty days prior to the primary election; and that sec. 2409 N. C. L. Provides that such
declaration shall be filed during regular office hours. The sole question to be determined in
this proceeding is: Was the respondent, as such county clerk, required by law to accept for
filing, on Saturday afternoon, the declaration of candidacy of petitioner and place his name on
the official primary election ballot as a candidate for nomination by the democratic party
when such last day for filing such nomination falls on Saturday?
for filing such nomination falls on Saturday? The petition alleges, and the answer admits, the
facts to be substantially as follows: That the petitioner is a qualified elector of the county of
Lincoln, State of Nevada; that petitioner is a member of the democratic party; that on
Saturday, the 6th day of August 1938, at the hour of 3:25 p.m. of said day he delivered to
respondent, as such county clerk, his declaration of candidacy together with the necessary
filing fee of $40 for the purpose of having his name placed upon the official primary ballot as
a candidate for nomination by the democratic party for the office of sheriff of said Lincoln
County at the primary election to be held on September 6, 1938; that said 6th day of August
was Saturday and the last day for filing declarations of candidacy and that respondent refused
to place the name of the petitioner upon said official primary ballot for the reason that the
said declaration of candidacy was presented for filing on Saturday afternoon and not within
regular office hours as fixed by sec. 2045 N. C. L.
The matter was orally argued by counsel for the respective parties and submitted to the
court and by stipulation in open court it was ordered that the court upon reaching its
conclusion should enter its order in accordance therewith and later files its decision. By a
majority conclusion the court entered its order on the 17th day of August 1938, directing that
a peremptory writ issue, commanding respondent to place petitioner's name upon the official
primary ballot of the primary election to be held on September 6, 1938, as a candidate for
nomination by the democratic party for the office of sheriff of said Lincoln County, Nevada.
In determining the question before the court it is simply a matter of construing secs. 2045,
2408 and 2409 N. C. L. 1929, and of acts of which said sections may be amendments. It will
be noted that sec. 2045 N. C. L. which fixes the regular office hours of various county
officers, including the several county clerks, of this state, was originally enacted March 29,
1907, page 373, and provides that certain county officers, including county clerks, "shall
keep an office at the county seat of their county, which shall be kept open on all days
except Sundays and nonjudicial days, from nine o'clock a.m. to 12 o'clock a.m., and from
one o'clock p.m. to five o'clock p.m.
enacted March 29, 1907, page 373, and provides that certain county officers, including county
clerks, shall keep an office at the county seat of their county, which shall be kept open on all
days except Sundays and nonjudicial days, from nine o'clock a.m. to 12 o'clock a.m., and
from one o'clock p.m. to five o'clock p.m. for the transaction of public business; * * *. So it
will be noted that said sec. 2045 N. C. L., as originally enacted, required county clerks to
keep their offices open on Saturday afternoons. It will also be noted that said sec. 2408 N. C.
L., which was a part of the act of March 23, 1917, regulating the nomination of candidates for
public office in the State of Nevada, provides, Every candidate for nomination for any
elective office not less than thirty days prior to the primary shall file a declaration * * * of
candidacy in substantially the following form: then follows the prescribed form. The said
original act of March 23, 1917, did not require that such declarations be filed during regular
office hours, however, by an act of the legislature, approved March 23, 1927, sec. 6 of said
original act was amended and is now sec. 2409 N. C. L., and provides that all declarations of
candidacy shall be filed during regular office hours. The said act of March 23, 1917,
requires that all declarations of candidacy for county offices be filed with the clerk not less
than thirty days prior to the primary election and which is now known as subdivision (a) of
said sec. 2408 N. C. L. has ever since remained in full force and effect, and the said Act of
March 29, 1907, fixing regular office hours of various county officers including county
clerks, was amended March 27, 1929, and which is now known as said sec. 2045 N. C. L.,
and by said amendment county clerks are not required to keep their offices open on Saturdays
from 1 o'clock p.m. to 5 o'clock p.m. for the transaction of public business. Counsel for
respondent lay considerable stress upon the fact that the law which now fixes the regular
office hours of the various county officers does not require respondent, as county clerk, to
keep her office open on Saturday afternoons, and contend that Saturday afternoons were
therefore not a part of the regular office hours, and that inasmuch as the statute {sec.
respondent, as county clerk, to keep her office open on Saturday afternoons, and contend that
Saturday afternoons were therefore not a part of the regular office hours, and that inasmuch as
the statute (sec. 2409 N. C. L.) provides that all declarations of candidacy shall be filed
during regular office hours, respondent therefore acted within her rights. However, the said
amendment of 1929, after fixing the regular office hours, contains the following proviso:
* * * that nothing contained herein shall be construed so as to interfere with any duty now
required of any public official under any of the election laws of this state. And since, at the
time the said amendment of 1929 was enacted, it was then the duty of county clerks of this
state to receive and file declarations of candidacy of any qualified elector, not less than thirty
days prior to the primary election, which included Saturdays from 9 o'clock a.m. to 12
o'clock noon and from 1 o'clock p.m. to 5 o'clock p.m., and this being a duty imposed upon
county clerks by the primary election law at the time said amendment of 1929 was enacted,
we are of the opinion that the above-quoted proviso continued that requirement of the law in
full force and effect. We are of the opinion that the conclusion here reached is supported by
the rule announced by this court in the case of State ex rel. Maxson v. Brodigan, 37 Nev. 488,
143 P. 306, where this court held the well-settled rule to be that penalties and forfeitures are
not favored unless clearly expressed, and that a qualified elector should not be deprived of
the right to have his name placed on the ballot unless the statute clearly directs that such
should be the result. [Page 307.] And in the instant case we find no statute which clearly
directs that petitioner's name should be left off the ballot. To hold otherwise would, in effect,
be holding the above-quoted proviso to be meaningless.
For the reasons given, it is hereby ordered that the order directing said peremptory writ
of mandate to issue will stand as heretofore ordered.
order directing said peremptory writ of mandate to issue will stand as heretofore ordered.
Ducker, J.; I concur.
Taber, J., dissenting:
The 1927 amendment to the primary election law, N. C. L., sec. 2409, provides that
declarations of candidacy for county offices shall be filed during regular office hours. At
that time county clerks were required to keep their offices open on Saturday afternoons by
virtue of the county officers office-hour statute of 1907, Stats. 1907, p. 373, an entirely
separate statute, not relating in any way to election laws. In 1929 said office hours law was
amended, N. C. L., sec. 2045, so that county clerks and certain other county officers would
not be required to keep their offices open on Saturday afternoons; provided, that nothing
contained herein shall be construed so as to interfere with any duty now required of any
public official under any of the election laws of this state. It is the opinion of the majority of
this court that the foregoing proviso allows candidates for county offices to file declarations
of candidacy on Saturday afternoons.
It seems clear to me that by the 1927 amendment to the primary law, it was the intention of
the legislature to end all uncertainty and confusion regarding the hours within which
candidates for office may and must file their declarations. I do not think that the legislature, in
using the words during regular office hours, intended to specify what those hours should
be; that was a matter to be taken care of by separate office-hour legislation.
The duty of county clerks, before 1929, to keep their offices open on Saturday afternoons,
was not a duty under any of the election laws of this state. To hold, therefore, as I think we
should in this case, that when a candidate for a county office files his declaration of candidacy
on a Saturday, such declaration must be filed not later than noon of that day, would not
interfere with any duty now required of county clerks under any of the election laws of
this state.
later than noon of that day, would not interfere with any duty now required of county clerks
under any of the election laws of this state.
Under the majority opinion, the county clerks were required to accept filings of
declarations of candidacy for county offices not only in the afternoon of August 6, but also on
at least two of the Saturday afternoons next preceding that date. I do not think such was the
legislative intent.
Reading together secs. 2408, 2409, and 2405 N. C. L. 1929, I am clearly of the opinion
that petitioner's filing of his declaration of candidacy on the afternoon of Saturday, August 6,
1938, was unlawful, and that his name should not have been placed on the ballot for the
primary election. Being of that opinion, I think the alternative writ should have been
dismissed, and the petition for writ of mandamus denied.
NoteColeman, C. J., having disqualified himself, the Governor designated Hon. James
Dysart, Judge of the Fourth Judicial District, to sit in his stead.
____________
58 Nev. 446, 446 (1938) Ramos v. State
JOSE RAMOS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 3231
October 11, 1938. 83 P. (2d) 147.
1. Criminal Law.
Upon a plea of guilty of murder under statute providing that, if defendant be convicted on confession in
open court, court shall proceed by examination of witnesses to determine degree of crime and give sentence
accordingly, trial court had duty of first taking testimony to determine degree of crime and, if found to be
murder in first degree, it was required to impose penalty of either life imprisonment or death. Comp. Laws,
sec. 10068.
2. Criminal Law.
Where defendant entered a plea of guilty under a statute providing that, if one charged with murder
should be convicted on confession in open court, court should proceed to determine degree of crime by
examination of witnesses, no issue was left as to defendant's guilt of the crime of murder. Comp. Laws, sec.
10068.
3. Criminal Law.
Where defendant's appeal from conviction for murder was taken long after the expiration of time for
taking a bill of exceptions, supreme court would not consider testimony not embodied in a proper bill of
exceptions, although clerk of trial court in certifying up the record proper included in it the testimony
taken.
4. Criminal Law.
Where defendant, represented by counsel, pleaded guilty to charge of murder and was sentenced
following confession in open court, the state was not required to present proof of the corpus delicti.
Appeal from Third Judicial District Court, Eureka County, Edgar Eather, Judge.
Jose Ramos was convicted of murder in the first degree, and he appeals. Affirmed.
Edward A. Ducker, Jr., for Appellant:
In the light of the assignments of errors, and of the showing that there has been prejudice
shown, insufficient evidence to establish a homicide case in any way, the hearsay evidence
offered in the trial, the uncorroborated testimony and confession of the defendant, the
absolute failure of the state to prove the corpus delicti, and the general rules of law in
matters such as this, it is respectfully submitted that the judgment appealed from should
be reversed.
58 Nev. 446, 447 (1938) Ramos v. State
the absolute failure of the state to prove the corpus delicti, and the general rules of law in
matters such as this, it is respectfully submitted that the judgment appealed from should be
reversed.
Gray Mashburn, Attorney-General; W. T. Mathews and Alan Bible, Deputy
Attorneys-General; and W. R. Reynolds, District Attorney, for the State:
In the absence of a bill of exceptions, there can be no examination of this entire case. State
v. Cerfoglio, 46 Nev. 331, 201 P. 322; State v. Mills, 12 Nev. 403; State v. Larkin, 11 Nev.
314.
Even had there been no proof whatever of the corpus delicti, it is generally held that a judicial
confession is sufficient without corroboration. 30 C. J., sec. 533, p. 289; 16 C. J. sec. 1514,
p.735.
In the instant case the plea of guilty by the appellant is a confession of guilt and equivalent to
a conviction. State v. Ceja, 53 Nev. 281, 2 P. (2d) 124; State v. Ah Chuey, 14 Nev. 92.
OPINION
The defendant was charged by the information with the crime of murder. He being without
means, the court appointed an attorney to represent him. Thereafter defendant entered a plea
of guilty, whereupon the court took testimony as a basis for determining the degree of the
crime and for fixing the penalty, after which the crime was fixed as murder in the first degree
and the defendant was sentenced to death.
A few days before the date fixed for the execution, the Mexican Consul at San Francisco
engaged defendant's present attorney to take an appeal in the case, but long prior to his
employment the time for the taking of a bill of exceptions had expired. However, the clerk of
the court in certifying up the record proper embraced in it the testimony taken, as above
stated.
58 Nev. 446, 448 (1938) Ramos v. State
of the court in certifying up the record proper embraced in it the testimony taken, as above
stated.
Counsel for the defendant strenuously urges that the testimony sent up shows that there
was no proof of the corpus delicti, and that hence the judgment must be reversed.
1, 2. Section 10068, Nev. Comp. Laws. 1929, provides, inter alia, * * * the jury before
whom any person indicted for murder shall be tried, shall, if they find such person guilty
thereof, designate by their verdict whether it be murder of the first or second degree; but, if
such person shall be convicted on confession in open court, the court shall proceed, by
examination of witnesses, to determine the degree of the crime, and give sentence
accordingly. Every person convicted of murder in the first degree shall suffer death or
confinement in the state prison for life, at the discretion of the jury trying the same; or upon a
plea of guilty the court shall determine the same * * *.
Upon a plea of guilty of murder, there devolves upon the trial court the duty, first, of
taking testimony for the purpose of determining the degree of the crime. If, as in this case, the
crime is found to be that of murder in the first degree, the court must then fix the penalty,
either of life imprisonment or death. The statute proceeds upon the theory that, by entering a
plea of guilty, no issue is left as to the defendant's guilt of the crime of murder. State v. Ceja,
53 Nev. 272, 298 P. 658, 2 P. (2d) 124. This is the well-recognized rule. 14 Am. Jur., p. 952,
sec. 272.
3. We cannot consider the testimony certified up by the clerk because it is not embodied in
a bill of exceptions. The only purpose of the testimony was to enable the court to determine
the degree of the crime and the penalty to be imposed, and the district attorney naturally
limited the evidence offered to such as would enable the court to determine those matters.
4. It is urged on behalf of the defendant that this court should establish an exception to
the rule that, upon a plea of guilty, no issue is left to be determined, and hold that, upon
plea of guilty to a charge of murder, the state should nevertheless be required to present
proof of the corpus delictithe fact of death caused by the act of the defendant.
58 Nev. 446, 449 (1938) Ramos v. State
court should establish an exception to the rule that, upon a plea of guilty, no issue is left to be
determined, and hold that, upon plea of guilty to a charge of murder, the state should
nevertheless be required to present proof of the corpus delictithe fact of death caused by the
act of the defendant. It is argued by the defendant's counsel that, notwithstanding the plea of
guilty, the victim of the shooting might still be alive, or the shots might not have been the
cause of death. After careful search, we are unable to find support, either under the common
law or by statute, for such an exception to the rule. The law as it stands affords to the
defendant a number of safeguards against a miscarriage of justice. An attorney was appointed
by the court to appear with the defendant on his arraignment and sentence, and it is
reasonable to presume that no circumstance had come to the attention of the defendant's
counsel, the district attorney or the trial court which would raise a doubt as to the fact or
cause of death.
The judgment appealed from is affirmed, and the district court is directed to fix a time and
make the proper order for carrying into effect by the warden of the state prison the judgment
rendered.
NoteDucker, J., disqualified himself, and the Governor designated Hon. Wm. D. Hatton,
Judge of the Fifth Judicial District, to sit in his stead.
____________
58 Nev. 450, 450 (1938) Conklin Ex Rel. v. Buckingham
STATE OF NEVADA, on the Relation of N. E. CONKLIN, Petitioner, v. D. M.
BUCKINGHAM, County Clerk of the County of Mineral, Nevada, and Ex Officio
Registrar of Said County, Respondent.
No. 3250
October 25, 1938. 83 P. (2d) 462.
1. Mandamus.
Mandamus will not issue unless a clear legal right to the relief sought is shown. Comp. Laws, sec. 9242.
2. Mandamus.
Ordinarily, mandamus against an officer is an appropriate remedy only where officer refuses to perform a
definite present duty imposed upon him by law. Comp. Laws, sec. 9242.
3. Mandamus.
Mandamus will not lie to compel an act which, without its command, it would not be lawful for officer to
do. Comp. Laws, sec. 9242.
4. Mandamus.
Generally, mandamus will not lie to undo what ought not to have been done. Comp. Laws, sec. 9242.
5. Mandamus.
Mandamus would not lie to compel county clerk to purge register of the names of allegedly illegal voters,
especially where such voters were not made parties nor served with process, since statutory remedy by
affidavit of challenge should be pursued. Comp. Laws, secs. 2380, 2382, 2509, 9242; Stats. 1917, c. 231.
Original proceeding in mandamus by the State of Nevada, on relation of N. E. Conklin,
against D. M. Buckingham, County Clerk of the county of Mineral, Nevada, and ex officio
registrar of said county, to compel defendant to purge the register of voters of certain names.
Petition dismissed.
N. E. Conklin, in pro per.:
The registrar is not a judicial officer, he is ministerial, and when the act shows that
proposed registrant is not a resident of the county and state, the registrar must reject him; he
has no discretion in the matter.
In cases of palpable abuse of discretionary power, and where the act is purely ministerial
and duty becomes absolute, mandamus may issue. Hilmer v. Superior Court, 29 P. (2d) 175.
OPINION
On September 10 of the present year, petitioner applied to this court for a writ of
mandamus commanding the county clerk of Mineral County, as ex officio registrar, to purge
the register of voters of the names of forty-six allegedly illegal voters and registrants, most of
whom, according to the allegations of the petition, were men of the United States marine
corps and their wives. The petition was based upon the grounds That said persons are not
bona fide residents of the State of Nevada and of the County of Mineral, neither are they, or
any of them eligible to be registered as qualified electors or as electors or as voters of the
County of Mineral, State of Nevada, for the reason that at the time of the enlistment of said
Marines the County of Mineral, State of Nevada, was not their, or his place of residence.
None of the forty-six persons listed in the petition was made a party to this proceeding, nor
was any process or notice served upon any of them. They were not, nor was any of them,
represented by counsel; but, by consent of the petitioner and with the permission of the court,
Captain George W. Walker addressed the court in their behalf. It was stipulated that a general
demurrer be considered as having been filed, and that the allegation of nonresidence be
considered as having been denied. A written Memorandum of Law, evidently prepared by
an attorney, but not signed, was filed in behalf of said forty-six persons. It was agreed that as
soon as the court reached a decision, its order or judgment might be made and
enteredthe court's opinion to be filed later.
that as soon as the court reached a decision, its order or judgment might be made and
enteredthe court's opinion to be filed later. On September 30 the proceeding was dismissed.
Section 9242 Nev. Comp. Laws 1929, provides in part that the writ of mandamus may be
issued to compel the performance of an act which the law especially enjoins as a duty
resulting from an office, trust, or station * * *. There is no statutory provision requiring or
authorizing any registry agent, upon demand of an elector, to remove from the list of
registered voters the name of any person upon the ground that he or she is not a bona fide
resident.
Section 25 of An Act regulating the registration of electors for general, special, and
primary elections, Statutes of Nevada 1917, chap. 231, p. 425, at p. 433 (Comp. Laws, sec.
2384), expressly authorizes district court proceedings to compel the county clerk to make and
enter the name of any qualified elector in the precinct register; but neither this nor any other
section of our statutes provides for such proceedings to compel the clerk or any registry agent
to purge the registry list by striking therefrom the names of persons who do not possess the
necessary residential qualifications for voting.
Section 21 of said 1917 registration act, as amended, Statutes of Nevada, 1927, ch. 171, p.
290 (sec. 2380 Nev. Comp. Laws 1929), provides that the county clerk must cancel any
registry card in the following cases: The county clerk must cancel any registry card in the
following cases:
1. When he has a personal knowledge of the death of the person registered or when a duly
authenticated certificate of the death of any elector is filed in his office.
2. When the insanity of the elector is legally established.
3. Upon the production of a certified copy of the judgment of conviction of any elector of
felony.
4. Upon the production of a certified copy of the judgment of any court directing the
cancellation to be made.
5. Upon the request of any elector who desires to change his politics, or to affiliate with
any political party, provided said change is made forty-five days before any primary election.
If any card is cancelled by reason of this subdivision 5 the elector may immediately reregister.
6. Upon proof, by affidavit, of one or more electors filed with the county clerk of the
removal from the county of any person as provided by section 5 of this act.
7. At the request of the party registered. If any card is so cancelled the party shall not be
reregistered within forty-five days of such cancellation.
The grounds upon which the petition in the instant proceedings is based are not included in
any of the aforesaid six grounds for cancellation of registry cards.
In sec. 6 of An Act to provide for the registration of the names of electors, and to prevent
fraud at elections, Statutes of Nevada 1869, chap. 90, p. 140, at p. 142, it was expressly
provided, inter alia, that any elector may also apply to the District Court of his district, or the
Judge thereof, for a writ of mandamus to compel the Registry Agent to erase from the
registered list of electors the name of any person therein registered, whom the applicant may
know, and be able to prove, is not a qualified elector * * *. But no such provision was
incorporated in the new registration act of 1917.
1-4. Mandamus will not issue unless a clear legal right to the relief sought is shown.
Ordinarily, mandamus against an officer is an appropriate remedy only where he refuses to
perform a definite present duty imposed upon him by law. Furthermore, as a general rule, the
writ will not lie to undo what ought not to have been done. Nor will it lie to compel an
officer to do an act which, without its command, it would not be lawful for him to do.
do an act which, without its command, it would not be lawful for him to do. State ex rel.
Blake v. County Commissioners, 48 Nev. 299, 231 P. 384; Ferris on Extraordinary Legal
Remedies, secs. 192, 193, 194; Moses on Mandamus, p. 58; State ex rel. Lyle v. Willett, 117
Tenn. 334, 97 S. W. 299; Annotation, 96 A. L. R. at page 1050.
In some jurisdictions there are special statutory provisions authorizing trial courts or
judges to purge registry lists, but at the present time no such provisions appear in the Nevada
statutes, and a writ of mandamus cannot supply them.
It would be a reproach to the law if no method were provided for preventing voting by
persons lacking legal qualifications. Our statutes, however, do provide a remedy. Sec. 2382
Nev. Comp. Laws 1929, being sec. 23 of An Act regulating the registration of electors for
general, special, and primary elections, Statutes of Nevada 1917, chap. 231, p. 425, at pp.
432, 433, reads as follows: At any time not later than the tenth day prior to any election, a
challenge may be filed with the county clerk, signed by a qualified elector in writing, and duly
verified by the affidavit of the elector, that the elector designated therein is not entitled to
vote. Such affidavit shall state the grounds of challenge, objection, and disqualification. The
county clerk shall file the affidavit of challenge in his office as a record thereof. The county
clerk must deliver a true and correct copy of any and all such affidavits so filed to the
inspectors of election, at the same time, and together with the copy of the precinct registers
and check-lists, and other papers required by this act to be delivered, and he must write
distinctly opposite to the name of any person whose qualification as an elector has been
challenged, the words To be challenged.' It shall be the duty of the inspectors of election, if,
on the election day, such person who has been objected to and challenged applies to vote, to
test, under oath, his qualifications.
to vote, to test, under oath, his qualifications. Notwithstanding the elector is registered, his
right to vote may be challenged on the day of election by any qualified registered elector
orally stating to the inspectors of election the grounds of such objection or challenge. It shall
be the duty of the inspectors of election when it appears that any elector offers to vote and is
either challenged by a duly qualified registered elector on election day, or by an affidavit of
objection filed with the county clerk to test the qualifications of the elector and ask any
questions that judges may deem proper. They shall compare the answers of the elector to such
questions, which answers shall be given under oath, with the entries in the precinct register
books, and if it be found that said elector is disqualified, or that the answers given by such
elector, to the questions propounded by the inspectors do not correspond to the entry in the
precinct registers, or that said elector is disqualified from any cause under the law, of if he
refuses to take an oath as to his qualifications, he shall not be permitted to vote. The
inspectors of election, in their discretion, may require such elector to produce before them
one or more qualified electors of the county, as they may deem necessary, and have them
examined under oath, as to the qualifications of the elector.
Besides the right of challenge, any elector is also given the right to contest the right of any
person declared elected to an office upon the ground, among others, that illegal votes were
received. General election law, Statutes of Nevada 1917, chap. 197, sec. 71, p. 380 (sec. 2509
Nev. Comp. Laws 1929).
5. It was because petitioner did not pursue the proper remedy that his petition was
dismissed. We think it proper to observe, further, that when trial courts or judges are given
the power to purge registry lists, the persons whose qualifications to vote are questioned are
uniformly given their day in court. In the instant proceeding, as has already been pointed
out herein, none of the forty-six persons who are alleged to be lacking in residential
qualifications was made a party, nor was any notice or process served upon any of them.
instant proceeding, as has already been pointed out herein, none of the forty-six persons who
are alleged to be lacking in residential qualifications was made a party, nor was any notice or
process served upon any of them.
____________
58 Nev. 456, 456 (1938) Clover Valley Lumber Co. v. District Court
STATE OF NEVADA, on the Relation of CLOVER VALLEY LUMBER COMPANY, A
Corporation, Petitioner, v. THE SIXTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Pershing, and HONORABLE L. O.
HAWKINS, District Judge, Respondents.
No. 3242
November 2, 1938. 83 P. (2d) 1031.
The statute authorizing a litigant or his attorney in district court to disqualify judge by filing a request for
a change of judge, and making no provision for filing of affidavit of prejudice, is unconstitutional as an
unwarranted interference with the constitutional powers and duties of a judge. Stats. 1937, c. 117, secs. 1,
2.
2. Statutes.
An unconstitutional statute has no effect and does not repeal a prior statute.
3. Statutes.
The statute authorizing a litigant or his attorney to disqualify judge of district court by filing a request for
a change of judge being unconstitutional and of no effect, former statute authorizing litigant or his attorney
to disqualify judge on filing an affidavit of prejudice remained in force and effect. Stats. 1931, c. 153, secs.
1-3; Stats. 1937, c. 117, secs. 1,2.
4. Statutes.
Certain parts of a statute may be valid while other sections of the same act may be void.
5. Statutes.
Where provisions of statute authorizing litigant or his attorney in district court to disqualify judge by
filing request for a change of judge were unconstitutional and following provisions were not sufficiently
severable and independent of the provisions relating to request for change of judge, entire statute was
unconstitutional. Stats. 1937, c. 117, secs. 1, 2.
6. Statutes.
When a portion of a statute which is unconstitutional is stricken, it carries with it all parts of the same or
the additional sections which are not independent of that which was rejected.
Original proceeding in mandamus by the State on the relation of the Clover Valley Lumber
Company, a corporation, against the Sixth Judicial District Court of the State of Nevada, in
and for the County of Pershing, and the Honorable L. O. Hawkins, District Judge. Writ
granted.
Edward F. Lunsford, for Petitioner:
If the 1937 act is unconstitutional, it does not repeal the 1931 act and it may be ignored to
the same extent as though it were never enacted. That is to say, those parts of the 1937 act
which are unconstitutional. 59 C. J., p. 939, sec. 552; State v. McClear, 11 Nev. 39; Seaborn
v. Wingfield, 56 Nev. 260, 48 P. (2d) 881.
It is our contention that under sections 1, 5, 6, and 7 of article VI of the constitution of
Nevada, any judge elected as therein provided and possessing the qualifications therein stated
may not be removed from hearing a cause properly coming within his jurisdiction unless for
some cause or reason provided by the legislature as a ground for disqualification. Daigh v.
Schaffer (Cal. App.), 73 P. (2d) 927; Austin v. Lambert, Judge (Cal.), 77 P. (2d) 849. The act
in question here leaves to the party litigant or an attorney the absolute and unchallenged right
to disqualify a judge without any statutory reason for so doing.
The first proviso in the 1937 act is so inseparably dependent upon the first part of the act
that it cannot stand alone. There is no similar provision in the 1931 statute as to the time of
the making and filing of the affidavit, and in order for the court to preserve the 1937 proviso,
it would be necessary for it to legislate by substituting the word affidavit for the word
"request" 59 C. J. 1090, sec.
request 59 C. J. 1090, sec. 640b; Frix v. State (Tenn.), 256 S. W. 449; State v. Beemer, 51
Nev. 192, 272 P. 656. So if the earlier part of the act be void, it must necessarily carry with it
the proviso. State v. McClear, supra.
W. A. Wilson and Art E. Jeffers, for Respondents:
If the first part of the 1937 act is held unconstitutional, thereby restoring the right to
disqualify on affidavit and deposit of $25, such does not affect the proviso in the 1937 act
that the privilege must be exercised within the time specified in that act, as that part of the act
will stand. The authorities are unanimous that where a part of an amending statute is declared
to be unconstitutional, if the remaining part, after the unconstitutional part is stricken, still
makes sense, no part of the amended statute will fall except the part declared to be
unconstitutional. 59 C. J., secs. 527, 530, pp. 925, 928. By striking the first part of the 1937
statute and substituting therefor the corresponding part of the 1931 statute, and reading the
law in its entirety after such substitution, it makes good sense and is a complete law. For that
reason, it is now the law that, whether the disqualification may be brought about by a simple
request or through the filing of an affidavit and depositing of $25, the right to disqualify must
be exercised within the time provided in the 1937 law. Petitioner failed to comply with that
part of the act of 1937 which states said request must be made before any contested matter
has been tried by the court.
L. D. Summerfield and Harlan L. Heward, Amici Curiae:
The 1937 statute insofar as it permits a change of judge upon mere request appears to us to
be unconstitutional, in view of the decision of the supreme court of California in a parallel
case, to wit, Austin v. Lambert, 77 P. (2d) 849, and the decision of the district court of
appeals in California in Daigh v. Schaffer, 73 P.
appeals in California in Daigh v. Schaffer, 73 P. (2d) 927.
This court, in at least five decisions, has held that an unconstitutional statute has no effect,
and of course does not repeal a prior statute. Meagher v. Storey Co., 5 Nev. 244; State v.
McClear, 11 Nev. 39; State v. Crozier, 12 Nev. 300; State v. Hallock, 14 Nev. 202; Seaborn
v. Wingfield, 56 Nev. 260, 48 P. (2d) 881.
The question, of course, arises as to whether or not the first proviso of the 1937 statute
falls within the invalidity of the mere request provision. Observe that in the proviso the word
request is used twice, and to make it operative it would be necessary for the court to read
into it the word affidavit in the two places. Applying the rules announced in the authorities,
we come to the conclusion that the first proviso in the 1937 statute is dependent upon the
language immediately preceding the proviso and is not severable from it.
OPINION
By the Court, Guild, District Judge.
The petitioner, Clover Valley Lumber Company, a corporation, has petitioned for a writ of
mandamus, directed to Honorable L. O. Hawkins, Judge of the sixth judicial district court of
the State of Nevada, in and for the county of Pershing, to call in another judge to hear, try and
determine a cause entitled Harry Lee Brutan, plaintiff, v. C. D. Terwilliger and the Jungo
Star Gold Mines Company, a corporation, defendants, and in which action the petitioner,
Clover Valley Lumber Company, a corporation, has been made party defendant in the action.
The petitioner alleges that on the 24th of June 1938, it filed with the clerk of said court, in
which said action was then, and is now, pending, an affidavit for change of judge, made by J.
J. Pelmar, the assistant secretary of said Clover Valley Lumber Company, a corporation,
and simultaneously deposited the sum of $25 cash with said clerk and filed an affidavit of
prejudice, or bias, and made its request of said Honorable L. O. Hawkins, judge aforesaid,
that he request the judge of some other district court to preside at the hearing and trial of
said action.
of judge, made by J. J. Pelmar, the assistant secretary of said Clover Valley Lumber
Company, a corporation, and simultaneously deposited the sum of $25 cash with said clerk
and filed an affidavit of prejudice, or bias, and made its request of said Honorable L. O.
Hawkins, judge aforesaid, that he request the judge of some other district court to preside at
the hearing and trial of said action. The petition alleges that the request was made in
accordance with that certain act of the legislature of the State of Nevada entitled, An Act to
amend an act entitled An act concerning the courts of justice of this state and judicial
officers,' approved January 26, 1865, as amended, by amending section 45 thereof and by
adding two additional sections to said act, to be known as sections 45a and 45b, approved
March 25, 1931, Stats. 1931, c. 153.
An alternative writ issued out of this court on the 29th day of June 1938, made returnable
on the 18th of July 1938. The matter was presented, and argued by respective counsel, and
amicus curiae, to the court on the 20th of July 1938 and submitted.
The essential matters of respondents' answer set forth that the request for change of judge
was filed under the provisions of section 8407 N. C. L. 1929, as amended in the session laws
of 1931, c. 153, p. 247, and entirely disregarded the amendments to said section 8407 as
made by the session laws of 1937, page 214; that the request was not timely filed; that the fee
of $25 cash was not deposited with the clerk of the district court; that several contested
matters in said action had been determined, heard and disposed of by the presiding judge, and
that the matter was on June 14 set for trial for the 30th of June 1938. The answer further
alleges that on June 24, 1938, a second request for change of judge was filed in the said court
and cause, without first having obtained the consent in writing of the judge to whom the
request or application was first made, all of which was in violation of rule XI, subdivision
fourth thereof, and rule XLII of the rules of the district court of the State of Nevada; and
further alleges that although the second request for change of judge was not denied prior
to the time the alternative writ of mandamus was served upon respondent, that the
respondent admits that he would have denied said second request or application for
change of judge, and will, unless the supreme court requires otherwise, deny said
request.
subdivision fourth thereof, and rule XLII of the rules of the district court of the State of
Nevada; and further alleges that although the second request for change of judge was not
denied prior to the time the alternative writ of mandamus was served upon respondent, that
the respondent admits that he would have denied said second request or application for
change of judge, and will, unless the supreme court requires otherwise, deny said request.
It appears that at the time of the making of the first request the petitioner deposited a check
with the clerk of the court, and that later, and in the second request, cash was tendered to the
clerk. The receipt of the clerk in the sum of $25, dated June 24, is an exhibit in the matter, as
is also the notice of request for change of judge, and the affidavit of J. J. Pelmar, charging
bias and prejudice, as aforesaid.
The reply to the answer sets forth that the attorney for the relator upon filing the affidavit
for change of judge gave the said clerk the attorney's check in the sum of $25; that the clerk
accepted said check and filed said affidavit of bias or prejudice referred to in the proceedings;
and further sets forth that no rule of the district court is applicable to this proceeding, as
related by respondent, for the reason that the matter is not a motion, writ, rule or order as
contemplated by and referred to in the above rules of the district court, but, on the contrary,
that the proceeding is under a statute which neither contemplates nor implies any motion,
application or petition shall be filed or made to the court.
We are in accord with this viewpoint.
Petitioner further replies and denies that the petitioner's second request had not been
denied prior to the time of service of the alternative writ of mandamus herein; and alleges that
the conduct on the part of the respondent in failing, omitting and declining to grant said
request for change of judge up to and including a few moments prior to the time set for trial
signified a clear and unequivocal intention on the part of the respondent not to grant the
request for change of judge, amounting in the law to a refusal so to do.
few moments prior to the time set for trial signified a clear and unequivocal intention on the
part of the respondent not to grant the request for change of judge, amounting in the law to a
refusal so to do.
The issue comes before us squarely upon the interpretation and construction of the 1937
amendment of section 8407 N. C. L. 1929.
For many years, and prior to 1931, our statute read as follows:
Judge Disqualified, WhenProviso. A judge shall not act in such an action or
proceeding: First, when he is a party or interested in the action or proceeding. Second, when
he is related to either party by consanguinity or affinity within the third degree. Third, when
he has been attorney or counsel for either of the parties in the action or proceeding. Fourth,
when he is related to an attorney or counsellor for either of the parties by consanguinity or
affinity within the fourth degree; provided, that this section shall not apply to the arrangement
of the calendar, or the regulation of the order of business; and provided further, that the fourth
subdivision of this section shall not apply to the presentation of ex parte or uncontested
matters, except in fixing fees for attorneys related within the degree of consanguinity or
affinity therein specified. Section 8407 N. C. L. 1929.
In 1931 the legislature amended said statute, as follows:
Sec. 45. A judge shall not act as such in an action or proceeding: First, when he is a party
or interested in the action or proceeding. Second, when he is related to either party by
consanguinity or affinity within the third degree. Third, when he has been attorney or counsel
for either of the parties in the action or proceeding. Fourth, when he is related to an attorney
or counselor for either of the parties by consanguinity or affinity within the fourth degree.
Fifth, if either party to a civil action in the district court or his or its attorney or agent shall
file an affidavit alleging that the affiant has cause to believe and does believe that on
account of the bias or prejudice or interest of said judge he cannot obtain a fair and
impartial trial, the said judge shall at once transfer the action to some other department
of the court, if there be more than one department of said court in said district, or request
the judge of some other district court of some other district to preside at the hearing and
trial of such action; provided, the party filing such affidavit for change of judge shall at
time of filing same pay to the clerk of the court in which such affidavit is filed the sum of
twenty-five dollars, which sum shall be by the clerk transmitted to the state treasurer,
who shall place the same to the credit of the district judge's traveling expense fund;
provided, that this section shall not apply to the arrangement of the calendar, or the
regulation of the order of business; and provided further, that the fourth subdivision of
this section shall not apply to the presentation of ex parte or uncontested matters, except
in fixing fees for attorneys related within the degree of consanguinity or affinity therein
specified.
to a civil action in the district court or his or its attorney or agent shall file an affidavit
alleging that the affiant has cause to believe and does believe that on account of the bias or
prejudice or interest of said judge he cannot obtain a fair and impartial trial, the said judge
shall at once transfer the action to some other department of the court, if there be more than
one department of said court in said district, or request the judge of some other district court
of some other district to preside at the hearing and trial of such action; provided, the party
filing such affidavit for change of judge shall at time of filing same pay to the clerk of the
court in which such affidavit is filed the sum of twenty-five dollars, which sum shall be by
the clerk transmitted to the state treasurer, who shall place the same to the credit of the
district judge's traveling expense fund; provided, that this section shall not apply to the
arrangement of the calendar, or the regulation of the order of business; and provided further,
that the fourth subdivision of this section shall not apply to the presentation of ex parte or
uncontested matters, except in fixing fees for attorneys related within the degree of
consanguinity or affinity therein specified. * * *
Sec. 45a. No judge or court shall punish for contempt anyone making, filing or presenting
such affidavit or motion founded thereon. * * *
Sec. 45b. Not more than one change of judge may be granted in any action, but each party
shall be heard to urge his objections to any judge in the first instance, and the change of judge
shall be to the most convenient judge to which the objections of the parties do not apply or
are least applicable. If the parties agree upon a judge then such judge shall be selected.
Statutes 1931, page 247, c. 153, secs. 1-3.
This act was by this court held to be constitutional. State ex rel. Beach v. District Court, 53
Nev. 444, 5 P.(2d) 535.
The act as amended by the 1931 statute has been the subject of much controversy. In the
opinion of the writer, it is considered to be harsh and unfair by most of the presiding judges
of our district courts, in giving them no opportunity to reply to an affidavit filed against them
for bias or prejudice, and they had no alternative other than to comply with the request of the
party using the statute against them. The legislature of 1937 passed an amendment, reading as
follows:
Sec. 45. A judge shall not act as such in an action or proceeding: First, when he is a party
to, or interested in the action or proceeding; second, when he is related to either of the parties,
plaintiff or defendant, by consanguinity or affinity within the third degree; third, when he has
been attorney or counsellor for either of the parties in the (particular) action or proceeding to
be tried; fourth, when he is related to an attorney or counselor for either of the parties to the
action or proceeding by consanguinity or affinity within the fourth degree; fifth, if any of the
parties to a civil action or proceeding to be tried in any district court of this state, or his or its
attorney or agent, shall make and file a request for a change of judge in the hearing and trial
of such civil action or proceeding, such district judge shall at once transfer the action or
proceeding to some other department of the court, if there be more than one department of
said court in such district, or in the event there is only one department of the district court in
such district, such district judge shall call in a district judge from some other district of this
state to preside at the hearing and trial of said civil action or proceeding and to hear all further
proceedings to be had therein; provided, that in the event any party shall make and file such
request, the same must be filed with the clerk of such district court before the hearing of any
contested matter in said action or proceeding has commenced, and/or in the event that no
contested matter has been heard in said action or proceeding prior to the trial thereof, then
in that event said request must be made and filed at least five days prior to the date set
for the trial of said action or proceeding; provided, however, that this section shall not
apply to the arrangement of the court calendar or the regulation of the order of the
business of the court; and provided further, that the fourth subdivision of section 1 of this
act shall not apply to the presentation of ex parte or uncontested matters except in fixing
fees for attorneys related within the fourth degree of consanguinity or affinity as therein
specified.
prior to the trial thereof, then in that event said request must be made and filed at least five
days prior to the date set for the trial of said action or proceeding; provided, however, that
this section shall not apply to the arrangement of the court calendar or the regulation of the
order of the business of the court; and provided further, that the fourth subdivision of section
1 of this act shall not apply to the presentation of ex parte or uncontested matters except in
fixing fees for attorneys related within the fourth degree of consanguinity or affinity as
therein specified.
* * *
Sec. 45B. Not more than one change of judge shall be granted in any civil action, whether
such change be made upon request made or filed or upon a judge's own motion, but each
party to the action shall be given an opportunity to urge any objection he may have to the
judge to whom such action is to be assigned at the time such assignment is made, and the
judge assigning such action shall pass upon any objection so made. If the parties in open court
or by written stipulation filed in the action agree upon the judge to whom the action is to be
assigned then such judge shall be selected, otherwise the judge of the court where such action
has been commenced shall select the judge.
Statutes 1937, page 214, c. 117, secs. 1, 2.
There can be no doubt but that the 1937 amendment sought to modify the then existing
law. The policy of these matters is spoken by the people through the legislature, and if the
statute is wrong it is up to the people speaking through the legislature, to remedy it.
1. There can be no doubt, in our opinion, as to the unconstitutionality of the amendment of
1937. Our authority for reaching this conclusion is contained in the case of Daigh v. Schaffer,
23 Cal. App. (2d) 449, 73 P.(2d) 927, California district court of appeals, third district, in
which that court had this to say of a statute very similar to the 1937 amendment:
That the Legislature has plenary power to prescribe the grounds which shall constitute
the disqualification of a judge is undoubtedly the law, but that its power to delegate to a
private citizen or to an attorney at law the right to determine that disqualification, based
upon his or their own peculiar wishes, desires or antipathies, is an entirely different
matter."
the grounds which shall constitute the disqualification of a judge is undoubtedly the law, but
that its power to delegate to a private citizen or to an attorney at law the right to determine
that disqualification, based upon his or their own peculiar wishes, desires or antipathies, is an
entirely different matter. [Page 930.]
The 1937 amendment to the California statute is different only to the 1937 amendment to
the Nevada statute in using the words peremptory challenge as distinguished from, in our
statutes, request for change of judge. The supreme court of the State of California in Austin
v. Lambert, 77 P. (2d) 849, 115 A. L. R. 849, also declared the 1937 statute of California
unconstitutional, and, as we read the above decision, based its conclusion upon the fact that
the act was an unwarranted interference with the constitutional powers and duties of a judge
upon mere caprice or whim of a party litigant, and that there is nothing said in the new
amended section about bias, prejudice, interest, or any other recognized ground for
disqualification. It is to be noted that in each instance in which an act of this kind has been
declared to be constitutional by courts of last resort in sister states the courts have held that an
affidavit of bias or prejudice, under oath, is at least some showing, or an imputation for the
disqualification of a trial judge, and is sufficient to save the statute from successful attack on
constitutional grounds.
2, 3. Being thus of the opinion that the 1937 amendment is unconstitutional, can we then
say that the 1931 amendment heretofore held to be constitutional is still in force and effect?
We believe it is. We have heretofore held that an unconstitutional statute has no effect, and
does not repeal a prior statute. Meagher v. Storey County, 5 Nev. 244; Seaborn v. Wingfield,
56 Nev. 260, 48 P. (2d) 881.
The respondent argues that the legislature intended by the 1937 statute to repeal the
provisions of the 1931 amendment providing for an affidavit and deposit, and, further, that
by the 1937 amendment it was clearly the intention of the legislature that a time limit
should be inserted within which to disqualify a judge before contested matters might be
heard, and cites many authorities from many sister states to the effect that objection to a
trial judge to be available must be made before appearance, especially as to the merits of
a case, and that an application for change of judge is too late if made after partial
hearing, and that time to object to a judge must be timely and seasonably made, promptly
upon its discovery, to the end that a litigant may not experiment with the judge and then
seek his disqualification.
further, that by the 1937 amendment it was clearly the intention of the legislature that a time
limit should be inserted within which to disqualify a judge before contested matters might be
heard, and cites many authorities from many sister states to the effect that objection to a trial
judge to be available must be made before appearance, especially as to the merits of a case,
and that an application for change of judge is too late if made after partial hearing, and that
time to object to a judge must be timely and seasonably made, promptly upon its discovery, to
the end that a litigant may not experiment with the judge and then seek his disqualification.
However, these matters have been by this court answered in the decision and opinion of the
case. State ex rel. Stokes v. District Court, 55 Nev. 115, 27 P. (2d) 534.
There remains but one further question, as we see it, for this court to determine. Is the first
proviso immediately following the provisions for the request and disqualification of judge
sufficiently severable and independent of the first part of the amendment of 1937 so as to
permit it to remain, or, rather, to be carried into and made a part of the 1931 amendment? The
proviso in question is heretofore set forth in the copy of the 1937 act.
4. This court has heretofore held that though certain sections of an act may be void others
may be valid. Ormsby County v. Kearney, 37 Nev. 314, 316, 142 P. 803; Mexican Ditch Co.
v. District Court, 52 Nev. 426, 289 P. 393.
5. The proviso in question, by its reading and connection with the subject matter, must of
necessity fall. It deals with and is dependent upon, and confined to the language immediately
preceding it, and is not properly severable; it has to do with a request for change of judge, not
an affidavit of bias or prejudice as required by the 1931 amendment.
6. The rule seems to be well settled when a portion of the statute which is
unconstitutional, and declared so to be, is stricken it carries with it all parts of the same,
or the additional section which is not complete in itself, or nor independent of that which
is rejected.
of the statute which is unconstitutional, and declared so to be, is stricken it carries with it all
parts of the same, or the additional section which is not complete in itself, or nor independent
of that which is rejected.
The rule in this regard is laid down in Sutherland, Statutory Construction, 296, as
follows: The natural and appropriate office of the proviso being to restrain or qualify some
preceding matter, it should be confined to what precedes it, unless it clearly appear to have
been intended for some other matter. It is to be construed in connection with the section of
which it forms a part, and is substantially an exception. If it is a proviso to the particular
section, it does not apply to others unless plainly intended. It should be construed with
reference to the immediately preceding parts of the clause to which it is attached.' State v.
Beemer, 51 Nev. 192, 200, 272 P. 656, 658.
For the reasons hereinbefore set forth, it is ordered that the alternative writ of mandamus
heretofore issued be made permanent.
NoteColeman, C. J., having disqualified himself, the Governor designated Hon. Clark J.
Guild, Judge of the First Judicial District, to sit in his stead.
____________
58 Nev. 469, 469 (1938) Las Vegas Ex Rel. v. Clark Co.
THE STATE OF NEVADA, Upon the Relation of THE CITY OF LAS VEGAS, A
Municipal Corporation of the State of Nevada, Et Al., Petitioners, v. THE COUNTY OF
CLARK Et Al., Respondents.
No. 3237
November 5, 1938. 83 P. (2d) 1050.
1. Taxation.
Where county commissioners reduced tax rate levied by city for city taxes, city did not have remedy at
law under statute giving special boards power to equalize property valuations for tax purposes, as respects
right of city to writ of mandamus compelling commissioners to restore rate levied by city. Comp. Laws,
secs. 6432-6438.
2. Taxation.
The legislature has not delegated to county boards of equalization power to levy taxes or to revise levy
made by any taxing body. Comp. Laws, secs. 6432-6438.
3. Taxation.
The county board of equalization is a board of special and limited jurisdiction having only such powers
as are specifically conferred upon it by statute. Comp. Laws, secs. 6432-6438.
4. Taxation.
Where county commissioners reduced tax rate levied by city for city taxes, city did not have remedy at
law under statute relative to taxes levied by county commissioners, as respects right of city to writ of
mandamus compelling commissioners to restore rate levied by city. Comp. Laws, sec. 6530.
5. Counties.
The statutory power of county commissioners to reduce or raise county tax rate applies only to taxes for
county purposes. Comp. Laws, sec. 6530.
6. Taxation.
Where county commissioners reduced tax rate levied by city for city tax, city was required to exhaust
remedy provided by statute relative to Nevada tax commission before applying to supreme court for writ of
mandamus to compel commissioners to restore rate levied by city. Comp. Laws, secs. 6542-6561.
7. Taxation.
Where county commissioners reduced tax rate levied by city for city taxes, city had adequate remedy at
law under statute creating Nevada tax commission and conferring on commission power to exercise general
supervision and control over revenue system of state, which remedy precluded the granting of writ of
mandamus compelling commissioners to restore rate levied by city. Comp. Laws, secs. 6542-6561.
8. Taxation.
Where statute authorized state tax commission to require various taxing authorities to submit yearly
budget estimates of expenses, further statutory provision empowering commission to require authorities to
increase or decrease tax rates was not inoperative on ground that, amount of money necessary to pay
expenses having been already estimated in budget and the tax rate estimated accordingly, no other rate
could be established, since to so interpret statute would be to attribute an absurdity to legislature. Comp.
Laws, sec. 6544, subd. 7.
9. Statutes.
A statute will never be interpreted so as to attribute an absurdity to legislature, if such interpretation is
avoidable.
10. Statutes.
In interpreting statutes every word involved in statute must be given effect if possible and not rendered
meaningless by overnight construction.
11. Taxation.
Statute relative to Nevada tax commission brings county revenue system as well as revenue system of
cities, towns, municipalities, and school districts under review and final adjustment by tax commission, as
respects rates of taxes, as well as respects valuation of property and other matters connected with raising of
revenue for support of counties, cities, towns, municipalities, and school districts. Comp. Laws, secs.
6542-6561.
In original mandamus proceeding by city against county commissioners to compel commissioners to
restore a tax rate levied by city for city taxes, supreme court was not required to decide constitutional
question raised by mere suggestion that act empowering state tax commission to adjust matter and
affording petitioners remedy at law was unconstitutional as delegation of tax levying power to board
created by appointment, since court would presume that statute was constitutional. Comp. Laws, sec. 6544,
subd. 7.
Where question of constitutionality of law arises on mere suggestion, supreme court would presume that
law was constitutional.
Original proceeding in mandamus by the State of Nevada, upon the relation of the city of
Las Vegas and others, against the county of Clark and others, to compel respondents to
restore the tax rate for city taxes, which rate was levied by petitioners.
rate was levied by petitioners. On petition, respondents' demurrers and returns to alternative
writ, petitioners' replies to returns, and petitioners' demurrer thereto. Respondents'
demurrers sustained, petition and alternative writ dismissed, and petitioners' motion to
strike denied.
Gray Mashburn, Attorney-General; W. T. Mathews and Alan Bible, Deputy
Attorneys-General; Roger Foley, District Attorney; and A. S. Henderson, Deputy District
Attorney, for Respondents:
The budget law (sections 3010-3025 N. C. L.) constitutes a complete financial plan and
supersedes all other provisions relating to the receipts and expenditures of revenue by towns
and cities of this state. Carson City v. County Commissioners, 47 Nev. 415, 224 P. 615.
Under the budget law, every county, city and town, etc., and the governing boards thereof,
are deemed to be governmental agencies of the State of Nevada. Section 51 of the city charter
of the City of Las Vegas (Stats. 1911, p. 145) is superseded and repealed by said budget law.
The county commissioners of Clark County have no power to levy for the city of Las
Vegas. The tax rate for the city of Las Vegas must be determined and fixed pursuant to the
terms of the budget law. The Nevada tax commission has general supervision of the entire
revenue system of the State of Nevada, and said commission must and does require counties
and cities to submit directly to said commission the budgets of the said governmental
instrumentalities, prepared and made up in accordance with said budget law. During the
October session of said Nevada tax commission it may direct the county commissioners and
the governing boards of cities and other governmental instrumentalities to increase or
decrease rates of taxation. These powers are expressly conferred by subdivisions 7 and S of
powers are expressly conferred by subdivisions 7 and 8 of section 6544 N. C. L.
Harry H. Austin, City Attorney, for Petitioners:
The legislature, by the enactment of the new tax commission law (passed at the same
session as the budget law) has given the tax commission no power to levy taxes nor to compel
counties and cities to make any change in a levy made, except to produce the net revenue
estimated as necessary for the conduct of such county (or city) government, as appears from
such budget.
By the budget law, the legislature gives counties and cities the power to levy taxes, and
prescribes the manner of so doing.
Where does the power to levy taxes lie? If with the tax commission, then we have before
us the constitutional question of whether subdivision 7 of section 6544 of the tax commission
law can stand at all, being a delegation of tax levying power to a board created by
appointment, and not elected by the people. State v. Boerlin, 38 Nev. 39, 144 P. 738.
We fail to find in sections 6432 to 6438 N. C. L. any provision giving a county board of
equalization the power to change a tax levy made by a city, or even hinting or inferring that
such power exists. Nor do we find such authority in section 6530 N. C. L. Boards of county
commissioners are inferior tribunals of special and limited jurisdiction, and can only exercise
such powers as are especially granted. State v. Boerlin, 30 Nev. 473, 98 P. 402.
Mandamus is the proper remedy upon the facts disclosed by the petition. State ex rel. City
of Reno v. Boyd, 27 Nev. 249, 74 P. 654; City of Bisbee v. Cochise County, 36 P. (2d) 559;
City of Frankfort v. Worders, 119 Kan. 652, 240 P. 589; Bidwell Municipal Utility District v.
Knott (Cal. App.), 60 P. (2d) 588; State v. McNamer (Mont.), 205 P. 951.
OPINION
This is an original proceeding in mandamus. The petition upon which the alternative writ
was issued herein shows, inter alia, that between the first Mondays of January and March of
the year 1938, the board of commissioners of said city of Las Vegas, at its regular meeting on
Friday the 4th day of March 1938, did prepare a budget of the amount of money estimated by
the board to be necessary to pay the expenses of conducting the public business of such city
for the then current year. The budget was completed, approved and signed by the governing
board of the city and thereafter on said 4th day of March filed with the city clerk. Thereafter,
on or about the 7th day of said March the said city did deliver to the respondent county of
Clark and its said board of county commissioners a true and correct copy of said budget.
Thereafter the estimated receipts and expenditures for the year 1938, and the aggregate
valuation and tax rates as shown by said budget were duly published. On said 4th day of
March, at its regular meeting the board of commissioners of said city of Las Vegas adopted
the following resolution: Be it resolved by the board of commissioners of the city of Las
Vegas, Clark County, Nevada, that a tax for the year 1938 be and the same hereby is levied
upon all the real and personal property within said city of Las Vegas in the total sum of
$79,350.00, the same being 1 1/2% of the assessed value of all the real estate and personal
property within said city, made taxable by law.
On Thursday the 10th day of March A. D. 1938, the respondents, Kenneth O. Earl, E. F.
Davison and George T. Hanson, as members of the board of county commissioners of said
Clark County, held a meeting in the county courthouse of said county and reduced the said
tax rate for the year 1938, as so fixed by the said city of Las Vegas, from the sum of $1.50
upon each one hundred dollars of the assessed value of all real estate and personal
property within the city of Las Vegas made taxable by law, to the sum of $1.05 per one
hundred dollars of the assessed value of such property and published their action in a
Clark County newspaper under the date of March 19, 193S.
Las Vegas, from the sum of $1.50 upon each one hundred dollars of the assessed value of all
real estate and personal property within the city of Las Vegas made taxable by law, to the sum
of $1.05 per one hundred dollars of the assessed value of such property and published their
action in a Clark County newspaper under the date of March 19, 1938. On March 26, 1938,
said county commissioners prepared and adopted a budget for the amount of money estimated
to be necessary to pay the expenses of conducting the public business of said county for the
years 1938-1939, in which said budget they unlawfully assumed to reduce and then and there
officially declare that they were then and there reducing the said city tax rate for the year
1938, as so fixed by said city, from the sum of $1.50 upon each one hundred dollars of the
assessed value of all real estate and personal property within said city made taxable by law, to
the sum of $1.05 per one hundred dollars of such value.
It is alleged that the board of county commissioners instructed the county assessor, county
auditor, and county tax receiver, that the tax rate of the city of Las Vegas for the year 1938,
was the sum of $1.05 per each one hundred dollars of assessed valuation and instructed the
county auditor to extend the taxes upon the tax roll of the county so as to show that the tax
levy of the city for the year 1938 was the sum of $1.05 and instructed the county tax receiver
to credit into the city account from all tax money received by him as taxes for the year 1938,
upon the real estate and personal property situate within the said city of Las Vegas, such
amount and such amount only, as is represented by taking and computing the sum of $1.05
from and upon each one hundred dollars of such assessed value.
It is alleged that since the 28th day of March 1938, said tax receiver has been receiving
certain taxes upon personal property for the year 1938, situate in the city of Las Vegas, and
has actually credited from such tax money so received, such sums and such sums only as
are represented by taking and computing the sum of $1.05 upon each one hundred dollars
of assessed value of personal property upon which said taxes have been so paid, and that
said tax receiver proposes and threatens to, and unless restrained, will continue to so
credit such tax money, rather than using the tax rate as so levied by said city in the sum
of $1.50 per each one hundred dollars of assessed value of said property.
money so received, such sums and such sums only as are represented by taking and
computing the sum of $1.05 upon each one hundred dollars of assessed value of personal
property upon which said taxes have been so paid, and that said tax receiver proposes and
threatens to, and unless restrained, will continue to so credit such tax money, rather than
using the tax rate as so levied by said city in the sum of $1.50 per each one hundred dollars of
assessed value of said property.
The prayer of the petition is to the effect that the respondents, members of the board of
county commissioners, be commanded to countermand their instructions to the county auditor
to extend the taxes upon the tax roll of said county so as to show that the tax levy of the city
for the year 1938 is the sum of $1.05, and the county auditor be commanded to extend the
taxes upon the tax roll of said county so as to show that the levy of the city for the year 1938
was and is the sum of $1.50, and that the tax receiver of the county of Clark be commanded
to recognize the latter tax levy and to credit to the city accordingly its proper portion of all
taxes for the year 1938 at such rate.
Demurrers to the petition were interposed by respondents, on which the matter was heard,
and respondents were given time to file returns to the alternative writ, which has been done.
Petitioners file replies to the returns and also interposed a demurrer thereto. Respondents'
demurrers to the petition are upon the grounds (1) that the same does not state sufficient facts,
and (2) that this court has no jurisdiction of the subject matter contained in said petitions for
the following reasons:
a. That it does not appear from the petition that petitioners have no plain, speedy or
adequate remedy at law.
b. That petitioners have a plain, speedy and adequate remedy at law under the provisions
of sections 6542 to 6561 N. C. L., and particularly under the provisions of subdivision 7 of
section 6544, section 6432 to section 643S, inclusive, N. C. L., as well as section 6530 N.
C. L.
subdivision 7 of section 6544, section 6432 to section 6438, inclusive, N. C. L., as well as
c. That respondents, or either of them, have not the power to perform the alleged duties.
1-5. Have petitioners such a remedy? It is not to be found in the provisions of law relating
to a county board of equalization cited in respondents' demurrer. The legislature has not
delegated to a county board of equalization the power to levy taxes or to revise a levy made
by any taxing body. It is a board of special and limited jurisdiction having only such powers
as are specially conferred upon it. State v. Central Pac. R. Co., 21 Nev. 172, 26 P. 225, 1109.
The claimed remedy is not provided by section 6530 N. C. L., cited in respondent's
demurrers. The power to reduce or raise the rate of taxation conferred therein applies only to
taxes for county purposes. But it is strongly insisted by respondents that the Nevada tax
commission has general supervision of the entire revenue system of the state and has the
power to raise or lower the tax rate of the counties, cities or other political subdivisions. The
Nevada tax commission was created by an act of the legislature of 1917 to be composed of
the governor of the State, as chairman, and six commissioners appointed by him. Among its
powers are the following:
FirstTo confer with, advise, and direct assessors, sheriffs, as ex officio collectors of
licenses, county boards of equalization, and all other county officers having to do with the
preparation of the assessment roll or collection of taxes or other revenues as to their duties; to
direct what proceeding, actions or prosecutions shall be instituted to support the law. * * *
SecondTo have the original power of appraisement or assessment of all property
mentioned in section 5 of this act.
ThirdTo establish and prescribe the general and uniform rules and regulations
governing the assessment of property by the assessors of the various counties, not in conflict
with law; to prescribe the form and manner in which assessment rolls or tax lists shall be
kept by assessors {and county commissioners shall supply books and blanks for the use of
the assessors in such form), and also to prescribe the form of the statements of property
owners in making returns of their property; and it is hereby made the duty of all county
assessors to adopt and put in practice such rules and regulations and to use and adopt
such form and manner of keeping such assessment rolls or tax lists, and to use and
require such property owners to use, and the county commissioners shall furnish, the
blank statements required by said commission in making their property returns.
in conflict with law; to prescribe the form and manner in which assessment rolls or tax lists
shall be kept by assessors (and county commissioners shall supply books and blanks for the
use of the assessors in such form), and also to prescribe the form of the statements of property
owners in making returns of their property; and it is hereby made the duty of all county
assessors to adopt and put in practice such rules and regulations and to use and adopt such
form and manner of keeping such assessment rolls or tax lists, and to use and require such
property owners to use, and the county commissioners shall furnish, the blank statements
required by said commission in making their property returns.
FourthTo require assessors, sheriffs, as ex officio collectors of licenses, and the clerks
of the county boards of equalization, and all other county officers having to do with the
preparation of the assessment roll or collection of taxes or other revenues, to furnish such
information in relation to assessments, licenses, or the equalization of property valuations,
and in such forms as said commission may demand.
FifthTo summon witnesses * * * [serve the same and administer oaths.]
SixthTo make diligent investigation with reference to any class or kind of property
believed to be escaping just taxation; and in pursuance whereof, said commission, or any
commissioner thereof, may examine the books and accounts of any person, copartnership, or
corporation doing business in the state, when such examination is deemed necessary to a
proper determination of the valuation of any property subject to taxation, or the determination
of any licenses for the conduct of any business, or the determination of the net proceeds of
any mine.
SeventhTo require boards of county commissioners to submit a budget estimate of the
county expenses for the current year in such detail and form as may be required by the
commission; to require boards of county commissioners to increase or decrease the county
tax rate of their respective counties to produce the net revenue estimated as necessary
for the conduct of such county government, as appears from such budget; to require
county boards of education and district school trustees and all school officers having
control over any school expenditures in any district in which a special tax is to be levied
during the current year, to submit a budget estimate of the expenses for which such tax is
levied in such detail and form as may be required by the commission.
commissioners to increase or decrease the county tax rate of their respective counties to
produce the net revenue estimated as necessary for the conduct of such county government, as
appears from such budget; to require county boards of education and district school trustees
and all school officers having control over any school expenditures in any district in which a
special tax is to be levied during the current year, to submit a budget estimate of the expenses
for which such tax is levied in such detail and form as may be required by the commission.
To require cities, municipalities and towns and the governing boards thereof to submit budget
estimates of the expenses for the government of such city, municipality or town for the
current year, in such form and detail as may be required by the commission, and to require the
governing boards of any municipality, city or town to increase or decrease the tax rate therein
to produce the net revenue estimate for the conduct of such municipality, city or town in said
budget.
EighthThe commission shall have, in addition to the specific powers enumerated, the
power to exercise general supervision and control over the entire revenue system of the state.
NinthThe commission shall have the power to require county assessors, county boards
of equalization, any county auditor or county treasurer to place upon the roll any property
found to be escaping taxation.
TenthThe commission shall have the power to authorize the secretary to hold hearings
or make investigations, and upon any such hearing the secretary shall have the authority to
examine books, compel the attendance of witnesses, administer oaths and conduct
investigations.
The enumeration of the foregoing powers shall not be considered as excluding the
exercise of any needful and proper power and authority of said commission.
Stats. 1917, pp. 328, 329, c. 177, sec. 3, Comp. Laws, sec. 6544.
Petitioners contend that no remedy is afforded in the foregoing statute against the acts
alleged, because the power to revise a levy is not conferred therein. If such revisory power
resides in the commission it must be by virtue of subdivision seven, which was not in the act
of 1913 creating the first tax commission of this state. Stats. 1913, p. 175, c. 134. In all other
respects the powers conferred in that act were substantially the same as in the later act. The
former act was under consideration by this court in State v. Boerlin, 38 Nev. 39, 144 P. 738,
and the court, after an exhaustive analysis of its provisions, including the provision that the
commission is hereby empowered to exercise general supervision and control over the entire
revenue system of the state, section 4, held that the commission was not empowered to order
a board of county commissioners to reduce its rate of county taxation.
6. Does the seventh subdivision supply an administrative remedy? If so, petitioner must
exhaust such remedy before applying to this court for relief.
The day following the creation of the tax commission the legislature passed an act
regulating the fiscal management of counties and cities and other governmental agencies,
commonly called the budget law. Stats. 1917, p. 249, c. 149, which has been held to provide a
system complete in itself for the raising of revenue for county and city purposes. Carson City
v. County Commissioners, 47 Nev. 415, 224 P. 615. By said subdivision seven, budgets made
pursuant to said budget law are required to be submitted to the tax commission. Furthermore,
by said subdivision seven, as seen above, the tax commission, in case of counties, is
empowered to require boards of county commissioners to increase or decrease the county tax
rate of their respective counties to produce the net revenue estimated as necessary for the
conduct of such county government, as appears from such budget; and in case of cities, to
require * * * the governing boards * * * to increase or decrease the tax rate therein to
produce the net revenue estimate for the conduct of such * * * city * * * in said budget."
tax rate therein to produce the net revenue estimate for the conduct of such * * * city * * *
in said budget.
7. We are of the opinion that the remedy intended in a case such as this is given in the act
creating the tax commission. As we have seen, subdivision eight of the tax commission law
provides: The commission shall have, in addition to the specific powers enumerated, the
power to exercise general supervision and control over the entire revenue system of the state.
True, this subdivision was in the old tax commission act and was considered in State v.
Boerlin, supra, as not empowering the commission to order a board of county commissioners
to reduce its rate of county taxation. But, as pointed out by the court in that decision, there
was then no provision in the tax commission act empowering it to order a board of county
commissioners to increase or decrease the county rate of taxation. In the later tax commission
act it is specially given that power as to counties, cities, municipalities and towns. In addition,
as previously stated, these bodies are required in the later act to submit a budget estimate of
government expenses for the current year. Why should these governmental agencies be
required to submit a budget estimate of their expenses for the current year in such detail and
form as may be required by the commission, if its general supervision and control was to be
limited in some respects not apparent from specific provisions or plain implications?
8. It is argued that the specific provisions empowering the commission to order the boards
to increase or decrease the tax rates are inoperative because the amount of money necessary to
pay the expenses of conducting the public business the county and city, having been already
estimated in the budgets based upon the receipts and expenditures for the current year, and
the tax rate estimated accordingly, no other rate could be established.
9-11. A literal reading of the provisions might indicate such a result. But to so interpret
them would be to attribute to the legislature an absurdity; an inference never indulged in
if avoidable.
attribute to the legislature an absurdity; an inference never indulged in if avoidable. Every
word and clause in an act must be given effect if possible and none rendered meaningless by
overnice construction. We think the provisions of said subdivision seven, considered in
connection with the other provisions of the act heretofore set out, and its spirit and purpose
manifest an intention to bring the county revenue system as well as the revenue system of
cities, towns, municipalities and school districts under review and final adjustment by the tax
commission; and that this applies to rates as well as to valuations and other matters connected
with the machinery of raising revenue for their support.
The tax commission is well adapted to that end and the constitutional provision limiting
the total tax levy for all purposes, including levies for bonds, within the state, or any
subdivision thereof, to not to exceed five cents on one dollar of assessed valuation, makes the
duty of adjustment all the more imperative. If this should prove inequitable in practical
operation, the legislature will doubtless devise some method of refinancing the political body
which may be affected.
12, 13. It has been suggested by petitioners that if the tax commission is accorded the
power to revise a tax levy, then the constitutional question will arise whether subdivision
seven can stand at all, being a delegation of tax levying power to a board created by
appointment, and not elected by the people. We suggest in turn, that the tax commission is
not entirely an appointive body, its principal member and chairman being the governor, the
principal elective officer of the state. However, this court will not undertake to decide a
constitutional question on a mere suggestion, but will, in such a case, presume that the law
under consideration is constitutional.
Respondents' demurrers are sustained and the petition and alternative writ dismissed.
Petitioners' motion to strike was denied.
____________
58 Nev. 483, 483 (1938) In Memoriam, George F. Talbot
IN THE SUPREME COURT OF THE STATE OF NEVADA
____________
In the Matter of the Death }
Order

of Honorable George F. Talbot }
It having come to the attention of the Court that the Honorable George F. Talbot, former
Chief Justice of this Court has departed this life, it is ordered that Albert D. Ayres, George S.
Brown, John A. Sanders, J. M. McNamara, and George L. Sanford, Esqs., be and they are
hereby appointed a committee to draft and to present to this Court suitable resolutions
expressing the sorrow of the Bar at the passing of the deceased.
Dated January 18, 1938.
B. W. COLEMAN,
Chief Justice.
E. J. L. TABER,
Associate Justice.
EDW. A. DUCKER,
Associate Justice.
To the Honorable the Supreme Court of the State of Nevada:
Your committee appointed on January 18, 1938, to draft and present to the Court suitable
resolutions expressing the sorrow of the Bar in the passing of Honorable George F. Talbot,
begs leave to report as follows:
Honorable George F. Talbot was born in Ledyard, Connecticut, on April 16, 1859; died in
Los Angeles, California, January 16, 1938; age seventy-nine years. He moved to Nevada with
his parents when he was of the age of about ten years and from that time on spent all of his
entire life except the last few years in the State of Nevada. After studying law at Elko in the
offices of R. B. Bigelow, later Chief Justice of the Supreme Court of Nevada, Judge Talbot
was admitted to all law courts of the State and began his law practice in 1SS1.
58 Nev. 483, 484 (1938) In Memoriam, George F. Talbot
in 1881. He held public offices as follows: District Attorney of Elko County, 1884-1886;
District Judge of the Fourth Judicial District Court, 1894-1902; Supreme Court of Nevada,
1903-1914; Regent of the University of the State of Nevada, 1920-1930. For the last several
years he has practiced law mostly in California.
He was known as a Judge of outstanding ability, and particularly rose to his greatest
heights in mining cases. From his first admission to the Bar during all of his life in Nevada he
was a prominent and outstanding citizen. We feel sure that the entire Bar and all the people of
Nevada who knew him regret his passing with deep sorrow. We therefore recommend the
adoption of the following resolution:
Resolved, That this Court hereby expresses its sorrow and grief at the passing from this life
of George F. Talbot, former Chief Justice of this Court; that we hereby express a feeling of
profound respect for his services to the Court, to the State of Nevada, and to its people, and
do order that this resolution be spread upon the minutes of this day's proceedings, and that
when the Court adjourns this day it will do so out of respect to his memory.
Dated January 25, 1938.
Respectfully submitted,
Albert D. Ayres,
George S. Brown,
John a. Sanders,
J. M. McNamara,
George L. Sanford,
Committee.
The foregoing resolution was adopted by the Court and ordered spread upon its minutes
and published in the next volume of the Nevada Reports.
58 Nev. 485, 485 (1938) In Memoriam, Benjamin Wilson Coleman
PROCEEDINGS
in the
SUPREME COURT OF THE STATE OF NEVADA
____________
Tuesday, March 28, 1939.
Present Hon. E. J. L. Taber, Chief Justice;
Hon. E. A. Ducker, Associate Justice;
Hon Wm. E. Orr, Associate Justice;
Committee, and Officers of the Court.
The committee heretofore appointed to draft appropriate resolutions expressing the sorrow
of the Court and Bar due to the death of Honorable Benjamin Wilson Coleman, late Chief
Justice and Justice of this Court, presented the following:
MEMORIAL
To the Honorable, the Supreme Court of the State of Nevada:
Your Honors have courteously delegated to us the preparation of a suitable record to
commemorate the life, character, and work of the Honorable Benjamin Wilson Coleman, and
the grief of the State Bar of Nevada over the passing of your distinguished associate.
From a life replete with incidents and activities, we briefly note the following:
BENJAMIN WILSON COLEMAN
Born at Ballsville, Virginia, July 1, 1869, the year that marked the completion of the first
transcontinental railway. Educated at Richmond College, now the University of Richmond,
where he graduated with the degree of LL.B. in 1892. Practiced law in Denver, Colorado,
1893 to 1897, and at Cripple Creek, Colorado, 1897 to 1906. Married Martha L. Attleton of
Boston, Massachusetts, June 6, 1906. Removed to Ely, Nevada, in 1906, and practiced law
in this State until elected to judicial office.
in 1906, and practiced law in this State until elected to judicial office. Judge of the Ninth
Judicial District Court, 1911 to 1914. Justice of the Supreme Court of Nevada since 1914,
being reelected in 1920, 1926, 1932, and 1938. Chief Justice of the Supreme Court,
1919-1920, 1925-1926, 1931-1932, and 1937-1938. Lecturer on law of contracts at
Northwestern University in the summer of 1925. Member of the Narcotic Research
Association. Three times Chairman of the Board of Visitors of the University of Nevada.
Member of the American Bar Association and the State Bar of Nevada. Member of the
society for the Preservation of Virginia Antiquities. Member of Phi Beta Kappa and Pi
Gamma Mu. Prominent in Masonic life, being a member of Knights Templar, Shrine, and
Knights of Constantine and holding various offices of trust and high honor in the Masonic
order. A member of, and prominent in, the Knights of Phthias. Died in Carson City, Nevada,
February 25, 1939.
It is given to few men to be endowed with those qualities of personality, character, and
mind which make them eminently fitted for judicial service. The ideal judge possesses a
personal dignity and poise which commands respect for the court; an intensive knowledge of
the law which inspires ready acceptance of and respect for his rulings; that perfect sense of
justice that enables him to do equal and exact justice between litigants; that degree of
humanity which makes him temper justice with mercy; and finally, that combination of
characteristics that we attempt to express by the words judicial temperament.
To you who occupied this bench with him, and likewise to us who appeared before him as
advocates, it is equally well known to what a remarkable degree Justice Coleman possessed
these essential qualities of the ideal judge. We know that the Creator gave him these qualities
which he developed by his own untiring efforts, and we realize how unsparingly he drew
upon them in the service of the Bar and State.
The prominence which he reached was gained from those qualities of mind and personal
energy which enabled him to overcome step by step the mysteries and hardships which
confront the young lawyer. He was a student of the law, alert and keen. He gave careful and
systematic study to the problems presented to him, and he came to every discussion and
decision with thorough preparation.
We here quote from the tribute to Justice Coleman by one of his distinguished judicial
associates:
He was always ready to bear his share of the duties of the Court, and more than his
share if the necessity arose. He was helpful to the highest degree. His great store of
learning and background of experience made him a wonderful helper indeed. His
discussion of cases submitted to the Court was always intelligent and direct, and carried
on with the utmost candor. In these discussions he committed his opinions to his
associates without reserve and paid the utmost deference to theirs. His mind was an
open forum in which suggestion, argument, and authority received candid
consideration. Withal, he was kindly, considerate and courteous.
While Justice Coleman always gave the cases mature consideration, he wrote
opinions with great facility, and in those assigned to him an opinion was always
delivered to his associates in prompt time. When he died he left no unfinished work of
his for others.
To his closest friends he had a charm and friendly intimacy and a genial appeal that
bespoke love of those human relationships that mean so much in life. He was interested in the
other man and in his successes and failures. In social gatherings his vivacity and wit and
quick repartee added charm to the occasion. The words that Dr. Angell applied to John Hay
might appropriately be applied to Justice Coleman: In company with a group of congenial
spirits he was jolly, companionable, sometimes satirical and always the best of story
tellerswas prone to be reticent, exclusive, and shy, but the few who were made happy
by his confidence were held in the bonds of the strongest manly friendship."
with a group of congenial spirits he was jolly, companionable, sometimes satirical and always
the best of story tellerswas prone to be reticent, exclusive, and shy, but the few who were
made happy by his confidence were held in the bonds of the strongest manly friendship.
Courteous to the Bar, preeminently fair and able in his decisions, he stimulated in the
profession a respect, trust, and affection which increased as he continued on the bench, and
the Bar of Nevada deeply grieves at the all too early termination of his life of usefulness and
honor and their loss of a sincere friend.
We respectfully suggest that this report be spread upon the minutes of this Court and that
your Clerk be directed to transmit to Mrs. Coleman an authenticated copy thereof.
Dated this 28th day of March 1939.
Robert M. Price,
Chairman,
John E. Robbins, Chas W. Cantwell,
Chas. Lee Horsey, George S. Brown,
Geo. A. Montrose, H. W. Edwards.
The Young Lawyer's Club also presented the following:
MEMORIAL
BENJAMIN WILSON COLEMAN
Judge Benjamin Wilson Coleman was born in Ballsville, Virginia, on July 1, 1869.
His education was received in the Virginia schools and he was graduated from the
University of Richmond with an LL.B. degree in 1892. He attained high honors in being
elected a member of Phi Beta Kappa, the oldest honorary scholastic society in this county,
and further honors in being elected to Pi Gamma Mu.
Judge Coleman came west as a young attorney, settled and practiced in Aspen and Cripple
Creek, Colorado, and later served as a Deputy District Attorney in one of the important
Colorado mining counties.
He came to Ely, Nevada, in 1906, and three years later was elected District Judge. Judge
Coleman was elevated to the Supreme Bench of this State in 1914, a position to which he was
successfully reelected in 1920, 1926, 1932, and 1938.
By his knowledge of the law, his astuteness, and his positive passion for conformity to the
principles of right, he contributed immeasurably and everlastingly to the solid foundation of
justice, upon which the superstructure of the State is built.
His passing is of a particular loss to the younger members of the Bar. His sympathetic
understanding, his always extended hand of help and encouragement to the young man, have
left indelible impressions that molded character and integrity in the young
lawyerimpressions that will be manifest in the years yet to come, when those now young
will infuse into future generations his spirit and fidelity to our professionimpressions that
will be manifest even when his name has been lost from memory by the inexorable passing of
time.
Non recedat memoria eius, et nomen eius requiretur a generatione in generatione.
Be it, therefore,
Resolved, That the members of the Young Lawyers Club extend to his stricken widow and
family their deepest sympathy, and that a copy hereof be forwarded to Mrs. Coleman.
Respectfully submitted this twenty-eighth day of March 1939.
YOUNG LAWYERS CLUB.
Thomas O. Craven,
Alan Bible,
Oliver Custer.
In addition to the above memorials, members of the Bar and of the Court addressed the
Court as follows:
Robert M. Price, Esq.:
I did not contemplate making any remarks other than through the memorial which the
committee had prepared.
through the memorial which the committee had prepared. I was on rather intimate terms with
Judge Coleman, and I have thoroughly appreciated the fine sterling qualities in the man and
his ability as a judge and a lawyer. At meetings where I have been present and he has also
been there, his geniality infused itself through the group. He added greatly to the charm of the
meetings which I had the privilege of attending with him. He was thoughtful, and, as stated in
our resolutions, he was interested in the other fellow and in his successes and his failures. He
had that broad point of view that so comparatively few persons have. I feel there has been a
great loss to the State, likewise to the profession, in his early passing.
George S. Brown, Esq.:
It was my privilege to have known Justice Coleman probably longer than anyone else
present here, on the Bench or at the Bar. I became acquainted with him very shortly after he
removed from Colorado to Ely. At that time I was District Judge, holding court in White Pine
County as well as in other counties. Soon after his arrival in Ely I met Judge Coleman, then
Ben Coleman to me, as he was for many years, and soon came to appreciate his very fine,
sterling character, his high feeling with reference to the ethics of the profession, and his
ability as a lawyer. He appeared before me in a number of cases over there in White Pine
County, was one of my successors on the bench there, and I am proud, gentlemen, of my
successors.
I knew Judge Coleman perhaps less intimately after he came over here to the Supreme
Court than you gentlemen who were associated with him here for years, but I always valued
his friendship and found pleasure in our personal meetings. He had that geniality of manner,
that charm and magnetism which added to the enjoyment of every gathering in which he was
present. I saw him only a few days before his demise, and news of his death came to me, as it
came to all of us, as a great shock.
us, as a great shock. We all have lost a friend. He was a man easy to make friends with
because his character invited friendship. I know that I, personally, lost a friend when he went
away. We of the Bar, as well as you of the Bench, mourn his going. We feel that his spirit still
will be with us. We cannot fail to cherish his memory, because he was of the kind of man one
does not forget.
Charles A. Cantwell, Esq.:
Your Honors, may I tell you how deeply I feel the honor that you gentlemen have
conferred upon me in asking me to serve upon the committee charged with the preparation of
the record which has been submitted to you by Mr. Price. My signing of that memorial was
not a mere formality. I wish at this time to do nothing more than assure you that personally I
feel everything that is therein expressed. And may I ask you now not to take the brevity of my
remarks on this occasion as indicating any lack of sincerity.
H. W. Edwards, Esq.:
I had both the privilege and the honor of knowing Judge Coleman when I was a young
man living in Ely, Nevada. He passed my house on his way home and stopped to chat with
me almost every evening. I was a frequent visitor at his Chambers at his invitation, where he
encouraged and helped me in my aspiration to become a lawyer.
Words are futile things to express my sorrow at the passing of Judge Coleman. He was a
friend of mine. He fulfilled the qualifications that revealed the true character of a man, for
The true place to take the measure of a man is not in the field or forum, not in the
market place or the Amen corner, but at his own fireside. For there he lays aside the
mask that all men wear and you may tell whether he is imp or angel, king or cur, hero
or humbug.
or humbug. It matters not what the world may say of him. It may crown him with mays or pelt
him with bad eggs. He may cry Hallelujah night and morn until he shakes the eternal hills, but
if his children dread his homecoming and his wife has to swallow her heart every time she
must ask him for a five-dollar bill, he is a fraud of the first water; but if his children rush to
great him at the doorway and love's glorious sunshine illumes the face of his wife when she
hears his footfall, you may tell that is pure gold, and the humbug never gets that near to the
Great White Throne of God.
George A. Montrose, President of Nevada State Bar:
I have had a long acquaintance with Judge Coleman, since my newspaper days, when he
first came to the State. It so happened that a little joke arose at one time and I was dubbed
Colonel, and you who have seen us together have always heard him call me Colonel.
A Nevada poet once said:
There are times for retrospection
When the past is brought to view
And you mass the faded garlands,
In the garden where they grew.
And some with rainbow hues are tinged,
Round others shadows play.
The first were well to cherish,
And the last to cast away.
There were no shadows around the life of Judge Coleman. He walked in the broadest
daylight; he was always there to be seen, to be heard.
We of the State Bar of Nevada are deeply grieved at his passing, and feel we have indeed
lost a friend. When the State Bar of Nevada was incorporated, Judge Coleman was one of its
best friends; and throughout the years that have followed he remained one of its best
friends.
the years that have followed he remained one of its best friends.
John A. Sanders, Former Justice and Chief Justice of the Supreme Court of the State of
Nevada:
It is a personal satisfaction to me to know that this beautiful tribute so earnestly couched in
affectionate words will be recorded in the minutes of this Court and live as a memorial and a
pleasant chapter in whatever volume of the Nevada Report it may be published, for the
edification of the young members of the Bar, that they may read it and be careful to thereby
measure their course in the practice of the law.
I shall not even mention the sacred personal relations that existed for eighteen years
between Judge Coleman and myself as Justices of this Court. We were born in the same
State; and in that connection, it had been said that it would never do to have two members of
the Supreme Court from the same State. Justice Coleman's reply to this criticism was: If you
go to the law library, read the reports and review the history of Virginia, you will find that the
high mark of Virginia history was in its judiciary and in its legal profession.
With unsuppressed emotion, I concur in the resolutions and the beautiful tributes to his
character and memory.
Gray Mashburn, Attorney-General of Nevada:
I did not expect to be called upon or to have anything at all to say on this occasion, as the
program seemed quite full and complete. I have not, therefore, prepared any remarks and
what I say must, therefore, be entirely extemporaneous.
I had known and had been quite closely associated with Justice Coleman many years prior
to his untimely and tragic passing to the Great Beyond. As I saw it, his outstanding
characteristics were his frankness and sincerity. Above everything else he was frank and
sincere; but, for all that, he was very tolerant toward those who differed in opinions from
him.
those who differed in opinions from him. I have never known or been associated with a man
who had more tolerance for the faults and frailties of others than had Justice Coleman.
Although tolerant toward the views of others, he was courageous and outspoken in his own
views and opinions. He was a man any person might well be proud to count as a friend; and
his friendship was strong, ardent, and sincere, and his loyalty to his friends was constant.
There was no wavering or uncertainty in him or in his views. He knew his mind and did not
hesitate to express it, candidly and with frankness, but never so as to intentionally or
purposely and unnecessarily offend.
The Judiciary of this State has lost an outstanding jurist, and the Bench has been enriched
by his services upon it. The State and Nation a loyal and substantial citizen, the community a
public-spirited supporter, and his family a loving and considerate husband and father. He was
an industrious and assidious student and worker, and tireless in his efforts to perform his
official duties with justice, fairness, and impartiality to all concerned.
In closing, may I recite the following beautiful verse as representing my thought of the end
when it came to him.
And here, at last, is sleep, the gift of gifts,
The tender nurse who lifts
The soul grown weary of the waking world,
And lays it, with its thoughts all furled,
Its fears forgotten, and its passions still,
On the deep bosom of the Eternal Will.
Justice Wm. E. Orr:
It was not my privilege to know Justice Coleman intimately. Distance between our
respective abodes made frequent visits impracticable. But the times I have had the privilege
of meeting Justice Coleman remain with me as pleasant memories.
The knowledge of the sterling qualities of Judge Coleman was not confined to the circle
of his intimates; he was known, by his accomplishments, beyond the boundaries of the
State.
Coleman was not confined to the circle of his intimates; he was known, by his
accomplishments, beyond the boundaries of the State.
To those of us who have occupied the bench in the District Courts throughout the State his
decisions were as friendly beacons, directing our efforts to interpret the law in accordance
with sound principles and a high sense of justice.
I join with the members of the Bar and the Bench in saying that I sincerely believe that in
the passing of Judge Coleman the Bench lost a great Justice, and the State of Nevada a great
citizen.
Judge Coleman has gone, but his work will endure.
Chief Justice Taber:
If there is one man who knows better than any other the outstanding and admirable
qualities and traits of the late Justice Coleman, it is surely Justice Ducker, who for so many
years sat with him and presided in this Court. It seems particularly fitting and appropriate that
we should call upon Justice Ducker to speak for the Court on this occasion.
Justice Ducker:
The committee has returned into this Court, to remain always on its records, a most
appropriate memorial for our late associate, Justice Benjamin W. Coleman. I wish to join
Chief Justice Taber in thanking the chairman and the other members of the committee for this
memorial. I also join the Chief Justice in commending the younger attorneys for their
testimonial of respect and admiration, as well as the other attorneys for their tributes.
While he was a friend of all the members of the Bar, Justice Coleman was particularly a
friend of the younger attorneys. He sympathized with them in their struggles, and encouraged
them in their ambitions. He sought every opportunity to counsel them. They have indeed lost
a guide, philosopher, and friend.
Justice Coleman devoted many years of his life to the service of this State and died in that
service. They were years that were effective and fruitful in intellectual achievement. Before
his elevation to this Bench he served with distinction a full term as District Judge in a District
Court of this State. The bright history of our Supreme Court has been greatly enriched by
reason of the faithful and intelligent service he rendered here during a long period of over
twenty-four years. His judicial opinions rank very high in the legal world. They are couched
in simple and forceful language, denoting clearly what was intended and decided. They bear
the impress of a trained intellect.
No personal or other extraneous consideration ever entered his mind in the performance of
his duties as a judge. He never looked beyond the confines of a case for inspiration, but
derived it from the record before him through the process of a mind facile in reaching sound
conclusions and bent on the attainment of justice. I am sure the lawyers who appeared before
him in the respective cases through the years trusted implicitly in his judicial integrity, and
admired his great abilities. It was not alone in the law he was learned; his scholastic
attainments were varied.
His private character, like his public character, was one of stern integrity. He was a man of
principle, purpose, and will, impulsive by nature, yet withal kindly and considerate in
disposition. The rich humanity of this character, the charitable impulses of his heart, were
manifested by many generous acts. His rare conversational powers and altogether charming
personality made him a delightful companion in private and social circles. He was devoted to
his family, to whom he leaves the rich inheritance of a spotless name. He was deeply
interested in the welfare of his neighbors and the people generally. It was my privilege to
serve with him in this Supreme Court constantly during the past twenty years. He was an
ideal associate, not only on account of his bountiful store of legal knowledge and aptitude for
juristic work, but because of that fine personality which made contact with him in the
solution of mutual problems a pleasure indeed.
aptitude for juristic work, but because of that fine personality which made contact with him in
the solution of mutual problems a pleasure indeed. His uniform willingness and anxiety to be
helpful in this respect made less arduous the labors of the Court. His experience and learning,
his keen discriminating mind and diligent methods equipped him to cope with legal questions
with great facility. The opinions of the Court which fell to his lot to write were always
promptly submitted for the consideration of his associates. He died in the fullness of his fame,
leaving no unfinished work of his for others to do. Justice Coleman kept faith and finished
the course in a courageous, manly, and forthright manner. He has taken his place in the
temple of memory beside the former great jurists who have adorned this Bench.
The years we spent together in this Court were happy years of congenial
employmenthappy years of striving and cooperating towards the objectives of this Supreme
Tribunal. They brought us into the closest friendship. I shall miss him in the daily round of
life as one familiar and beloved. His figure in the moving crowd before my memory will
always speak of that rare fellowship which I had the precious privilege to enjoy. Nothing low
or mean ever came near the mind or heart of Justice Coleman. He lived well. He laughed
freely. He thought deeply, and he worked hard. He died poor in worldly goods but rich in the
golden opinions of those he served.
Chief Justice Taber:
It was just thirty-two years ago today that Justice Coleman was admitted to the Bar of this
State. I first knew him in Ely, when he, Judge Ducker, and I were district judges. I remember
how cordially I was received in his home, both by Mrs. Coleman and himself.
I am so thoroughly in accord with everything that has been said here today that I shall not
take the time to say many of the things I should like to say.
In the four years during which I have been associated with Justice Coleman, I have been
placed in a position which enables me to bear witness to the brilliancy of his intellect, his
uprightness as a judge, and the purity of his private life.
Ten years ago, as Chief Justice of this Court, Judge Coleman, speaking from the Bench
concerning another eminent judge, stated that the highest tribute he could pay him was to say
he was an ideal man, an ideal citizen, and an ideal judge. How appropriate and fitting those
words are now applied to Justice Coleman himself.
Mr. Price and other members of the committee, the Court thanks you. And Mr. Craven and
Mr. Bible, we thank your committee also. We appreciate the fact that you have all given
generously of your time in order that fitting memorial tributes might be paid to the memory of
Justice Coleman, and such tributes perpetuated in the records of this Court. And we thank
each and every one of you who have addressed the Court for the kind words you have spoken,
tributes so richly deserved by our departed friend and brother, and with which we are most
completely in accord. We extend our profound and heartfelt sympathy to Mrs. Coleman, the
children, and the other relatives. Their consolation must come from the knowledge and
realization of a noble life spent in the unselfish service of God, country, and State, and in
loving devotion to his family and his fellow men.
Mrs. Clerk, it is now ordered that a copy of the resolutions presented by the Committee for
the Young Lawyers' Club be spread upon the minutes of this Court, and that copies of them
be sent to the family of the deceased and to the Secretary of the State Bar of Nevada. And as a
mark of the esteem and respect of the Bench and Bar of this State, it is now ordered that the
resolutions this day presented by the Committee of the State Bar of Nevada appointed for that
purpose be received, filed, and entered at length upon the records of the Court, that certified
copies of them be sent to the family of the deceased, and to the Secretary of the State Bar
of Nevada, and that said resolutions be published in the next volume of the Nevada
Reports.
family of the deceased, and to the Secretary of the State Bar of Nevada, and that said
resolutions be published in the next volume of the Nevada Reports.
And as a further testimonial to the revered and honored memory of Justice Coleman, this
Court, in which he has so ably served and presided for so many years, now stands adjourned.
____________

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